Crim Law Review Book 2 Justice Peralta Transcript

Revised Penal Code Book 2 Transcript of Justice Peralta Lectures
4D 2007 1
REVISED PENAL CODE: BOOK TWO

Article 114 Treason

There are two ways of committing the crime of treason. But the first thing that we will have to remember
that treason can only be committed in times of war. It cannot be committed in times of peace. Treason
may be committed when our country is at war with a foreign country. There is an existing war between our
country and a foreign country. And, therefore, treason is committed when there is war. That means that a
person joins the war against our country. It may be committed by Filipino citizens or even alien residents.
So thats number one - levying war. Levying war is simply going at war against our country. The other one
is adhering to the enemy giving them aid or comfort.

So, that is now different because with the second form of committing the crime of treason, the offender
does not actually join the enemy in levying war against our country, he just adhered to the enemy. That
means that he supports the cause of the enemy by giving aid or comfort. Like giving comfort women.
Giving comfort women is not giving aid or comfort. Giving aid or comfort is something that will promote the
cause of the enemy. When you give aid or comfort, you probably give them places to hide or to tell him
the location of the Philippine Armed Forces and so on. That is giving aid or comfort - those that will
promote the cause of the enemy.

Now, in the crime of treason, because of the nature of the crime, there is a requirement that in order that
one may be convicted, at least two witnesses should testify to the same overt act. But that two-witness
rule is applicable only if the crime of treason falls under the second form that is adherence. If you want to
prove adherence to the enemy, then there should be two witnesses who should testify on the giving aid or
comfort. The two-witness rule does not apply to levying war because levying war, one witness will be
sufficient because they are actually joining the enemy. But when you prove adherence to the enemy and,
therefore, you want to prove giving aid or comfort, then the two-witness rule will be apply. Treason may
also be proved if the offender confesses to court, that is, when he pleads guilty or confesses to the
commission of the crime of treason.

Article 115 Conspiracy and proposal to commit treason; Penalty

Proposal and conspiracy to commit the crime of treason. When one proposes, there is already a crime,
even if it is not accepted. But when the proposal is accepted, as you learned in Article 8, then it is
becomes conspiracy. So, youre now liable.

Article 116 Misprision of treason

Misprision of treason is a very important crime because it is a crime of omission. You do nothing in order
to be liable. What is punished is that is the failure to inform the authorities of the existence of a crime of a
conspiracy to commit the crime of treason. It is not failure to inform the authorities of an existing
commission of treason. What is provided for is the existence of a conspiracy to commit the crime of
treason - that is the meaning of misprision. But if there is an ongoing treason, and you do not inform the
authorities, you are not liable. You are only liable for a crime of misprision of treason if you fail to inform
the Fiscal, the Mayor, and Governor of the existence of a conspiracy to commit the crime of treason.

What is required to be reported to the authorities is a conspiracy to commit the crime of treason and an
actual crime of treason. Conspiracy to commit the crime of treason means before the commission of the
crime of treason. If you fail to report to the authorities as required under Article 116, then you are liable.


4D 2007 2
Articles 117 to 121

Espionage. Flight to an enemy country, violation of neutrality, correspondence with a foreign country
wherein we are at war, correspondence with a country wherein is at war with our country, violation of
neutrality, flight to an enemy country. Hindi na kailangan i-explain iyan. Yung espionage lang marahil ang
kailangang i-explain sa 117.

There are two acts that are punished in the crime of espionage. The gathering of data from those
mentioned by the law, military installation, location, vocation of the military, installation to the Philippines
or naval bases, and so on - that is espionage. The other one is because you are in possession of data
pertaining to military installations and so on, and then you pass it to an enemy of a foreign country or
representative of a foreign country, then that is the crime of espionage. The flight to an enemy country,
correspondence, violation of neutrality, no need to explain.

Article 122 Piracy in general and mutiny on the high seas

The crime of piracy and qualified piracy under Article 122. Now, piracy was amended you know, piracy
was amended by Republic Act 7659 sometime on December 31, 1993. Before the amendments, in piracy
under 122 and qualified piracy in 123, piracy was defined as a crime committed by person in the high
seas under other than the crew member in the high seas. That was the original crime of piracy. And then
because of the amendment in the Republic Act 7659, piracy is now defined and it now included piracy
within Philippine waters and, therefore, is now defined as a person or persons other than the crew
members or passengers - other than the crew member or passenger - in the high seas or within
Philippine waters by seizing the vessel or part of the vessel. In other words, the piracy now in 122 refers
to the high seas and Philippine waters. Originally, it was only piracy in the high seas.

Piracy is actually robbery in the high seas. The meaning of piracy in the high seas or Philippine waters is
simply a crime of robbery, but the robbery is committed inside the vessel. And you commit the crime of
robbery by seizing the vessel. But you do not call it robbery in the high seas.

Now, there is also a law that provides for a crime piracy within Philippine waters, another law. This is
Presidential Decree 532. PD 532 provides that the crime of piracy within Philippine waters is committed
by any person by seizing the vessel or taking any part of the vessel or appurtenance thereto, including
cargoes of passengers or crew members.

Practically, they are the same. Piracy of Article 122 is practically the same as the piracy in 532 because in
532, although it is limited only to piracy in the Philippine waters, there is also a crime of piracy in the
Philippine waters under Article 122. So the question is, is there is still a crime of piracy in the Philippine
waters under Presidential Decree 532? Or that piracy within Philippine waters in PD 532 is still good law
despite the amendment in Article in 122 where the Article 122 includes now piracy within Philippine
waters, di ba? So thats the question.

One of the cases decided by the Supreme Court in year 2001 (People v. Roger Tulin) that was answered.
The decision of the Supreme Court is that PD 532, piracy within Philippines is still good law. The reason
is that in a crime of piracy within Philippine waters and in the high seas under Article 122, the crime can
only be committed by outsiders because the law says persons other than the crew members or
passengers.

So if the passengers rob a co-passenger that cannot be piracy under 122 because piracy can only be
committed by outsiders because the law states persons other than the crew members or passengers. So
if a vessel, therefore, sailing within Philippine waters and then that vessel now is attacked by outsiders,
they get the cargoes and the baggage of the passengers are forcibly taken by those persons, then the
crime is piracy in Philippine waters under Article 122 because it is a crime committed by persons other
than the crew members or passengers.


4D 2007 3
But if supposing the vessel is sailing within Philippine waters and then one of the passengers poked a
gun at a co-passenger or poked a gun at the captain and then seized the vessel and then runs away with
the equipment of the vessel and the vessel is running or sailing within Philippine waters, committed by a
passenger, that cannot be anymore a crime of piracy under the Revised Penal Code under Article 122,
because Article 122 can only be committed by persons other than crew members or passengers.

So, because the crime of piracy is committed by a passenger, then the law that is violated is PD 532
because in Presidential Decree 532, the one who can commit a crime of piracy within Philippine waters is
any person. It does not provide that it can only be committed by persons other than crew members or
passengers. So if it is sailing within Philippine waters, the offender is an outsider, then Article 122. If it is
committed by crew member or a passenger sailing in Philippine waters then Presidential Decree 532.

Article 123 Qualified piracy.

Now, if ever the crime of piracy is attended by any of those circumstances mentioned in Article 123. If it is
committed with the firing of a gun, if the crew members or passengers are abandoned without means of
saving themselves, or if the crime of murder, homicide, rape or physical injuries are committed, then the
crime is a crime of qualified piracy. The penalty of reclusion perpetua to death shall be imposed.

That is now what we call an example of a special complex crime because the penalty of qualified piracy is
higher than the penalty of piracy because of the attendance of any of those circumstances mentioned in
Article 123. For example, if on occasion of piracy, the pirates fired a gun and then one of the passengers
was killed on the occasion of piracy, then there is a crime of killing or homicide. Now, if a crime of
homicide is committed on the occasion of piracy, then the crime becomes qualified piracy. The principle
that is applicable there is the principle of special complex crime.

What is special complex crime? Do you remember your Article 48, which is different from a special
complex crime? What you learned in Article 48 is different from the principle of a special complex crime.
So, Article 123 is an example of special complex crime. Why? The law recognizes the commission of
crimes other than the principal crime. When that happens, the crime is a special complex crime.

Now, if you look at the last circumstance in Article 123, where on the occasion of piracy, murder,
homicide, rape or physical injuries are committed, the crime becomes a qualified piracy. The law
recognizes the commission of those crimes on the occasion of piracy. Therefore, it becomes a crime of
qualified piracy. There is no such crime as piracy with homicide or piracy with rape.

Why is there is no crime of piracy with homicide or piracy with rape? This is because the law itself already
designates the crime that is supposed to be the proper designation or denomination of the crime. Ginamit
na yung qualified privacy eh. Pag ginamit mo na yung qualified before the crime, then that means that all
of those crimes committed on the occasion of piracy are already included in the term qualified piracy.
You do not denominate the crime as qualified privacy with homicide. Redundant yon. Pag sinabi mong
qualified piracy, all those crimes recognized by law to be committed on the occasion of piracy are already
included in the term qualified piracy.

Now, if 10 died on the occasion of piracy or even 10 are raped on the occasion of privacy, what is the
crime committed? It is still qualified piracy regardless of the number of killings. Now, there are number of
15 who are raped, do not change the crime as qualified piracy because that is a special complex crime.
Regardless of the number of deaths, regardless of the number of persons injured, regardless of the
number of persons raped, they fall under a single indivisible crime of qualified privacy.

This is different from a complex crime in Article 48 where you can use the word multiple or double. Like
multiple murder, multiple homicide, double homicide, you can use that in Article 48 as a complex crime.
But if it is special complex crime, do not use double or multiple because the crimes of rape, homicide or
physical injuries are not treated as separate crimes. They are part and parcel of a single indivisible crime
of qualified piracy.

4D 2007 4
Article 124 Arbitrary detention

Dun sa arbitrary detention, we meant to relate these together with kidnapping and serious illegal
detention under Article 267 or even the crime of forcible abduction under Article 342. Under the Revised
Penal Code, there are many abductions that you will encounter. Actually, arbitrary detention is a crime
committed by public officers whose main duty is the maintenance of peace and order. Not all public
officers can be liable for the crime of arbitrary detention - only those public officers whose main duty is to
maintain the peace and order of the community. Who are these peace officers? They are the policemen,
NBI agents, and military men.

There are those that are public officials whose main duty is to maintain peace and order. Therefore, they
are, as a rule, public officers who are tasked by law to make arrests. Everybody can make an arrest. But
for purposes of arbitrary detention, these are the officers recognized by law as authorized because that is
their duty to make arrest. Now, if they are therefore the ones authorized to make arrest because that is
their duty, and the arrest is unlawful, meaning there is no valid ground, and the person arrested without a
warrant was subsequently detained, then the arresting officer may be liable for the crime of arbitrary
detention.

The crime of arbitrary detention can only be committed if the arrest is without any legal ground and if
there is a subsequent detention. If the arrest is done through a warrant of arrest, he cannot be liable for
arbitrary detention. If the arrest does not fall in any of those mentioned in Rule 113 Section 5, Paragraphs
A, B and C, then the arrest will be unlawful. If the arrest does not fall under the principle of the flagrante
delicto rule under Paragraph A of section 5 of Rule 113 or the hot pursuit rule under Paragraph B of
Section 5 Rule 113 or the fugitive rule under Paragraph C of Rule 113 Section 5, then you can be sure
the arrest is without legal ground.

Assuming that the arrest is lawful and the arresting officer cannot be liable for arbitrary detention, can he
still be liable for violation of a law? Can you still be held liable for a crime if the arrest is lawful? Yes. You
can still be liable for violation of Article 125 or Republic Act 7438. Have you heard about Republic Act
7438? The law that penalizes police officers in failure to inform the person arrested without a warrant, his
right to remain silent, his right to an independent and competent counsel preferably of his own choice,
and so on. So, once he is arrested, even if the arrest is lawful, then he should inform the accused his
rights under Republic Act 7438. He is entitled to an independent and competent counsel. He has the right
to remain silent. He has the right to waive the appearance of a counsel, independent and competent
counsel in the presence of a counsel.

If they fail to inform the accused of those rights, they can still be liable for violation of Republic Act 7438.
The accused also has the right to communicate with the immediate members of his family or with his
lawyer or with his girlfriend or boyfriend. Kung yan ang hiniling eh, puwede. Sige sir because you have
informed me of my rights to communicate with my lawyer, with my relatives, nearest of kin, puwede bang
bigyan mo ako ng telepono para kausapin ko ang nanay ko? However, upon the request of the accused,
the policeman does not provide him with any means of communication, the policeman will still be liable for
violation of Republic Act 7438.

That is RA 7438. He must be informed of the rights of the accused arrested without a warrant, to a right to
an independent and competent counsel to assist him. He has the right to remain silent. He has the right to
waive the presence of an independent or competent counsel with the assistance of a counsel, which
should be in writing. He has also the right to communicate with his lawyer, nearest of kin. It will be up to
person arrested if he would like avail of these rights. If the policeman does not provide him with any of
those rights, then the policeman will likewise be liable for violation of Republic Act 7438.

Now, whats good with 7438 in relation to 124 and even 125 later on is that RA 7438 likewise applies to
invitations for questioning. Inarrest mo, ano, so arrested. So, in my presence, the person was committing
a crime. So, that is the rule of flagrante delicto. The same person was committing a crime in my presence.
I can place him under arrest. I will not be liable for arbitrary detention. So, that is an arrest allowed under
the flagrante delicto rule. Now, once he is arrested, then I will have to inform his rights under Republic Act

4D 2007 5
7438. If I inform him, then I will not be liable for that first part of the offense. But, now supposing the
person arrested says, I want to communicate with my girlfriend or my boyfriend because they are the
nearest kin, theyre my nearest kin. But the policeman does not provide this or does not allow him to
communicate, then the policeman is still be liable for Republic Act 7438.

As stated earlier, the other important thing about 7438 is that it applies to invitations for questioning. For
example, the policeman did not see the accused commit the crime. But there were reports that he was
the one who committed the crime. Theres an investigation report, somebody said that this person
committed the crime. However, the police officer has no personal knowledge that the accused committed
the crime. So, the police officer will invite the suspect for questioning. Mr. Patajo, youre invited to come
to the office. Then once the accused is in the office, the policeman asks questions about the accuseds
participation in the crime. Ikaw, Mr. Patajo, ikaw ang pumatay kay ganito. Ikaw ang nag rape kay ganito,
lahat-lahat. Once theyve already asked those questions about the participation of a person and then
placed him on arrest at that very moment, Republic Act 7438 becomes applicable. In other words, RA
7438 applies not only to those arrested in the presence of these officers, but also to those invited for
questioning concerning the commission of a crime. The moment the policeman asks questions
concerning the commission of a crime, the policeman should already inform the suspect of his rights. That
is the meaning of 7438.

Article 125 Delay in the delivery of detained persons to the proper judicial authorities

Now, assuming that the policeman is not liable for arbitrary detention and for violation of Republic Act
7438 because the he was able to inform the accused of all his rights and to give them to him, what should
the policeman do so that he will not be liable for another crime? The policeman must deliver the person
arrested to the judicial authorities within the period provided for by Article 125 as amended by Executive
Order 272, the Administrative Code. What does the law provide? For crimes punishable by afflictive or
capital penalties (grave felonies), then the person arrested without a warrant should be delivered to the
judicial authorities within 36 hours, for crimes punishable by correctional penalties (less grave felonies)
then 18 hours, and for crimes punishable by light penalties (light felonies), 12 hours. The policeman has
to comply with the periods provided for by law. The person arrested, even if the arrest was valid in
accordance with the provisions of Section 5 Rule 113, he must deliver the persons arrested to the judicial
authorities.

What if they arrested a person in the act of committing a crime of robbery at 12 oclock midnight of Friday
and they cannot deliver the person within 36 hours as required by law because the next working day is
Monday, what defense can he put up?

Hmm, kalimutan na ninyo. Paragraph 7 of Article 12, ano yon? Failure to perform a duty required by law
due to lawful or insuperable cause. Insuperable cause yan, imposible. How can he deliver the person
arrested within 36 hours? Sabado walang opisina eh, Linggo walang opisina, hindi ba? He will be
exempted from the criminal liability. But what should he do? In one case, what the policeman did was to
look for the house of the judge. And then brought the person arrested to the judge. At that time, the judge
was sleeping with his wife. Kumatok. Your Honor, I arrested a person committing a crime of robbery and
I first delivered the person arrested to you because under Article 125, I have to deliver to the proper
judicial authorities. The policeman was cited for contempt of court for disturbing the judge. That is an
obstruction, sabi ng judge eh. Because when you go to 125 kasi, delivery kasi ang ginamit dyan eh. The
failure to deliver a person arrested in the periods provided for by law, deliver to the judical authorities. Pag
ininterpret mo yan, pag sinabi mong deliver, is to bring, di ba? It can be the overt act of bringing
somebody else eh. Yun kasi ang requirement.

The meaning of that delivery actually is more than physical delivery. The meaning of delivery is to transfer
jurisdiction. The meaning there is you transfer the jurisdiction of the person arrested to the judicial
authorities. That is the meaning. And how do you transfer the jurisdiction of the person arrested to the
judicial authorities? You have to file the necessary case within the periods of 36 hours, 18 hours, and 12
hours. If the is arrested without a warrant, then you have to bring the person arrested to the fiscal for
inquest. Do you know what is inquest in your criminal procedure? What happens in inquest is that the

4D 2007 6
fiscal determines probable cause to immediately file the information without the required preliminary
investigation. What the policemen will do is to file the case within the period stipulated by law. You have
to file the case within 36 hours with the inquest fiscal.

Now, if the inquest fiscal found probable cause to file the information and the information went to court,
what will the court do? They will issue a warrant of arrest? They will not anymore. Why should he issue a
warrant of arrest, arestado na nga eh. What will the court do? Ano nakalimutan nyo. They will issue a
commitment order. May commitment order. A commitment order is one issued by the court ordering a
detention officer to undertake the detention of that prisoner. That is the meaning. So, commitment order,
you commit the person to be detained to a specific detention cell.

What is the reason why the arresting officer will not be liable for violation of 125 if case is already filed in
court and a commitment order was issued? The reason is that when the information was filed, jurisdiction
over the person of the accused was already transferred to the court. If the court orders to continue
detaining the prisoner, the policeman will no longer be liable for arbitrary detention because the reason
why the prisoner is being continuously detained is no longer by reason of his arrest, but rather by reason
of the issuance of the court of a commitment order. That is why delivery should be actually transferring
the jurisdiction of the person arrested.

If in case the accuse waives the provisions of Article 125 of the Revised Penal Code, then that waiver
should be in writing and with the assistance of the counsel. That is the provision under RA 7438. He
cannot waive the provisions of 125 by himself. Why? Why should he be assisted by a counsel and the
waiver should be in writing? You know the reason? Because even if the person arrested waives the
provision of 125, then he is actually telling the persons arresting him that he can continue detaining him.
In other words, if you waive the provisions of 125, then you can be detained beyond the periods provided
for by 125. Its like telling the policeman, Okay, I am waiving 125, therefore, you can continuously detain
me. Thats the meaning eh, di ba? Why does he have to waive 125? Because he might avail of his right
to what? Preliminary investigation.

What is the effect of waiving 125? The effect is that you are practically telling the fiscal not to file the
information yet because you want to respond to the complaint filed against you. You want to submit
countervailing evidence to rebut the evidence presented because you want to prove that there is no
probable cause to file the information. If he is a detention prisoner, by reason of his waiver of the
provisions of 125, he cannot yet go out of prison. He will have to be detained continuously until the
preliminary investigation is terminated.

The continued detention by that policeman already beyond the 36 hours will not cause the policeman to
be liable for 125 because it is the person arrested who waived the provisions of 125. The purpose of why
he is waiving is that he wants to present countervailing evidence. That is the meaning of 125.

Now, if later on the preliminary investigation is terminated and the fiscal finds probable cause to file the
information, the case will be filed in court. But if after preliminary investigation, the fiscal says that there is
no probable cause to file the information, the fiscal will cause the release of the person arrested and
dismiss the case.

Articles 126-127

Now, 126 and 127, you just read them. The more important provisions is 128 on violation of domicile.
Article 126 and 127, you just read them. Wala masyadong complications yan. 128,129 and 130 yan ang
medyo may complications yan. Because the crimes in 129 and 130 should be more related with the
provisions of Rule 126 in the Rules of Court up to the Rules of Criminal Procedure. It has something to do
with issuance of the warrant of arrest and the search warrant, malicious procurement of a search warrant
or search without witnesses under Article 130. So, we have to make reference with Rule126 of the Rules
of Criminal Procedure. But before going to that, we go first to violation of domicile.


4D 2007 7
Article 128 Violation of domicile

There are three ways of committing the crime of violation of domicile. The first thing that you will have to
know is that this crime is committed by public officers, like in the crime of arbitrary detention whose main
duty, likewise, is to maintain peace and order. The violation of domicile is done in the exercise of their
function of maintaining peace and order. There are those persons recognized by law who may enter the
premises of another to seize, arrest somebody, or seize or confiscate things inside their dwellings. There
are three ways of committing this crime.

Number 1: When, not being authorized by judicial order, you enter a dwelling without the consent of the
owner. In other words, when you enter the domicile without the consent of the owner.

Number 2: When there is no prohibition to enter, but once inside the domicile, you start searching items
inside the house.

Number 3: When you enter (surreptitiously) there may be no express prohibition, but once you are inside
the owner asked you to leave but you do not leave. Yun, violation of domicile yun.

Anyway, violation of domicile should be read together with Article 280 on trespass to dwelling. You also
have to refer to the aggravating circumstance of dwelling that you have learned under your Paragraph 3,
last part of Paragraph 3 of Article 14 because when the domicile is only is an aggravating circumstance,
then there is no crime of violation of domicile. If another crime is committed, but the entry is only a means
of committing the crime, then domicile becomes dwelling as an aggravating circumstance.

Anyway, so violation domicile, therefore, is committed by public officers whose main duty is the
maintenance of peace and order. If he is not a public official contemplated by Article 128, then the crime
will be trespass to dwelling or qualified trespass to dwelling under Article 280 of the Revised Penal Code.
So, thats the counterpart provision of the violation of domicile. But there will be some complications later
on when we take up robbery with force upon things. But the in the meantime, yun lang muna, para di
kayo ano, kasi mahirap ang Criminal Law maraming mga sister provisions, so later on na lang. Yun muna
ang isipin yung dalawa.

Articles 129-130

Then 129 and 130 pertain to 126, ano. The requirement of the issuance of a search warrant. Of course
you know when a search warrant is issued. The judge personally conducts the examination of the
complainant or his witnesses. The investigation is made by conducting searching questions, di ba yun
ang requirement. When somebody or a police officer applies for a search warrant, the basis usually of the
issuance of a search warrant would be the depositions or testimony of the complainant or his witnesses.
Depositions are sometimes called testimony of the applicants or the witnesses in a search warrant.
Because you have to convince the court that there is a probable cause to issue a search a warrant. The
probable cause can only be arrived at after a hearing conducted by the judge based on searching
questions, no. Kaya ang judge niyan,di pwedeng magtanong. O, ikaw ba ito? Opo. Ikaw ba yung
applicant? Opo. Di ba ikaw ay 24 years old?Opo. Hindi ban ikaw yung nag testify? Opo. Di ba
yung testimony mo positive? Opo. Hindi ganon ang searching question, panay leading eh. Maraming
judge ngayon na mga tamad eh. Ginagawa ganon. But actually searching questions, even in your Rule
126, mahirap na trabaho yan, because it is the judge who is only asking the questions, walang adverse
counsel lang eh, ikaw lang mismo ang magtatanong eh. What is your name? O ilan taon ka na? Pwede
ka lang dito para mag-apply ng search warrant. Bakit ka nagaaply ng search warrant? Drug test ba ito? O
shabu? Ano hitsura ng shabu? O asan ang test file? O, i-sketch mo nga? Saan ka nakapwesto? San
dito? Yung bahay, anong hitsura ng taong yan, panget ba o guwapo yan? Ganun ang searching
questions. You have to establish really that there is a probable cause in the issuance of a search warrant.

Now, if the applicant later on, misrepresented themselves. In other words, there are expert witnesses,
yung mga usual paid witnesses. And then later, if the court only discovered later that they were not

4D 2007 8
actually witnesses in the storage of illegal items in a particular house, but a search warrant was already
issued, then those responsible for the application of the search warrant will all be liable for violation of
Article 129, malicious procurement of any search warrant.

Article 130 Searching domicile without witnesses

The Article 130 provides there are must be witnesses. Now, you know, when a search warrant is served
under Rule 126, the law requires two witnesses, eh. The two should witness with the service of the
search warrant. Two should witness. There is a sequence in the order of those who should witness.

Ang una, it should be in the presence of the respondents. In the absence of the respondents, those who
maybe living in the house. In the absence of any person living in the house and the absence of the
respondent, then that is the time that the search warrant shall be observed or witnessed by two
disinterested persons from the community. So, ginalaw ng mga pulis kahit na nadun ang respondent,
nandun yun inhabitants of the house. Pinapatabi nila tapos kukuha ng barangay captain, mali yon. The
witnesses from outside will only come in with when there are no inhabitants, there are no respondents.
Now, if there are no respondents, there are no inhabitants, and there are no witnesses from the
community, but the policemen still persist in searching the house without any witnesses, then they will be
liable for violation of Article 130. Do you follow?

Lets go to 131, 132, to 133. Mabilis tayo kailangan tayong mag habol eh. Walang recitation, kung may
recitation mauubos ang oras natin niyan eh. Wag na lang tayong mag break and after 133 then I can
already send you home. Ay may klase pa kayo no? Tatalong buwan na akong nag lelecture. Up to
September. So, lets go to 131.

Articles 131,132, and 133 these are crimes involving disturbance of peaceful meetings, ceremonies in a
religious place or religious worship and then offensive to the feelings, religious feelings, under Article 132
and 133.

Article 131 Prohibition, interruption and dissolution of peaceful meetings

Lets go 131. Articles 131 and 132 can only be committed by public officials. It cannot be committed by
private individuals. Under 131, it covers preventing the holding of a peaceful meeting. This is usually
committed by those who are required under the law to issue permits to hold meetings in a public place, so
a public officer preventing the holding of a peaceful meeting. Now if the meeting is held in the private
property, there is no need to get a permit. But when a meeting is held in a public place, then you have to
secure a permit.

Now, the mayor or his assistant or the person designated to issue a permit does not like to issue a permit
without any justifiable reason, then the public officer maybe liable under 131 for preventing the holding of
a peaceful meeting. Now, if a meeting is held already and because there is permit, then the crime can
also be committed by public officers who prevent persons from attending a peaceful meeting or who
disturb an ongoing peaceful meeting, or he stops an ongoing peaceful meeting.

In other words if the permit is for 10 hours, then on the 6th hour dinisperse mo na, liable ka na dyan. Or
there is a peaceful meeting already granted then you prevent others from attending the peaceful meeting.
That is also punishable under 131. Or you disturb an ongoing, you created noise, and disturbed an
ongoing peaceful meeting. Then you are likewise liable under 131. So thats the crime in 131. Preventing
the holding of a peaceful meeting, prevent other persons from attending a peaceful meeting, disturb an
ongoing peaceful meeting, and disperse the peaceful meeting before the period granted.


4D 2007 9
Article 132 Interruption of religious worship

The 132 is a crime that can also be committed only by public officers. It is the disturbance of an ongoing
religious ceremony in the place of religious worship.

The problem is that some religious ceremonies are already held outside of places of religious worship.
Ang situation ng 132 is that you go to church and then you are a public officer, you disturb ongoing
religious ceremony, probably misa, yon 132 ka. You will fall under 132 because you are disturbing a
religious ceremony in the place of a religious worship.

But supposing the mass is being celebrated outside of the church. Now at the time that this law is
adapted, wala pa kasing El Shaddai nun eh. Wala pa. Ang meetings noon ay Diyos ko day, yon noon.
Wala pang El Shaddai nun. Yung mga religious sects ngayon, yung Jesus is Lord Nivenebt wala pa yon,
eh. di ba?

So the question is supposing it is a religious ceremony conducted outside the place of religious worship
and, therefore, somebody is disturbed. There is an old case involving the Iglesia ni Cristo. Sabi ng
Supreme Court, the law does not apply because religious worship, you know, those will include churches
where usually the members of the sect pray. Kasi ang ginawa ng Iglesia ni Cristo, they invited people to
attend a meeting, some sort of prayer meeting among the Iglesia ni Cristo. Then a public officer belonging
to another religion disturbed the ongoing ceremony. Sabi ng Supreme Court, ano e hindi yan pwede
under 132 because it took place outside, but they could be liable for another crime, that would be crime of
unjust vexation. If there is violence, then it would be grave coercion. If there is no violence, then than is
light coercion. So that decision has not yet been changed.

If you do something against the will, whether it is amounting to a crime or not with violence or intimidation,
you force somebody to do something against his will, with violence or intimidation, the crime is grave
coercion under Article 286. But if you do not employ violence or intimidation, but your act merely annoys
or vexes the senses of a person or a group of persons, the crime will only become a crime of light
coercion or what they call unjust vexation. Pangiinis.

Now, 131 and 132 can only be committed by public officers. But supposing it is committed by private
individuals. There was a time in our place, eh, sa loob ng simbahan, private individual, he shouted,
Sunog! Sunog! Sinabi niya sa loob ng simbahan. Galit sa pari because he was a die-hard Marcos. At
that time, alam mo naman sa Ilocos, Marcos, eh. Galit sa mga pari, mga taga doon. Nagmimisa yung
pari. He shouted, Wag kang maniwala sa pari. Sunog! Takbuhan yung mga tao.

What case are going to file against him? He is not a public officer. Then the law that is violated is 153
under the last sentence of Article 153. In 153, the law provides that if the acts or the offenses are not
punishable under 131 or 132, ten the law that is violated is Article 152. It is not because it is a private
individual, he can not be liable for violation 131 and 132 because only public officers are liable. The law
that is violated is Article 153 as long as there is tumults. Tumults, because the ones of the requirements
of 153. Tumultuous, eh. That means there must be a commotion. Tumultuous. At least four persons are
involved, di ba?

Article 133 Offending the religious feelings

Now, 133 is offensive to the religious feeling. It is basically committed by a private individual or a public
officer. Yung 133, any person yun eh. Any person committing the act offensive to the religious feeling.
What is offensive to the religious feeling? When we speak of offensive to the religious feeling, then the act
goes to the very belief. It is an act that goes against the very belief or the faith of those belonging to that
religion.

So, like Catholics, ano ba yung mga ano natin yung mga beliefs natin? Lets say mass is being
celebrated by a priest. Now, there is a chalice, merong dung ostiya, di ba? Pag binato mo yung chalice,

4D 2007 10
but there is no disturbance, that is offensive to the religious belief because of your nagmimisa. Kung
nagmimisa siya, binato mo yung pari. That may be offensive to the religious feelings. Marami yun. Yung
mga Muslim. Di ba pag gumaganun sila? Di ba meron silang piece of cloth? Habang gumaganun sila
lagyan mo ng marumi. Naku, baka patayin ka ng Muslim niyan. They will not charge you for offensive
religious belief, but they may kill you. Yun ang offensive to religious feeling. But if you act, although
offensive to the members of the sect, may not be offensive to the religious feeling as a crime.

Like for example, procession. Pag may procession, may nagpatugtog ng malakas na radio habang may
procession. Ibang religion nun eh. Sa procession, naistorbo yung mga nasa procession. Is that offensive
to the religious beliefs when somebody is disturbing you like when there is a loud voice or sound or the
volume of the stereo is very high and, therefore, it is disturbing the procession? No, that is not offensive to
the religious feeling. That is only a crime of light coercion or what they call unjust vexation. Yung unjust
vexation kasi kung wala kang mahanap sa batas, as long as you are not injured, kasi ang unjust vexation,
you are not injured. Lahat ng pangiinis unjust vexation yan. You kiss a girl on the cheek and the girl does
not like it, as long as it is not with lewd design, unjust vexation yan, pangiinis. Or you view a lady taking
bath inside the tub. Sinisilip mo siya, unjust vexation din yun. Pangiinis yun. But if you kiss a girl with
gusto, not only on the cheek, on the lips, that is acts of lasciviousness. That is not anymore unjust
vexation. Ang unjust vexation not attended with any lewd design thats the meaning. Pangiinis lang e.

But, if the act already is more than, pangiinis, and because attended with lewd design, it becomes acts of
lasciviousness. But, if the girl does not object to acts of lasciviousness, then the crime that is committed is
acts of deliciousness. So that is the meaning of offensive to religious feeling.

Next, meeting because we dont have classes on Monday, Ill give you a longer assignment. Article 134 to
Article 159, including 160. Naku ang haba!

What are the important provisions? You list them down the one with important provisions or the important
crimes, rebellion. You should know the essential elements of rebellion. Article 134 yan. 134-A, the crime
of coup de etat is a form of rebellion. You should know the essential elements.

Okay. You should know the distinction between rebellion under 134 and coup de etat as a form of
rebellion. We should know the crime of proposal and conspiracy to commit the crime of rebellion and
coup de etat as a form or rebellion. You should also know the crime of inciting to rebellion. Then after that
you go to Article 139, the crime of sedition, then conspiracy to committing crime of sedition, and then the
crime of inciting to sedition under Article 142.

Now, you should know the distinctions between rebellion and sedition, distinctions between proposal and
inciting. And then you should, likewise, know the distinction between inciting to sedition under Article 139,
and grave threat under the first part of Article 148. Grave threat under the first part of Article 148 because
there are grave threats, direct assault rather. Direct assault, grave threats, sa 252 na yun, ang layo
naman. That should be direct assault. The first form of direct assault in Article 148 and sedition in Article
139, they have distinctions. And then 143, 144, and 145, they refer to the crimes of you should know all
those crimes. In 143, 144, 145, they refer to the crimes of failure to heed the summons of the Congress or
Senate, violation of parliamentary immunity and so on. And then 146 and 147, very important. Illegal
assembly, illegal association in 147. In 148, direct assault, very important. In 149 indirect assault,
likewise, very important.

Open disobedience under Article 150. Then you have the definition of persons in authority, agents of
persons in authority in Article 152, MEMORIZE. I-memorize nyo yan sa 152. Kinakailangan imemorize
nyo yan. Hindi niyo maiintindihan ang direct assault or indirect assault without memorizing 152. And 153,
MEMORIZE. Aside from kaya lang yung other part of 153, wag na niyong basahin yon, yung last
paragraph of 153 that shall be a crime if you bury with pomp a person executed, a person executed by
reason of death penalty in accordance or contrary to the provisions of Article 85. Wala nay un, wala ng
death penalty.


4D 2007 11
And then 154, prohibited publications. In 155, alarm and scandal, MEMORIZE. You compare this with the
crime of illegal discharge of firearm. Article 155 should compared with illegal discharge of firearm under a
crime against persons, and likewise attempted felony from a crime of grave threat.

So, sa 155, you should know theres a crime of 155, alarm and scandal. When is it a crime of illegal
discharge of firearm, when is it a crime of grave threat, when is it a crime of attempted felony, when is it a
crime violation of Republic Act 8294. So you will read the Republic Act 8294. This has something to do
with the law on illegal possession of firearms and explosives. Dapat etong mahihirap ako naman
magdidiscuss nyan. Mahirap ako magdiscuss, pwede ako magtagalog sayo, or we give the evidence of
rebellion. Siyempre, alam nyo yon. But, the hardest the hard part of them, ako na magdidisscuss. But,
of course, I will ask you, Can you tell me what is the crime of illegal association? What is the effect if it is
not attended by armed men? If attended by armed men and not attended by armed men? O anong
crime, di ba? Ganon lang. How do you distinguish sedition from rebellion or inciting the inciting to
proposal? Ganon mga tatanungin ko sa inyo. Is there a crime of complex crime of rebellion complexed
with sedition? Mga ganon. Mahirap sagutin pero nasa libro yan eh. Because in the Bar Exam exam, tagal
naming dun sa committee namin eh. These questions should have not been asked.

Biro mo complex crime pero pag tanong, is there a complex crime of simple rebellion complex with coup
detat. Kung ano na lang ginagawang examiner, hindi naman pwede mangyari yon eh. Yung magtanong
tayo, yung talaga mangyayari because pwede may crime, but it may not happened. You know what is the
meaning of rebellion complex with coup detat? Kasi coup detat initiated by men in uniform with or
without the aid of civilians, kasi for the record of 134 always committed by civilians initiated by civilians.
So pwede mag complex crime. If coup detat is committed by men in uniform, simple rebellion can be
committed by civilian. Kung nag joined forces sila, complex yun. Eh pano pag yung isa leftist. Yung
simple rebellion actually, leftist yan eh. Yung coup detat as a form of rebellion, rightist yan eh Mga
military rin yan eh. Mag join silang dalawa, impossible yun. Baka mag patayan pa sila dalawa. Yung mga
ganun bang tanong sa Bar. Pewede mangyari. There is crime, but will it happen? Impossible. Rightst
atsaka leftist? Unless, of course, (unang mabas)a ang Pilipinas. Yun pa.

Revised Penal Code: Book Two Articles 134-152

P = Professor
S = Student

P: what is simple rebellion?

S: Sir, simple rebellion is when a multitude of people go against the government with uhm

P: What was the purpose of the persons under Article 134 in simple rebellion. What is their purpose?

S: Sir, their purpose is to take over the government to take over the Government.

P: Only?

S: Government and

P: In whole or in part. The government in whole or in part.

P: Yes, in whole or in part, including the Legislative or the Executive.

P: But what do they do with the Legislative or Executive?

S: Sir, they hinder them from doing their acts.

P: Preventing the whatthe act?

4D 2007 12

S: Sir, uhm, criminal

P: In the exercise of their prerogative probablysasagutin ko yan. Its my wife. Whats the purpose?

S: Sir, their intent is to take over the government and to build their own one. Then, second, to limit the
powers of the Chief Executive or the Legislative Department in the exercise of their prerogatives.

P: In the exercise of their prerogatives. So, it is not actually taking over, it is not merely taking over the
government, whether in whole or in part. What do you mean by in whole or in part? The law says in whole
or in part. What does that mean?

S: Sir, they take over whether the whole of a facility or just a part of the Executive organization.

P: Or even a municipality or a province. If take over refers only to a province or a city, that is also
rebellion because in whole or in part. And then the law says prevent the exercise of the powers of
Congress or the Chief Executive or in the exercise of their prerogative. What does that mean? What do
they do actually?

S: Sir, exercise of their power.

P: What do they do?

S: Sir, they dont Sir, the Legislative enacts the law and the Executive implements the law.

P: So?

S: Sir, if you rebel against the government, you prevent them from enacting a law or prevent them from

P: What do they do? What do the rebels do?

S: Sir, they try to take over the Government or they try to limit the powers of the government.

P: Or they prevent Congress from enacting laws. Or they prevent the Chief Executive from performing
her duties as President.

P: What are the two essential elements of simple rebellion?

S: Sir, there is public uprising and taking up of arms against the government.

P: Of course taking up arms against the government. What kind of arms?

S: Sir, weapons.

P: Weapons? Slingshots? What about the slingshots, bolos, knives?

S: Sir, I think especially in the act of to overthrow the government

P: What is public uprising?

S: Sir, it involves multitudes of people going against the government.

P: It involves multitudes of people. They should know their purpose or purposes openly. Four people
involved in rebellion would that be public uprising? If there are four people or four persons?

S: Sir, no.

4D 2007 13
P: No, that is not public uprising?

S: Sir, you could call the people to

P: But not public uprising? But I thought you said only two of them. Is that the people? Okay, so taking up
arms against the government in public uprising, the purpose is always to do that. That means to take over
the government in whole or part or prevent the Executive or the Legislative from exercising their
prerogatives. What about coup detat? What is coup detat as a form of rebellion under Article 134-A?

S: Sir, first, it is swift attack against the government in its totality or the community. It involves the
members of AFP, PNP or other public officers with or without the help of civilians. Then

P: Teka, teka muna, teka muna. Slowly ha. Coup detat is committed by?

S: Sir, by members of the AFP or PNP or public officers with or without the aid of civilians.

P: How many of them? How many of them commit the crime of coup detat? In the crime of rebellion, its
public uprising, so it involves a multitude of men. So, there are many. But in a coup detat, it can be
committed by a person or persons. What does the law provide? It is committed byWhat does the law
say?

S: Sir, the crime of coup detat is a swift attack accompanied by violence, intimidation, threat, strategy,
stealth, directed against duly constituted authorities of the Republic of the Philippines or any military camp
or installation, communication networks, public utilities or other facilities needed for the exercise and
continued possession of power, singly or simultaneously carried out anywhere

P: The law does not saythere is no public uprising. So, it can be committed by

S: By any person or persons belonging to

P: So, person or persons. It can be committed by one person, unlike in a simple rebellion because there
is public uprising so it involves a multitude of men. And how is it committed, coup detat?

S: Sir, not only by force or by violence but also by stealth, strategy and

P: And there is no need of taking up arms against the Government?

S: Sir, uhm

P: Yes, it may be committed even if no arms are taken against the Government it can be committed
surreptitiously. Surreptitiously. There is no need of any firearms as long as there is a swift attack on

S: Sir, swift attack on any of the constituted authorities of the government or public utilities or facilities
which are needed in the exercise of the government power.

P: Ano? In the exercise? What is the purpose?

S: Sir, to curtail the powers of the government.

S: To diminish the power

P: Of the Government. Of the State, to diminish. So, it is not actually taking over, unlike in the crime of
simple rebellion, which may involve the taking over in whole or in part of the government. This one is to
diminish the power of the State. But the law enumerates what could be the facilities that should be the
subject matter of the swift attack. Military installations, camps, police station, all of these installations
including public utilities. What about in the Oakwood? The subject matter is a hotel. The soldiers were

4D 2007 14
inside the hotel. It is not a military instillation. It is not a military facility. It is not a public utility. It is more
ano

S: Justice, in that case, we have to look at the motive of the soldiers. If it is a political motive, then we
could say that it is a coup detat. But if there is no political motive in the first place, then we could say that
it is just a crime of

P: But the law enumerates the facilities that should be the subject matter of coup detat. So, it is no
longer important? Because the subject matter of the coup detat is a hotel?

S: But we really have to look at the motive of the soldiers

P: It is more on the purpose rather the one that is attacked.

S: Yes, sir.

P: Okay. Could it be committed by civilians?

S: Sir, no, with or without the aid of civilians.

P: It is initiated by men in uniform, but the law only requires that it should be initiated by men in uniform
with or without the aid of civilians. Civilians can also commit, but it should be with the

S: Initiation of the men in uniform

P: initiated by men in uniform. Otherwise, if it is initiated by civilians then that will become a crime of
simple rebellion. But the requisites or the elements will be different. Okay.

P: Camara, Mark? What do you understand by No, I did not ask you to study that doctrine laid down in
Enrile versus Salazar or Hernandez, People versus Hernandez, People versus (Ivan). Probably all those
doctrines are already laid down and those cases are already in doubt. Do you remember the doctrines
where there is no such crime as rebellion complex with murder? There is no complex crime of rebellion or
complex with murder. Why?

S: Sir, under the doctrine, the act of murder or another homicide is considered as an element of the
rebellion, even if committed by the criminals, sir.

P: Element. You cannot commit the crime of rebellion without killing because one of the requirements of
rebellion is taking up arms. Killing is the necessary consequence of taking over the government. What
about now?

S: Sir, when the law was amended in 1990, the law removed the commission of other crimes in the
description of the crime of rebellion.

P: Magagaling kayo talaga.

S: There is a rebellion that took place with other crimes committed during the

P: Kaya sabi ko magagaling kayo e. Youre all good. Because you know the answer. You know, that was
a very difficult question but you know the answer. Thats correct. Because under the old provisions in
Article 135, there used to be phrase there, under the old 135, you will find there the penalty of rebellion.
Nakalagay ang penalty. The penalty of rebellion in so far as the leaders are concerned, the penalty of
prision mayor including commission of serious violence and destruction of property. In other words, if you
are a leader and then you commit the crime of rebellion then you commit serious violence or damage to
property, whatever violence or damage to property committed, then the penalty is only one. And that is
prision mayor under the old law. So, that justifies the ruling that there is no such crime of rebellion

4D 2007 15
complexed with murder because that provision allows the absorption of other crimes committed on the
occasion of rebellion. But that phrase is not anymore included there. That has been removed in Article
135 when there was an amendment. So what is the effect of removing that phrase? There may now be a
crime of rebellion complexed with murder. Now, what do you understand by proposal and inciting?

S: Sir, proposal to commit rebellion, sir?

P: And inciting to commit the crime of rebellion.

S: The main difference is that in a proposal to commit rebellion, there is no public meeting and such
proposal is done in private as against in inciting to rebellion when the leader is inciting the members who
attended the meeting in a public place. And in a proposal to commit rebellion, the one who proposed has
decided to commit the crime and proposes its commission to other people, while in inciting to rebellion,
the leader speaking in the meeting merely incites the people who attended to rebel against the
government.

P: So, there is no distinction with the second one? It should have been showed. I do not see the
distinction. In the first one, that is correct. The proposal to commit rebellion is done confidentially. It is
between the proponent the person given the proposal the proposal stage. It is done confidentially. And
then inciting is done publicly because it may be done through speeches, writings or anything that will
disseminate information. Pwedeng writing, pwedeng plays, lahat yan pwede yan. As long as the purpose
is to incite the people to commit the crime of rebellion, so it is done publicly. What is the other distinction?

S: Sir, to be able to commit rebellion, that person who leads the rebellion, he then decides to commit the
crime. Unlike in inciting to rebellion, the

P: Already decided? Is he in actual commission of the crime of rebellion in proposal?

S: Sir, not yet, sir. The mere proposing

P: So, nobody is in the crime of rebellion. The one who is proposing merely asks somebody to join him,
but he is decided to commit the crime of rebellion later on. Thats the meaning of proposal. What about in
inciting to rebellion? Is it already in the actual commission of the crime of rebellion?

S: Sir, not yet. The Code says that without being part in the rebellion, the leader who

P: He is not yet in the act of committing a crime of rebellion in inciting to rebellion. So, in other words, he
just merely delivered a speech, for example, inciting the people to commit the crime of rebellion. He is not
in the actual commission of the crime of rebellion. Why? The one proposing is not in the actual
commission of the crime of rebellion, but he is inciting people to commit the crime of rebellion. Why?
Because you will not anymore be liable for inciting to rebellion. You may become a principal to
inducement. If there is already an ongoing rebellion and then you incite people to commit the crime of
rebellion, you are already a principal in the commission of the crime of rebellion. You may be a principal
to inducement because rebellion is a continuing offense. So if you are not in the act of committing a crime
of rebellion and then youre inciting the people, then that inciting is already part of the commission of the
crime of rebellion. Unlike in the crime of proposal, yung proposal, you proposed and then later on you
decide. In inciting, you are not in the act of rebellion, but you are still telling people to commit the crime of
rebellion. There is no need of committing the crime of rebellion later on. What about conspiracy?

S: The conspiracy only dependsSir, in that case, the act of conspiracy, when all the members actually
decide to commit the crime of rebellion, that already constitutes the crime if conspiracy to commit
rebellion, sir.

P: So, it is affected. Is there such a crime as proposal to commit the crime of coup detat? Or is there
such as a crime as inciting to commit the crime of coup detat as a form of rebellion?


4D 2007 16
P: Sir, if the coup detat was added to in 134-A and the specific provision

P: Inciting wala?

P: It does not include

P: Inciting to commit the crime of coup detat, theres no such crime. But proposal to commit the crime of
coup detat, meron yan. Proposal and conspiracy to commit the crime of coup detat and simple rebellion,
pwede yon, but not the inciting to commit a crime of coup detat. Bakit? Meron bang men in uniform
inviting everybody to commit the crime of coup detat? Its impossible. It is always done surreptitiously.
How do you distinguish coup detat from simple rebellion?

S: Sir, the essence of the crime of coup detat is a swift attack; rebellion is a public uprising and taking up
arms. Secondly, sir, the persons who commit the crime of coup detat must be initiated by military men or
public officers or persons in authority. Unlike in rebellion where there in no such particular provision in any
group of person who can commit a crime of rebellion. Next, sir, is that a rebellion must be committed by a
multitude of men, unlike in coup detat where an a single military officer or group of military officers, with
or without civilian authority, may commit the crime of coup detat and also.

P: And? And also?

S: Sir, the target in coup detat is against constituted authority or military installations or other facilities.
Unlike in rebellion where there is no such condition and

P: What about the purpose?

S: The purpose for rebellion is either to (1) deprive or prevent the exercise of the government of any of its
powers or prerogatives or take away any territory from the National Government. Unlike the

P: In whole or in part.

S: In whole or in part, sir. Unlike in coup detat where the purpose of committing is to diminish or seize a
power.

P: So, even if they do not seize power as long as they diminish, thats already crime of coup detat.

P: Labadan, Leah? Whats the crime of sedition?

S: The crime of sedition is committed by any person who rise publicly and tumultuously to attain by force
or intimidation or any other unlawful means for the purpose of preventing the promulgation and execution
of laws or the holding of an election. Second, by preventing the National Government, the provincial or
municipal government or any of its officers or employee in executing its functions or functions of the
office. Third, by attacking or inflicting acts of hatred to the public officers. Number four, by attacking or
prohibiting acts of hatred by reason of political or social end to persons. Number five, despoil by reason of
political or social end, of person or the municipal government, National Government or any part thereof.

P: What about the private individuals?

S: Private individuals? Sir, the said persons.

P: Despoil, what do you understand by despoil?

S: Despoil, uhmtoruin

P: Destroy? Ruin? Now, the law enumerates five manners of committing the crime of sedition in Article
139. There several instances where sedition maybe committed. Now, the purpose or purposes maybe

4D 2007 17
political or social. Now if it is political, this is directed against those mentioned by law that you will prevent
the holding of the national election, or hinder public officials in performing their duties, di ba? You despoil
the government whether national or municipal. Then, what if the purpose is social?

S: Sir, if the purpose is social, it maybe directed against any person or a social class.

P: What do you do?

S: Committing acts of hatred.

P: But then, what do you actually do?

S: Social class.

P: Okay. So, let me see. Number one, what is the element of the sedition? What makes it a crime of
sedition under 139?

S: First, rising publicly or tumultuously

P: So, what do you do when you rise publicly or tumultuously?

S: Sir, there must be at least a four people.

P: Now, what will they do in order to be tumultuous? Is there a public uprising?

S: Sir, there is an attack or an act open to the public.

P: An attack? An attack? Tumultuous or public uprising is not an attack.

S: Yes, sir. Mere uprising

P: It is more than an attack. So. what will they actually do in the crime of sedition in 139?

S: Sir, there is a public disturbance.

P: Ha? There is a public disturbance. They create commotion. They create commotion in order to what?
In order to achieve the purposes, di ba? If they prevent the holding of an election, in order to become a
crime of sedition, what do they actually do to prevent the holding of a national or local election? Now,
what do they do in the crime of sedition, the offenders? Di ba they create commotions?

S: Yes, sir.

P: What do they do?

S: Sir, I will give an example.

P: Like what?

S: Sir, for example, showing a bomb.

P: Showing a bomb?

S: Yes, bomb in a

P: Baka pelikulang bomba yan. Anong klaseng bomba?


4D 2007 18
S: Actually

P: Actually, sedition is not only public uprising, its not only commotion, legal yan eh. Every citizen has
the right to ventilate his gripe against the government. That is your right. So, if you are not satisfied with
the Comelec, it is your right to ventilate your gripe against Comelec because they do not know how to
count votes. It is also your right to question the capability or the competence of the members of the
Comelec. Right ng citizen yan, eh. Now, if the government office is not performing well, then it is a right to
question the way it is being run. Right mo yan eh. But you went over your right. O, yun ang purpose ng
sedition. Because there is no taking up of arms against the government. If there is taking up arms against
the government, then it is not sedition. Actually, sedition is when you go beyond what is required of you
as a citizen to ventilate your grievances against the government.

S: Sir, for example the offender or the offenders are

P: Example, there is an increase of your tuition fee, di ba? Do you have the right to question the increase
of tuition fee? Yes. Supposing there are now groups of students in front of the Department of Education,
they burn tires. You form human barricades so that the officers will not be able to perform their work as
members of the Department of Education. That is a crime of sedition because your purpose is to prevent
the exercise of the primary duties of government agencies or government officials. But if it is merely done
by, you know, there is placard, we do not create any commotion, walang crime yan eh because that is
your right to protest, di ba? That is part of freedom of expression. What makes it a crime is the manner of
exercising that right. You create a disturbance, you create a commotion, you create a public uprising in
order to be heard. Yun ang tinatawag na sedition, di ba? So there is no taking of arms against the
government. It is merely public uprising, tumultuous. Is there a crime of proposal to commit a crime of
sedition?

S: Sir, no.

P: Why is there no crime?

S: Sir, the right to express the grievance against the government is their right and, therefore, the
proposal, that mere proposal, is not actually...

P: What is the harm? What is the harm that the government will receive by proposing to commit the crime
of sedition? Supposing you are a student, you do not like the Department of Education increasing your
tuition fee. They will say, Oh, we will not pay our tuition fee. We will not pay our taxes because the
Department of Education is not dong their work so that they dont have any salaries. And, therefore, join
me in going to the Department of Education and do this and you will do this. Is that an example? Is that
crime punishable?

S: Sir, if it is already it can be considered already as inciting.

P: Hindi inciting yun, eh. Proposal yun, just the two of us. Im just proposing to you. We will not pay our
taxes, lahat lahat. Is there any harm to the government? None. Because that is freedom of speech. You
are protected because there is no valid crime against the government. So anything that will be done to
propose or to propose rather, its not a crime, because thats part of freedom of speech. That is your right.
But supposing the proposal is now accepted. Inaccept mo na ngayon. In the Department of Education, we
will create a commotion. We will create trouble was there. We will disturb them. We will create public
uprising. We will burn tires and create human barricades and so on.

S: Sir, there is already a conspiracy.

P: It will now become a conspiracy. Is that punishable, conspiracy to commit a crime of sedition? Is that
punishable? Is conspiracy to commit a crime of sedition punishable? Yes, it now becomes punishable.
But merely proposal, there is no crime. What about inciting to sedition?


4D 2007 19
S: Sir, inciting sedition, being part of the uprising - without taking part in public uprising.

P: O parang rebellion din yan eh. And then, you incite others to sedition by means of speeches,
proclamations, writings, emblems, and banners or other materials. What do you do?

S: Sir, you incite others to commit sedition.

P: You look at inciting to rebellion and inciting to sedition. Inciting to sedition is broader than the crime of
inciting to rebellion. Oo, broader ang inciting to sedition because inciting to sedition even includes
scurrilous libels committed against the government. In inciting to commit the crime of rebellion, what do
you do is that you shout to those who are listening, and then you tell them to commit a crime of rebellion
by telling them, we will over throw this government, we will arm ourselves. We will have a public uprising.
The government is not good in anything. Yun ang you mentioned the elements of the rebellion. But in
the crime of inciting to sedition, of course, that is also one way of committing a crime of inciting to
sedition. You announce publicly that youre inviting everybody to join in a crime of sedition as long as the
proponent or the one who is delivering this is not himself involved in the crime of sedition. Thats a clear
provision in 142. Okay. But the law says even the scurrilous libel is committed in the crime of sedition. It is
not merely telling the people to prevent a holding of a national election or prevent the national
government or all or its instrumentalities in their performing their duties by creating public uprising or in a
tumultuous way, di ba? What do you mean by a scurrilous libel? Inciting to sedition to utterances,
seditious words, and scurrilous libel?

S: Sir, we libel government officials.

P: Like what? The imputation of wrongdoings, ganun, committed by government officials is this scurrilous
libel, imputation of wrong doings? Hoy, masasamang mga taong ito, magnanakaw. Yung mga nasa
military, walang ginawa yun kundi magnakaw. Ganun ba un? Mga pulis, panay jueteng. Scurrilous libel
ba yun or that is part of freedom of speech? Hindi bale yung seditious words. Seditious words are just a
part. We will have public uprising, we will form barricades, we will burn tires in front of Malacaang
because the government is not is not doing its job. We are spending our money uselessly. We will
prevent the President from entering Malacaang, we will put up bonfires, and so on and so on. Yun, yun
ang seditious words because from the words alone, very clear the purpose, di ba? From the purpose and
from the speech, you can already deduce that the purpose of the speaker is to incite, use or commit the
crime of sedition. But scurrilous libel, paano yun? Di ba protected ka ng freedom of speech? Kasi iba
yung utterances of seditious words, iba naman scurrilous libel. What do you actually do? Do you ano -
parang ano yan, you made falsities in your pronouncements. Masamang gobernador ito, i-nispend lahat
para sa pambabae, mga ganito. Walang ginawa ang gobernador kundi magnakaw, walang mabuting
sinabi. All bad things are uttered. Yun ang scurrilous libel, Sumosobra ba. But of course, it should be
accompanied with seditious words not merely scurrilous libel because it is merely saying that all the
government is bad, wala yun. But if you say, Masama ang gobernador, palitan natin ito, huwag natin
pagtrabahuin dito, gago ito, pero hindi naman totoo, that is inciting to sedition.

You know, there is also a provision. I do not know if I gave you that assignment. In 153, Did I give you
153? From inciting to sedition and inciting to rebellion. Did I tell you that? Article 153 of the Revised Penal
Code. No? Anyway, you read inciting to rebellion and inciting to sedition together with Article 153. Kasi
dun sa second part ng 153, when there is a speech tending to create a public outcry. Public outcry in
order to achieve the purposes of rebellion or sedition, then you know what is violated is Article 153.
Nakita mo ba yun sa 153?

Tatlo ang covered kasi ng 153. Yung, Acts that do not fall under 131 and 132, nakalagay sa 153, tapos
yung public outcry, tapos burying with pomp a person executed in violation of Article 85. Yan ang covered
ng 153. Ngayon, ano dyan a public outcry tending to achieve the purposes of rebellion or sedition. D iba
nakalagay yan? Nabasa naba ninyo? Hindi mo mahanap? Naku, hindi pa rin? Kung di mahanap baka
ako ang mali. Andyan ba yan?


4D 2007 20
Syempre nandyan. So, you look 153. You compare with inciting to sedition and inciting to rebellion,
parang magkaparehas. The only difference is that there is there are those words, public outcry in
order to achieve the purposes of rebellion or sedition.

What is the difference? Yung 153, 154 and 155, they those crimes belong to a different title. Ang title
nyan eh, crimes against public order. Yun ang title nyan 153, 154, 155, yan ang title dun. So, in other
words, what is punished in 153, 154, 155 is the public disturbance or public disorder sa 153, which is
separate from the crime of inciting to sedition or inciting to rebellion. Iba ang title niyan, inciting to
rebellion. What is punished in taking up arms against the government or public uprising or the creation of
commotion in order to achieve the purposes of inciting by sedition. So, iba ang purpose nun. Iba ang title.
Whats the difference? The same din eh. There is a public outcry, youre also delivering a speech.

In inciting to sedition or inciting to rebellion, there is no need of those who are listening to be actually
excited because what is punished in inciting to sedition and inciting to rebellion is the act of inciting the
listeners to the crime of rebellion or sedition. Dyan sa 153, 154, 155, what is punished is the public
disorder. So, if you incite the people to commit the crime of rebellion or sedition, and then the people are
actually excited, ngapalakpakan sila, nagsigawan lahat sila, lahat-lahat yan, 153 ang punishable. That is
153 because there is a difference. The other difference is that, the crime of inciting to sedition and inciting
to rebellion, the purpose of the speaker is very clear from the very beginning. So, if you go there, you are
the audience, you want to listen, and you go there, you know already what to expect from the speaker.
Hindi ka naman magaattend dun kung hindi mo alam ang purpose eh, d iba? So, probably everybody is
invited in the meeting then we will listen to the speech of Joma Sison or sila Buscayno and the others,
you know, those NPA leaders. You expect what speech will delivered, di ba? Pag nagsalita sila, -
actually, theyre not involved in rebellion, they are not involved in sedition. The moment that they incite
people to commit the crime of rebellion or sedition even if the listeners do not create any noise, inciting na
yun.

Now, in a public outcry under 153, the audience, those who joined, listeners, they do not know. They are
going to listen from the speaker probably they will talk about love stories in a movie or bomba stars, so
madaming mga lalaki dun eh. Pag-uusapan pala eh, movies and then they deliver the speech, they start
the speech with movies and then later on iba na ang sinasabi. Lets overthrow of the Government. Lets
arm ourselves, di ba? And then, the listeners will now say Sige bomba! Sige tira! yun ang 153. What is
now punishable is, aside form the speech, the commotion because the requirement is tumultuous or
public disturbance. Yun ang 153 to differentiate it from inciting to sedition. Ganun ang diperensya nun.
But in inciting to sedition and inciting to rebellion, the people are not really excited. What is punished is
the act of inciting. The one who is committing the crime is the one who is delivering the speech. Okay,
lets take a break. Tatapusin natin up to 152.

Article 148 Direct assault, first part

For the public uprising, there is no taking up arms against the government. But supposing the purpose of
the offender is political or there is no public uprising, there is likewise no taking up arms against the
government. Therefore, it is not a crime of rebellion. It is not also a crime of coup detat because there is
no swift attack. It is not also a crime of sedition if there is no public uprising. Now, two persons prevented
members of the National Assembly in performing their work in Congress. So, therefore, there is no public
uprising because the offenders involve only two persons. There are only two offenders, but the purpose is
political. So, what is the crime committed?

The crime that is commitment is the first part of Article 148 that is a crime of direct assault. There are two
ways of committing the crime of direct assault. The first one is when the purpose is political in order to
achieve the purposes of rebellion or sedition. The other crime of direct assault is that when a person in
authority or any of the persons in authority is assaulted or attacked in the performance of their duties or
on the occasion on the performance of their duties, di ba? So, it will become direct assault under the first
part. So, if the purpose is political and, therefore, there is no public uprising, there is no taking up arms
against the Government and there is no swift attack, the crime committed is direct assault under the first
part of Article 148. Kaya apat ang dapat niyong pag aralan niyan, eh: Simple rebellion, coup detat, 134,

4D 2007 21
134-A, 139 and then the first part of Article 148 on direct assault. Dapat alam ang distinctions nung apat
na iyan so that when you take the exams, alam nyo ang sagot.

Question: Would there be a complex crime of rebellion? Yun nga tinanong ko na sa inyo yun.
Complexed with coup detat? Puwede daw eh, but it may not happen. Theoretically? Yes. But it may not
happen. Andun yung leftist and rightist, imposible, magpapatayan sila.

Articles 143 to 144

And then 143, and 144, you read these two articles together with 131, 132, 153. Why? Because in Article
131, the crime is committed by public officers if they prevent the holding of a peaceful meeting or when
they prevent a person from attending a peaceful meeting. In 132, it refers to acts of public officers in
preventing or disturbing a holy or religious ceremony in a place of religious worship. But if the offenders
are not public officers, then you know that 153 is the one violated, di ba? If the acts do not fall under 131
or 132, then is a law that is violated is 153.

You go now to 143 and 144. When you prevent the holding or prevent or disturb the ongoing investigation
or session of Congress or any Legislative body - that means provincial board or city or municipal board,
then the law that is violated is 143 and 144 of the Revised Penal Code. So, you disturb an ongoing
investigation or meeting or you prevented or you disturb If you prevent, 143. If you disturb, 144.
Specifically applicable only to those that enact our laws, whether provincial board, municipal board, city
board or Congress or Senate.

Article 145 Violation of parliamentary immunity

Now, 145 is violation of parliamentary immunity. You know, in your political law that a congressman or
senator cannot be arrested while congress is in session for crimes where the penalty does not
exceedwhat? Six years under the constitution, ha? But under 145, higher than prision mayor. So, that
law has already been amended. The parliamentary immunity in the constitution is not more than six
years. If the penalty is not more than six years, and Congress is in session, then they cannot be arrested
because that involves parliamentary immunity. Now, if the policeman insists on arresting that member of
the Senate, they will be liable for this particular crime under 145. I think you read a newspaper report
before. I think this year when there was a warrant of arrest for libel issued by an RTC Judge in Pasay for
the arrest of Jinggoy Estrada? You remember that? The policeman attempted to implement the warrant of
arrest, and he was charged with a crime of libel and the penalty is less than six years, diba? Had the
policeman insisted, Estrada could have filed a case against the policeman. The policeman could have
been liable for violation of Article 145 that this violation of parliamentary immunity. That is the example.
But only when it is Congress is in session, okay.

Article 146 Illegal assembly

Now 146, this one is very important in relation to other crimes later on. The 146 is illegal assembly. The
assembly of many is not actually punishable because we have our freedom under the constitution,
freedom to assemble. But what is punished in Article 146? Dalawang punished dun to make it punishable.
One, is the meeting of armed men because if it is a meeting of an unarmed men, walang crime yun, kahit
ano pagusapan nati, kahit na i-rape natin lahat ng mga babae sa mundo. Unarmed naman e, walang
crime yun. So, what makes it a crime of illegal assembly in 146, dalawang requirements dun. One, a
meeting of armed men and number two, for the purpose of committing an act punishable under our laws.
Iyon. Iyon ang purpose nun. But if it is a meeting merely of unarmed men and they are trying to commit a
crime of conspiracy, to commit a crime of robbery or conspiracy to commit a crime of rape, walang crime
yun because they are not armed. But if the purpose is to commit a crime and they are armed then they
will be liable. Those who attend the meeting who are not armed will, likewise, be liable, but the penalty
will be lesser. Yung armed at saka unarmed liable yun kaya lang yung unarmed mas mababa ang
penalty.


4D 2007 22
Now, you will read this with Article 306 of the Revised Penal Code. Baka hindi natin maabot yan, yung
brigandage or who are brigands under Article 306. Now, on that 306 of the Revised Penal Code whether
a friend, immediate members of a band - armed band. Because band is composed of at least four armed
men and the purpose of the meeting is to commit a crime of highway robbery or to extort or demand
ransom, ang crime dyan is 306, brigands yan. In other words, if the armed men are attending a meeting
for specific purpose or purposes of either robbery, to extort money or ransom, hindi 146 ang punishable
dun. What is punishable is Article 306 because it is specified in the purpose of the meeting. But if the
meeting, the purpose is not specified, therefore, if it is a meeting of armed men it is specified, but it does
not involve highway robbery, ransom or extort money then the crime that is committed is 146.

Now, if however, there are only three armed men three armed men for the purpose of committing the
crime of kidnapping for ransom or highway robbery or extort money, then that is also a crime of 146,
illegal assembly. Why? That cannot be a crime of brigandage because there must be at least four armed
men. Tinanong sa bar yan, eh. Namilipit yung mga estudyante ung question na yan, eh. Dalawang
questions, so three armed men for the purpose of committing a crime of kidnapping for ransom. The way
it was phrased, it was a crime of conspiracy of committing the crimes. Pero ang sabi nila there is no crime
because conspiracy to commit the crime of kidnapping for ransom is not a crime. Yan ang sagot, eh. But
there are specific crimes under the law. What is punished is not the conspiracy, but the meeting of armed
men for the purpose of committing a violation of the law, di ba? Don sa brigandage naman, committed by
a band, therefore, four armed men for the purpose of kidnapping for ransom, to extort money. Hindi yung
conspiracy ang punishable dun, because there is also such a crime as conspiracy to commit the crime of
highway robbery. What is punishable is the meeting of armed men and for that purpose.

Article 147 Illegal associations

The 147 is legal associations. What is punished is the purpose. You form an association for the purpose
of prostitution, naku! Or you form an association for the purpose of child abuse. What is punished there is
the purpose. So, only the organizers and those who form an association are liable. Yun ang purpose dun.
So, lets go 148 to152.

Article 152 Persons in authority and agents of persons in authority; Who shall be deemed as such

In 152, you first read 152 before we go to arbitrary detention I mean direct assault or indirect assault,
ano? Im reminded of arbitrary detention because of the definitions in 152. Now, 152 maybe the victims of
direct assault or indirect assault. There are two groups of persons or public officers or persons who may
be liable for the crimes of direct assault or indirect assault, and you have the persons in authority or
agents of persons in authority.

Now, the definition of agents or persons in authority, the definitions are found in Article 152. Nakalagay
dyan sa persons in authority are those vested with jurisdiction and then those persons in authority are
those public officials vested with jurisdiction. Yung agents of person in authority are, likewise, public
officers who are mainly tasked to maintain peace and order in the community. In other words, they are
those who implement or execute the orders of persons in authority. An example of agents of persons in
authority are the policemen. Yon ang agents of persons in authority.

Now, persons in authority, pag sinabi mong vested with jurisdiction, their acts can be implemented or
enforced within their area of jurisdiction like mayors. They are persons in authority because they exercise
powers that can be enforced within their jurisdiction. Judges, justices, even baranggay captains or
members of the legislative bodies are also persons in authority because they can implement, they can
pass a bill that becomes a law, therefore, their actions or their duties can become law, which can be
enforced later on and obeyed by others. So, they are vested with jurisdiction. Yung agents of persons in
authority, yung mga police, agents, military, military men, and all those that implement or those who
execute the orders of persons in authority are agents of persons in authority.

Walang problem yan kahit mga baranggay ano, mga baranggay policemen yan. But baranggay captain is
a person in authority because he exercises powers that can be enforced within his area of jurisdiction. So,

4D 2007 23
he is also vested with jurisdiction. Walang problema dun sa persons in authority or agents of persons in
authority because as I said, theyre public officers. But the problem is that a private individual may
become an agent of person in authority. A private individual who comes to the aid of the person in
authority becomes an agent of a person in authority. So, the private individual who comes to the aid of a
person in authority becomes, likewise, an agent of a person in authority.

And then in the last part of the definition in 152 include teachers, administrators or those who are involved
in education, di ba? Although they come from private institutions for acts committed against them by
reason of their being such, then they are likewise the persons in authority. Lawyers in the exercise of his
profession are likewise persons in authority, although they are private individuals in so far as they are
assaulted by reason of their being a lawyer.

So, example: Ateneo is a private institution. If a teacher is assaulted by a student because he got a
failing grade, the crime committed by that student is direct assault. Why? Because a teacher in a private
institution becomes a person in authority if he is assaulted by reason of his being a teacher or a lawyer.
Sinabihan ka nya, bayaran mo ako. Sabi ng cliyente, Masyado namang mataas attorney. Ito ang
kailangan mo. *Pak*. Sinuntok nya ang abogado, direct assault yun. Because a lawyer, for purposes
of his being a lawyer, and the exercise of his being a lawyer is assaulted or attacked, he is likewise a
person in authority.

So, there are, therefore, several persons in authority:
1) Public officials.
2) Yung mga baranggay chairman included yan by specific provision in 152.
3) Teachers in private institutions and lawyers in so far as if theyre assaulted by the reason of their being
a lawyer. Persons in authority yun.
4) Then the other group of authorities will be agents of persons in authority divided lang into two groups.
Yung public officers tasked to maintain peace and order, and the other agents of persons in authority are
private individuals who come to the aid of persons in authority. Do you follow?

Article 148 Direct assaults, second part

We will now go back to 148. Now, the first part of the direct assault in 148 is the one that I told you a
while ago. When the purpose is political in order to achieve the purposes of rebellion or sedition without
any uprising public uprising no taking up against the government, no swift attack, then the crime is
direct assault under first part. And then under the second part of 148, when a person in authority or
agents of persons in authority is attacked, then the crime is direct assault - by reason or on the occasion
of the performance of his duty or while in the performance of his duty. Yun ang ano yun ang direct
assault, the second form.

Article 149 Indirect assaults

Now notice the way it is worded, in 149, ang nakalagay sa 149 Would it be liable for indirect assault
under 149? Included din yung yung agents or those who come to the aid of persons in authority
included yun sa 149. What I mean is if you are given an illustration, its like this: Mr. A is a judge. Judge
si Mr. A. While he was in the performance of his duty, he was assaulted. Then a private individual
private individual comes to the aid of the judge, so both of them both of them were assaulted. So Mr. A
while a judge, while he is on the performance of his duties, nagbinigay ng order binato. Nung binato yun
judge na yon, babatuhin uli, mayrong private individual who prevented the person who was throwing
something at the judge. So, nung imbes na binato sa judge, pati ikaw *pak* pinukpok sa ulo. Yung
private individual who was going to the aid of the person in authority. What crime was being committed or
what are the crimes committed. Anong type of crimes committed?

If a person in authority is assaulted, a person or an agent of the person in authority is assaulted while on
the performance of their duties, the crime is qualified direct assault, qualified direct assault, because
theyre assaulted while in the performance of their duties. But if they are assaulted by the reason of the
performance of duty and then the crime becomes only direct assault. Like what? Or a judge in the market,

4D 2007 24
he is buying food for the family. So, here comes a losing litigant, he saw the judge sabi, Ay ikaw
nagpatalo sa akin ha? Tapos sinampal nya, sinuntok nya ung judge. Anong crime yun? Is that a direct
assault? Yes. Because he is assaulted by reason of his being a judge. He was assaulted by a losing
litigant. Then, therefore, he assaulted him because he lost a case before the judge. That is still a crime of
direct assault because he was hit by reason of the performance of his work as a judge. But the crime
there is direct assault. Because he was not assaulted at the time of the performance of the duties of being
judge.

Supposing, in another example, A is a policeman. He was assaulted, then later on, B, a private individual,
came to the aid of Mr. A. Both of them were assaulted. Police ito, policeman. How would you differentiate
the two examples? This one is example A. This one is example B. Anong crimes yan? The policeman
was directing traffic. The bystander did not like the policeman. The A was directing traffic, so he was
assaulted. B, another bystander, came to the aid of this policeman. B was likewise assaulted. Whats the
crime committed in both cases?

In letter A, the crime committed against the judge is qualified direct assault because he was assaulted of
the crime of the performance of his duty. What about Mr. B? The crime likewise is direct assault. Why?
Because a private individual who comes to the aid of a person in authority becomes an agent of a person
in authority. He is an agent of person in authority If a private individual comes to the aid of a person in
authority.

So, in both cases, Article 148. Why? Because, under Article 148, the victims of direct assault include
persons in authority or agents of persons in authority. What about in the second example? Because the
policeman was assaulted while in the performance of his duties then the crime likewise is qualified direct
assault. Why? Because he is an agent of person in authority under 152.

What about the private individual who comes to the aid of a person in authority? Then the crime is indirect
assault. So, this one would be Article 149, this one is 148. Therefore, by reason of Article 152 Article
149 was amended by implication. So, therefore, in 149 the only victim now in 149 is a private individual
coming to the aid of agents of person in authority. The private individual coming to the aid of agent of
person in authority is a crime of indirect assault. But a private individual who comes to the aid of a person
in authority, because he becomes an agent of a person in authority, if he is likewise assaulted, then liable
for violation of Article 148.

Now, the difference, however, between direct assault of an agent of a person in authority. The policeman
and a judge, pag sinabi mong direct assault sa police, then the attack must be more serious than the
attack of a person in authority. Pag ang judge, sinampal mo yan, ginanun mo lang yung judge or kinabig
mo lang, eh medyo malakas eh hindi naman nasaktan ng todo. Ano yan, direct assault yan because he
is a person in authority.Kapag police yan, it should be more than that. Talagang physical attack ang
kailangan sa police because he is an agent of person in authority. Thats why under Article 150 or 151,
the crime of disobedience disobedience or resistance that is a separate crime. Separate from the crime
of direct assault committed against agents of person in authority.

Lets say yung police, ano ha? Inisyuhan ka ng warrant of arrest. So, the judge orders a policeman to
serve a warrant of arrest. If the person arrested resists resisted without any physical attack, he resisted.
Ayaw ko. Pinu-push mo na ang pulis. Tinutulak nya ang pulis, that cannot become a direct assault. Why?
Because the attack is not yet too serious. He, the person being arrested or the person who resisted, will
be liable only for simple resistance or disobedience. But if the warrant is served and he did not just push
the police, sinuntok nya ang pulis na yun. Pinagsusuntok nya ang pulis, direct assault na yun. Direct
assault na yun. But kung ang judge yan sumita sayo, Hoy! Mali ang ginagawa mo sa husgado. Yun
tapos sinampal mo ang judge direct assault agad yun. Qualified direct assault? Why? Because when it
comes to a person in authority, the attack need not be serious unlike with a crime committed against a
policeman. Of course, natural eh pulis lang yan eh. Ako, justice tayo eh. Lagot ka, di ba?

Now, the other thing that will help to remember is that yung teacher. Tinanong sa bar yan, eh. Tawa nga
ako ng tawa, eh . Pag dini-discuss ko sa mga listeners ko yan tawa sila ng tawa eh, kasi totoo pala yun

4D 2007 25
minsan, ano? May teacher, sabi ko, nililigawan nung estudyante. Yung estudyante pala na nililigwan
nya, nililigwan din ng ibang estudyante. Mag karibal sila sa estudyante. Then everybody was laughing.
The professor was courting a lady student. That lady student was also being courted by another student.
So, after classes, si professor was assaulted by that student who was courting also that student. Ano ang
crime? May crime dun but it is not direct assault Why? Because even though he is a teacher the purpose
of the assault was not due to being a teacher. The assault must have something to do of his being a
teacher. Personal yun eh. But supposedly the teacher conducting was classes. The purpose of the
assault by the student is that he is courting the student because that means he is courting that student
and that student was also And then he threw a book that hit the face of the professor, and then beat
him. Anong crime yun?

Physical injuries?

Alam nyo yun, nung tinanong sa bar exams yan, we were divided. Dalawang answers ang prinopose
namin. Kasi, if the purpose is personal, then there is no need to apply Article 152 because a teacher in a
private institution, nakalagay dun, di ba? Sabi nila physical injuries. Yung isang group naman sabi direct
assault. Bakit direct assault? Because you apply the general principle, eh. When the person in authority
is being assaulted, dapat regardless of the purpose. Kasi kung, you know, in the crime of qualified direct
assault, if a judge is assaulted even if there is no purpose, as long as he is in the performance of his duty,
that makes it qualified direct assault because he is assaulted at the time of the on the occasion of the
performance of his duties. But if a person in authority is assaulted outside, then they will now have to
prove that the assault is by reason of the office.

Okay. So, therefore, by analogy, if a teacher in a private institution is teaching, and he is stoned or
assaulted by any of the students, that should be direct assault. Why? Because you do not need anymore
to determine what is the purpose, eh. Because under the law, direct assault is committed when the
person in authority or agents of person in authority is attacked or assaulted while in the performance of
his duties. Hindi sinasabi dun kung by reason of the office o hindi. So, therefore, if the teacher is directly
is conducting classes, whatever is the purpose of the one who is attacking him, if he is attacked on the
occasion of his performance, that is direct assault. Eh yun ang dapat mag-prepare ng question and
answer na direct assault. But theres no theres no case. So, sabi namin, sige, consider na lang
dalawang answer. Kung iyan ang tinuro mo dun sa kabilang school, yun. Sa kanila naman ito tinuturo
namin. Dalawa, correct, di ba? But it should be really direct assault because it was done in the
performance of his duties.

Okay. Now, the other one also is lawyer. Yung lawyer mo ayaw mo saktan. The law does not make a
distinction as to who is the assaulted lawyer. Its either the opposing party or your own client, basta may
reason. Pwede yun. Krinos-examine nila yung witness ng adverse party. Nagalit, nabastos. Pag labas
sa husgado, sinuntok niya yung lawyer. The one who is committing the crime is the opposite party. Direct
assault yun. But supposing it is his own client, masyadong mataas maningil ng kliyente. Sinuntok ng
kliyente. Direct assault pa rin because the law does not make a distinction as who should be committing
the crime as long as it is by reason of his being a lawyer.

Can it be complexed? Can direct assault be complexed with other crimes? Yes, under Article 48. If the
attack is already more than the required violence in the crime of direct assault and then there is already
an intent, not actually intent, but is already more than what is required of a crime of direct assault, it may
become direct assault with attempted or frustrated homicide or murder depending upon the commission
of the crime. Binaril mo yung judge while in the performance of his duties. If the judge almost died, if the
firing of the gun was attended by any, qualifying, aggravating circumstance and loss of life, then you try to
denominate the crime as qualified direct assault with frustrated or attempted murder because the assault
is already more than the required element of direct assault. The violence committed against the person in
authority is already more than what is required by the law.

Eh, yung police o kung di naman, namatay yung pulis o yung person in authority. Then, you can also
complex that crime under Article 48. It may be direct assault with murder or direct assault with homicide
or qualified direct assault with murder or qualified direct assault with homicide. It depends, pag namatay

4D 2007 26
yan, sigurado ka Article 48 ang magaaply dyan and it will be complex. What I am saying is that if the
injury sustained already more than sufficient for the crime or required of the crime of direct assault, then it
will become attempted or frustrated as long as you can show that there is an intent to kill. Syempre kung
binaril mo, may intent to kill na yun.? Baka kung ano pa ang gawin.

Okay. So, your assignment is only up to Article 152, ano ha. Ill give you the following assignments for
next meeting. Habaan na natin para matapos tayo. Although 153, we have taken up 153. I always discuss
153 with the other provisions. Tapos na yung 153. In fact, the last part of 153 is already a useless
provision.

The next paragraph C of 153. The burying with pomp of death convicts, in violation of Article 85 of the
Revised Penal Code. Bawal yan. Yung mga na-execute, inexecute sa Muntinlupa. Tapos ililibing mo,
may tugtog pang banda? Thats a crime under but thats already useless because wala ng death
penalty. So, 153 what I want to remind you that is a crime of public disorder. Articles 153, 154, 155, the
gravamen of the offense is the public disorder. Yun ang gravamen of the offense. Unlike in the crime of
inciting to sedition. The gravamen of the offense in inciting to sedition is either political or social in
purpose. Eh, magkaiba yung public outcry saka yung inciting.

Okay. Now, when you reach 154, illegal publication, for okay, or without authority or rumor mongering,
nakalagay dun. Lahat yan sa 154. You want to read this together with let me see, the 201, on
pornography, obscenity, 201. You read 154 together with Article 201 because 201 also refers to
publications or cinematographies or plays sa 201. And then, 155, alarm and scandal you compare this
with illegal discharge of firearm under the crime against persons. So, you look for illegal discharge of
firearm under the title Crimes Against Persons. I think that is found in 263, 264, 265, 266. Its under there,
262, I think 264 ba yan?

Article 254

Article 254? Because 255 is infanticide. Tama 254. So, you compare alarm and scandal with Article 254
on illegal discharge of firearms. Then, likewise, you read Special Law Republic Act 8294 together with
155, ha? You read the Republic Act 8294 amending the P.D. 1866. Otherwise known as The Law on
Illegal Possession of Firearms because there is also a law there that is- what I am interested here is that
in 155, firing of a gun is alarm and scandal. So, I want you to know that not all firing of the gun is alarm
and scandal. It may become illegal discharge of firearm, it may become under grave threat, it may
become attempted felony, it may become attempted homicide, it may become attempted murder. It may
also be a special aggravating circumstance under Republic Act 8294. Thats why I want you to read
Republic Act 8294 on illegal possession of firearms or when a firearm is fired. Marami klaseng illegal
discharge. Ano ang illegal forcible entry? Sa rape, meron din illegal discharge. Why? Because it can be
committed by forcible entry, unlawful entry. Unlawful entry and opening is not intended for entry or exit,
coupled with illegal discharge.

Then in 156, 157, very important yan, 156, very important yan, 157, on evasion of service, 158, likewise,
156, 157, and 158. You read these articles together with Articles 223 to 225 of the Revised Penal Code.
So, 156, 157, 158, you read these articles together with Articles 223, 224, and 225 of the Revised Penal
Code. Then when you reach 159, other forms of evasion of sentence, you just read 159 together with
conditional pardon, the conditional pardon under Article 92. Effects dun sa conditional pardon. And then
160 quasi-recidivism. You go back to, although I discussed last time, you go back to habitual delinquency
under Article 62 Paragraph 5 and, likewise, recidivism and reiteracion under Paragraphs 9 and 10 of
Article 14. Iko-correlate natin para maintindihan nyo maigi. Articles 156, 157, 158 should be correlated
with 223, 224, and 225. Then159 should be correlated with conditional pardon under your Article 92 of the
Revised Penal Code. Then 160 must be correlated with Article 62 Paragraph 5 of habitual delinquency
and recidivism under Paragraph 9 and reiteracion Paragraph 10, both from Article 14 of the Revised
Penal Code. Bahala na kayo. Basta pagkuha nyo ng bar exam sa Criminal Law, pag meron mas
mababa ng 90, magagalit ako, ha? Nandun na lahat, eh. Okay. And then afterwards, you go to 161 to
184. I will tell you what are the important things that you will have to remember, ha? Yung ano, yung

4D 2007 27
illegal or counterfeiting of coins. Counterfeiting of coins, counterfeiting of money, illegal tender, payable
to order or bearer. Basahin nyo yan.

And then, you go to forgery. What is the crime what is the definition of forgery under 169? Yung
counterfeiting coins nag-extract yan sa Article 163 up to 168. Paper money lahat yan. Paper money or
coins. Yung 169, thats not a crime. The law only defines what is forgery. And then, you go to a crime of
falsification, ha? Para madali sa inyo. Ano yung falsification? Depende kung ano subject matter. So, you
go to 170, falsification of legislative document. You go to 173, ha. I will jump muna on 173. That is
falsification of messages, telephone, telegraph or cablegram or wireless messages, 173. You go to 174,
falsification of medical certificates. Mga nagkakasakit na estudyante. Ano papalabasin? Palalabasin may
sore eyes. Yun pala wala. Naku, falsification yan under 174. Di pala sore eyes, cross-eyed. 174 yan,
falsification of medical certificate, merits or records. 174 yan. And then, you go back to 171, 172, more
important yan, 171 and 172. Memorize 171 if you can memorize. Walo yan and 172. Okay. Yung
subject matter ng 171 saka 172, yun ang naririnig nyong falsification. Falsification of official document,
public document, commercial document, and private document.

So, therefore, Articles 171, 172 refer to falsifications of official, public, commercial, and private
documents. Pwede kung legislative document, 170. Wireless telegram or cablegram, 173. Medical
records, medical certificates, 174. Pero, do not be confused. Kasi akala nyo kung falsification yan,
tatatlo lang yan, hindi, anim yan, eh.

And then if the subject matter is an affidavit or a statement under oath, then the crime that is committed
punta ka sa 183, the crime of perjury. Article 180 to 183, perjury. Document din yan. But the subject
matter is not a document. It is a document which is under oath. Statement of facts lang under oath, 183.

Now, ano pa ang dapat alam nyo dyan? Supposing testimony before a judicial body, we will go back to
180, 181, 182. The crimes involving false testimony. The crimes involving false testimony, 180, 181, 182.
That will bring his own (unintelligible). Lahat ng pagsisinungaling nandyan na. Pagsisinungaling, pag-
iimitate, lahat na, katarantaduhan, lahat. Yung tungkol sa 167. Ano yun? Usurpation of functions, using
of an alias, and the other one is unauthorized use of insignia, I think, 176, 177. So that will finish
everything. Eh di tapos na tayo. Then, we will go to the crimes. So, that will be your assignment for next
week.

Revised Penal Code: Book Two: Articles 153-176

I told you that in the last part, 153, that is already a useless provision because there is no more the
penalty of death is no longer being imposed. Because under Article 85 of the Revised Penal Code, if you
bury with pomp somebody who was executed executed a death convict is executed, they just cannot
bury with pomp that person executed. So, because there is no more penalty of death in the meantime, so
that last part of 153 is not anymore applicable.

Now the others, public outcry in 131, 132. If the acts do not fall under 131 and 132, then the law that is
applicable is Article 153. Thats the one. The elements of 153, however, is that there must be tumults.
There must be a public disturbance. The 154 refers to prohibited acts in so far as publications without
authority or making it appear that the law is existing when in fact it is not. So, the acts that punished are
the prohibition or unauthorized publication, prohibition to publish an authorized and non-authorized
publication. We will just read them. We will study this 154 again when we take up libel in order to
differentiate what is libel and what is 154, the 154 is more on the acts that are punished regarding the
published articles.

Article 155 Alarms and scandals

Lets go to 155, this is more important. 155 is the crime of alarm and scandal. What is alarm and scandal?
It is enumerated in 155. The essence of alarm and scandal is that you create a disturbance either by
explosion, firecracker, firing firearms, engaging in nocturnal job. I do not know why engaging in nocturnal

4D 2007 28
job is a part of the disturbance. At that time of this nocturnal job, at that time, charivari or singing out-of-
tune, probably. But the more important one is the firing of a gun in a public place.

Now, when you fire a gun in a public place, then, of course, that will be alarm and scandal in 155 when
the purpose of firing of the gun is to cause a public disturbance. But firing a gun may lead to other crimes
committed. It will depend on many things. If the gun is fired in a public place merely to disturb, then that is
alarm and scandal. If a gun is fired at somebody else without the intent to kill so if a gun is fired,
directed at somebody else without the intent to kill, then the crime will be a crime against person. Thats a
crime of illegal discharge of firearm. But if the gun is fired, aimed at somebody else, with intent to kill, and
the victim is not killed, then that will be attempted felony. But if you fire the gun aimed at somebody else
with the intent to kill, and he was not killed, and then he spontaneously desisted at that stage, then the
crime is grave threat.

So, Ill give you an illustration. So, in a public place, you fire your gun. If you are in a public place, you
fired your gun towards the air. Bang! That is alarm and scandal because it is not aimed at somebody else.

You fire your gun, I aim at you without any intent to kill. I fire my gun. Bang! You were not hit, then that is
illegal discharge of firearm.

I have an intent to kill, I fire my firearm, my gun, and then you were not hit. I have intention to kill you, but
you were not killed. Then the crime is attempted felony, because there is an intent to kill.

But supposing I fired my gun with the intent to kill, but you were not hit, and then I spontaneously desisted
at the attempted stage. Whats the crime? Then that becomes a crime of grave threat.

Supposing I fire my gun without intent to kill, aim at somebody else, with proper bullet, but the bullet did
not fire. Whats the crime? I fire my gun with bullet, I aim at somebody else without the intent to kill, but
the gun did not fire. Whats the crime? That is a crime of frustrated illegal discharge of firearm. That is
illegal or frustrated illegal discharge of firearm.

Supposing I fire my gun, not knowing that there is no bullet. So I fire my gun, not knowing that it is not
loaded with bullets, aim at somebody else without intent to kill, whats the crime? It did not fire, of course.
Di ko alam na walang bullet. I wanted to fire the gun, aim at somebody else, without intent to kill, but the
gun did not fire because there is no bullet. Whats the crime? Impossible crime. Because it should have
been a crime of illegal discharge of firearm, but because of inherent impossibility, there are no bullets.
The crime becomes an impossible crime.

Now, the other thing in your Republic Act 8294 which is the law penalizing illegal possession of firearms
or ammunitions what is Republic Act 8294? It penalizes for illegal possession of firearm or explosives.
Of course, that is a malum prohibitum, but you will have to prove the intent. It is a malum prohibitum and,
therefore, the intent as an element of the crime is not the essential element. But what are you going to
prove if it is a malum prohibitum? You have to prove animus possidendi, the one I told you last time.
There must be an animus possidendi or intent to possess which is different from intent as an element of
the crime.

So what are punished under illegal possession of firearm? When is illegal possession of firearm
punishable? There are three ways:
1) When one is caught in the act of possessing a gun without the necessary license.
2) When one is caught in the possession of a gun with proper license, but has already expired, with
expired license. Thats also illegal possession of firearms.
3) And then the last one is you may have the license to possess, but if you bring it out without necessary
license to carry, that is also an unlicensed firearm.

So tatlo, no license at all, you have a license but already expired, and number three, is you have a license
to possess a firearm, but you do not have any license to carry outside of your residence. Tatlo.


4D 2007 29
And then the violations in Republic Act 8294 would be:
1) If one is caught in the act of an unlicensed firearm, then he is liable for illegal possession of firearm,
unlicensed firearm. So, if you are walking outside of your residence and then you are caught in
possession of an unlicensed firearm, then that makes it already a crime of illegal possession of
firearms. Thats number 1.
2) When an unlicensed firearm is used in the killing, then the crime will be either murder or homicide and
then the use of unlicensed firearm will be treated as a special aggravating circumstance. So, there is
only one crime of killing. The crime is killing. That means murder, homicide or infanticide and then the
use of an unlicensed firearm will be treated as the special aggravating circumstance.
3) And then the third situation is that when an unlicensed firearm is used in the commission of the crime
other than killing, then you will be liable for the crime to which the unlicensed firearm was used. Isang
crime lang.

So lets say--thats the importance of alarm and scandal. So, if one fires a gun in a public place, and
therefore, it disturbs the peace, and it was found out that the gun that was used in firing is an unlicensed
firearm, what will be the crime of how many crimes are committed? So, I used an unlicensed firearm in
a public place and I fired the gun. So Im caught in the act of possessing an unlicensed firearm because
policemen caught me right after I fired the gun. I am liable for alarm and scandal because I fired the gun
in a public place and, therefore, the crime against public order and punishable under 155.

What about the gun that was used, which was an unlicensed firearm? What will happen with that gun?
You cannot be liable for the separate crime of illegal possession of firearm. Illegal possession of firearm is
absorbed with the crime of alarm and scandal because that is what the law provides, that if an unlicensed
firearm is used in the commission of the crime other than killing, then you will only be liable for the crime
to which the unlicensed firearm was used. So, thats the anomaly. Why? The alarm and scandal is only
arresto menor, so if one is caught in the possession of an armalite rifle, and the policeman would like to
make money out of it, then he will say he will just tell the boy, Okay, fire the gun! Because if you are
caught in the act of possessing an unlicensed firearm, the penalty is prision mayor, minimum eh.

But if you fire the gun the same unlicensed firearm you fire the gun, there is only one crime of alarm
and scandal, and the penalty is only arresto menor. Eh kung mahulihan ka ng baril, eh iputok mo na lang.
Why? Alarm and scandal yun. Thats the meaning of it. It will absorb the unlicensed firearm, but not when
the unlicensed firearm is used in a killing because if it used in the killing, then that fact of being an
unlicensed firearm is appreciated as a special aggravating circumstance.

Sir, is it the same with rebellion?

No, because in rebellion, taking up arms is already the element. You mean, coup detat or simple
rebellion? No separate crime in an unlicensed firearm. That is included in the element of taking up arms
against the government.

Ang tanong dyan yung robbery with homicide. In a robbery with homicide, which is an aggravating in
fact, Im expecting a question in the bar, but medyo malalim yan, but they might ask it. Lets say, youre
charged with a crime of robbery with homicide. Robbery with homicide is a crime against property. You do
not usually appreciate treachery, evident premeditation or abuse of superior strength. You do not
appreciate in crime against property because the treachery is inherent in the crime of robbery. Inherent
yan eh. Even evident premeditation is inherent in the crime of robbery because you do not tell your victim
that you will rob him in the future. So treacherous always. So robbery, therefore, is a crime against
property and not appreciated.

Now, when on the occasion of robbery, somebody is killed, then the crime becomes a robbery with
homicide, but the killing on the occasion of robbery does not make the crime a crime against person. It
remains to be a crime against property. So, robbery with homicide, therefore, is a crime against property.

Now, supposing the victim in a crime of robbery was treacherously killed. So, it is a robbery. If the
treachery in robbery is absorbed, that is inherent. But supposing the victim in a crime of robbery was

4D 2007 30
treacherously killed, how will you treat the treachery in that case of a robbery with homicide? So sabi ng
Supreme Court, in the case of People versus Escote, if the treachery was employed in the killing then that
becomes robbery with homicide aggravated by treachery, but in so far only as the killing is concerned
because there is no treachery in the robbery. Likewise, the Supreme Court said that if a victim in a crime
of robbery with homicide, cruelty was employed, sabi ng Supreme Court, Okay, robbery with homicide
yan, but the cruelty shall be appreciated as an aggravating circumstance in the killing.

So, problem: You are passengers in a passenger bus. All of a sudden, a group of robbers and some of
the passengers brought out their knives and guns and then pointed at the victims. Now, one of the
passengers brought out his gun and then fought back the robbers who were armed with guns and knives.
The passenger died. Now, it was found out that the guns used by them were unlicensed firearms. So,
therefore, they committed a crime of robbery with homicide with the use of an unlicensed firearm.

So, how will you treat that unlicensed firearm? How will you treat that unlicensed firearm? Now, the
unlicensed firearm under Republic Act 8294 will be now absorbed in the crime of robbery with homicide
because the crime is robbery. So, the unlicensed firearm will be absorbed in the crime of robbery
because they were used in the crime of robbery.

But supposing, instead of guns, they use knives in the crime of robbery, and then later on, they used an
unlicensed firearm in the killing of the victim. So they brought out their knives. Bring out your valuables.
So they used knives in the act of committing the crime of robbery, and then one of the passengers
brought out a gun, and then one of the robbers, likewise, after they saw the passenger bring out a gun,
likewise, brought out a gun and then killed the passenger. It was found out that the gun used in the killing
of the passenger is an unlicensed firearm. So how will you now treat the unlicensed firearm?

If that is the case, because of the doctrine laid down in Escote, if the unlicensed firearm was not used in
the robbery, but was used in the killing, then the crime is robbery with homicide, and you can appreciate
the special aggravating of unlicensed firearm in so far as the killing is concerned because that gun was
not used in the robbery.

But if the gun unlicensed firearm was used in the robbery, then the crime is merely robbery with
homicide. The unlicensed firearm cannot be treated as a special aggravating circumstance because that
is absorbed in the crime of robbery.

In fact, merong kaso diyan. Although the facts are different, but by analogy - what happened there is that
after robbing the victims in a bus, a gun was found from the possession of the robber, which was never
used in the robbery. Pag baba nyang ganyan, may nahulog na baril, yung robber. When they picked up
the gun, then it was an unlicensed firearm. But the unlicensed firearm was picked up after the robbery
has already been consummated. So, anong crime to? Sabi ng Supreme Court, dalawang crimes yan.
One is robbery, the other one is illegal possession of firearm because the unlicensed firearm was not
used in the commission of the crime of robbery. O, pag ganun, di ba?

Then, we go to 156, 157, 158, 159, and 160. Now, did I tell you that 156, no the evasion of service, then
the other one is during the calamity, di ba? Evasion of Service during the calamity.

Articles 157, 158, and 159 Evasion of service of sentence

And then, we will have Evasion of Service. Other forms of evasion of service under 159, and then there is
quasi-recidivism under 160.

Now, I want you evasion of service, no, by the prisoner. When there is already a final judgment, you
can only be liable for a crime of evasion of service if there is already a final judgment, either ordinary
circumstances or during a calamity. If the evasion of service takes place during a calamity, then the crime
would be evasion of service during the earthquake, so the penalty is higher. But in both evasions of
service, there must be a final judgment. You cannot be liable for a crime of evasion of service if there is
not yet final judgment.

4D 2007 31

But granting a prisoner, a detention prisoner, escapes from prison, what is the liability? Now, if he
escapes from prison, then the detention prisoner is not liable for a crime. Lets say the crime is non-
bailable. He is charged with the crime of murder and, therefore, he is under detention. If that detention
prisoner escapes from prison, that is not evasion of service because there is no yet judgment, final
judgment. Is there a crime? If the person escapes while trial is ongoing? No, he is not liable for a crime.
The detention prisoner is not liable for a crime, but he may lose some of his rights. If there is now a
judgment of condition and he is convicted, then he cannot anymore appeal. He cannot ano, he will lose
his right to appeal because there is no judgment eh. For all we know, he might be acquitted. So, there is
no crime if he escapes.

The crime that will be committed will be a crime committed by the one who is guarding that prisoner
because if he escapes, the detained prisoner escapes through the cooperation of a public officer, then the
law that is violated is the second paragraph of Article 223. A public official consenting to an escape of a
detention prisoner. That is the second paragraph of Article 223. Where is that? Or it is committed by a
private individual or a private individual who is tasked to take custody of a detention prisoner, then the
crime that is committed by that private individual is what is found in Article 225.

You escape, there is already a final judgment. Final judgment, you escaped. Then, the person will be
liable for evasion of service if it is during calamity. Then, the evasion of service during an earthquake or
calamity. Now, the guard, the person, a public officer who is supposed to guard him consents to the
evasion of service, then that guard will be liable under Article 223 of the Revised Penal Code for
consenting the escape. Therefore, if it is co-negligence, then he will be liable for evasion of service
through negligence.

Now, if the one who is liable, who assisted him, is a private individual who was tasked to guard that
prisoner, then the law that is violated is Article 225 of the Revised Penal Code.

Now, if he is a private individual. I mean, he has not yet been convicted by final judgment and, therefore,
he is only a detention prisoner, there is no liability of the detention prisoner. The only effect of his
escaping during trial is that he might lose his rights in the Constitution or in the rules of criminal
procedure. If in case of conviction, then he might already lose his right to appeal, di ba? Eh nag-escape
eh. But the officer who caused the escape of the detention prisoner maybe liable under the second
sentence of Article 223 by allowing a detention prisoner to escape, or the person who allowed him to
escape is a private individual, then the law that is violated is Article 225.

In other words, the acts punished in evasion of service, whether negligence coming through whether
simple or during a calamity, yun ang liability of the accused convicted already by final judgment. The
liability of those who might have caused the escape will be those found in Articles 223, 224, and 225 of
the Revised Penal Code.

Then one under 159, whats the crime in 159? Ha? Other forms of evasion of sentence. But, actually,
other forms of evasion of sentence is simply violation of a conditional pardon. The crime there actually is
a violation of a conditional pardon, so we can correlate this with the conditional pardon in Article 92 of the
Revised Penal Code, ha? To the differentiate it from parole. The requirements sa conditional pardon eh a
conditional pardon is granted by the Chief Executive wherein the accused and the government will enter
into a contract. There is a contract between the government and the the accused granted pardon. The
contract is that both parties will have to follow strictly the contract and, therefore, there are conditions set
forth in the grant of a conditional pardon that should be followed by the pardoned convict.

Unlike in parole, in parole there is also a contract. But a violation of the conditions in parole may not lead
to a crime of other forms of evasion of service. Walang crime ng violation of a parole, eh. Theres no
crime of violation of parole. Unlike in a conditional pardon, violation of the conditional pardon is about the
crime of Article 159. But there are two periods in 159, in defense on the period remitted. So, if the period
remitted is more than six years, then the effect of a violation of the conditional pardon is that the accused
will have to be arrested and serve the remaining sentence. But if the period remitted is less than six

4D 2007 32
years, then there is a crime of violation of a conditional pardon, the penalty of which is prision
correccional.

Its like this, so if you are convicted, lets say you are sentenced to a penalty of 15 years, lets say 15
years. And then now, on the 1/3, you can be pardoned when you have served 1/3 of the sentence. So,
1/3 of the sentence is 5 years. So, you are pardoned here, pardon or conditional pardon. So, 15 minus 5,
then thats 10 years, di ba? So, you were remitted more than 6 years, 10 years eh, di ba? 10 years. So,
if, therefore, you are granted conditional pardon, after being granted conditional pardon, you violated the
conditions of pardon, then what will happen to you is that you will be arrested and serve the remaining
sentence of 10 years. You will be brought back to the National Penitentiary and then serve the remaining
10 years. Why? Because the remitted period is more than 6 years.

Now, if the penalty, however, is 6 years and, therefore, 6 divided by 2, you were pardoned 2 years. After
2 years, if theres a conditional pardon. So 6 minus 2, four years. The period of what must be remitted
there is 4 years, and then you violate the conditional pardon after 2 years, then what will happen to you is
that you will be liable for other forms of evasion of service. You will be charged and then you will be
meted the penalty of prision correccional given the penalty period remitted, okay?

Article 160 Commission of another crime during service of penalty imposed for another offense; Penalty

Then, 160, quasi recidivist. I told you before, you have to know what are these repetitions. Apat na
repetitions yan. Recidivist under Paragraph 9 of Article 14. You know the basic principle of recividism.
The second crime committed must be embracing the same title and there should be previous conviction.
Reiteracion under Paragraph 10 of Article 14. Then the second crime committed must provide for a higher
penalty or if there are two or more crimes committed, the penalties may equal or lower than the first crime
committed. Of course, the condition there is that it must be prior punishment.

Then, you go to Article 62 because 160 writes that other than those provided for, other than that provided
for in Article 62, Paragraph 5, thats means a habitual delinquency, a person will be considered a quasi
recidivist if while serving his sentence, ha, if while serving his sentence, at least that there is already final
judgment. You will not be serving your sentence if there is no final judgment. You commit the second
crime. Walang conditions ng ano dun embracing the same title. Walang condition dun that higher, where
the penalty is higher than the first crime committed. So, you can be a quasi recidivist and a habitual
delinquent at the same time because the law says even if you fall under Paragraph 5 of Article 62, that
means youre a habitual delinquent. A habitual delinquent is, ano ang habitual delinquency? Di ba
mahirap yun? Anniversary of 10 years if there are five crimes. Di ba, hobo, robo, hubad.

Serious or less serious physical injuries, may kasamang light physical injuries dyan, di ba? Then, you will
have theft, robbery, and estafa. So, all of these crimes, if you commit those crimes on the third time, ha.
Ang habitual delinquency, it will only take place if the crime committed is committed on the third time. And
then the second time committed, and the third crime committed should have been committed within the
10-year period from second crime was committed. You can be a habitual delinquent at the same time, a
quasi recidivist under Article 160.

So, lets now go on to those falsification, pagsisinungaling, sarap batukan, lahat na, marami yan. Okay.

Article 161 to 169 Forgeries

That will be easy for you. I will just mention the articles and you follow me later on ha. Okay. So when we
talk of the seal of the government or the Chief Executive, then the laws that are violated will be 161 to163.
And then, 164, 165, you are referring to mutilation of coins, imitation of coins. And then 166, 167, and
168, they refer to acts as counterfeiting or imitating notes payable to order or bearer or those documents
evidencing indebtedness of the government.

So, what are those included? Then, this will include kwarta o paper money or those substitute for money
as evidence of indebtedness of the government. Like what? Treasury warrants. Yung mga bonds, no?

4D 2007 33
Yung mga Central Bank bonds ba yan? Yung ano, yung may mga maturity dates. Yung may bonds,
Treasury Bonds ata, that call it Treasury Bonds, floating bonds. You go to Central Bank, yung may
Treasury Bond. And then after a certain period of time, you exchange that ano, you exchange that
certificate and then a corresponding interest will be earned. So that is an evidence of indebtedness of the
government because if the government accepts that, then it is like guaranteeing, no, the payment of that
upon maturity date. Therefore, these are documents evidencing indebtedness on the part of the
government.

So, if they refer to documents, I mean those documents or notes payable to bearer or order or either
paper money, yung legal tender. Then the crimes would either be:
1. Counterfeiting.
2. Illegal use.
3. Illegal possession.
Youll find them in 166, 167, and 168.

The other crime involved is Mutilation of Coins. It is a crime to mutilate a coin. Why is it a crime to mutilate
a coin? Because at that time kasi, during those times when the law was enacted, yung mga metals natin
noon contains precious metals, so it was prohibited, therefore, to mutilate the coins because what they
usually did was to mutilate the coin. Ginagamit na chain. Kinukuha uung expensive parts with precious
metal. So thats why the law prohibits the mutilation of coins, thats the reason. But nobody now mutilates
the coins, why? Lugi ka. Anong makukuha mo dun, lata na eh. Wala na eh.

So, that law probably is no longer effective. Now, when you talk of counterfeiting, then that means that
you counterfeit paper money. You make it appear that our money that is manufactured is the genuine
money, thats the idea of counterfeiting and that is punishable.

The other one is uttering. In the counterfeit, the one who counterfeits the money is liable. Now, the one
who actually uses the money is liable for uttering. So, thats part of Article 166-167, uttering of false notes.
And the one who is caught in the act of possessing false notes is liable for the crime of illegal possession
of false note. But in illegal possession of false notes, there must be an element of intent to utter, intent to
utter. That means that, if Im in possession of lets say, ten fake money and Im not using it, they are just
inside my wallet, I will not be liable for illegal possession because there is no intend to use it.

So, usually in bar, yung mga nagpapasikat diyan sa kuwan, Air Force 1, they gastos on classmates. Yung
mga lawyers dun, pag nagti-tip sila1,000 ang yayabang, 1,000, 5,000. Yun pala fake. Kamukha mo yung
GRO diyan eh. Maraming ganun because they expect money pasikat lang. Yun ang uttering of fake
notes. But if you are not using it, you cannot be liable for illegal possession. You have to show that there
is an intent to utter.

Now, in an old case, Bank of Republic of the Philippines Islands, an old case raised in the Supreme Court
because the accused was caught in possession of several pieces of false notes. He was convicted, but
the Supreme Court made a distinction that mere possession of a false note is not a crime because what
is punishable is that there must be intent to utter. Kasi, gaya ko gusto kong merong akong false note, di
ko naman ginagamit, remembrance eh. Why should I be liable? So, sabi ng Supreme Court, if one,
however, is caught with several bundles, let say, you are not using it, but you were caught in possession
of 10 bundles of false notes. Ah, sabi ng Supreme Court, you will now be liable. Why? The possession of
so many bundles is an element of intent to use. Sabi ng Supreme Court, ah, saan mo gagamitin yan, and
dami-dami? Sabi ng akusado, saan ko gagamitin yan ang dami-dami? Sir, wala pa kasing kuwan nun eh,
wala pang - sabi niya wala pang tissue paper nun eh. Yun ang dipensa niya.

Sir, the possession of many bundles is already an element or is it only.

No, presumption lang yon.

Its only a presumption.


4D 2007 34
You have still to prove that there is really intent to use them.

So, what if the money was used to pay?

Sometimes they call it boodle money. You are not liable because you dont intent to utter it. Uttering is
simply use it for legal purposes. Thats the meaning of utter. Utter actually is to introduce it to the market.
That is the one that is actually punished.

Article 169 How forgery is committed

And then we go to Article 169. Article 169 is not a crime. Lets look at the definition of what forgery is.
Kaya pag sinabi na, Uou are liable for the crime of forgery, walang crime na forgery. Forgery is a way of
committing a crime of falsification. But forgery is not a crime because forgery is merely the act of imitating
the signature or the handwriting, making it appear that it was signed by the person concerned. Yan, yan
ang mga forgery. You forge, thats the meaning, but thats not a crime. Under 169, it is a manner of
committing a crime of falsification.

Articles 170, 173, and 174

But the more important provision, therefore, will be Article 170, where the subject matter of the
falsification is a legislative document, you know, it does not say who should commit the crime of
falsification of legislative document, what the law says is any person.

Now, you jump to article 173 which is a crime of falsification of wireless telegram or messages. The law,
likewise, does not provide that it should be committed by a specific or a class of persons. The law says
any person. We will I will tell you the importance of what Im talking later on, ano ha. Para mai-compare
niyo.

And 174 is falsification of medical certificates or service records or merits which makes it appear that you
are sick of colitis or sore eyes that is why you did not attend my class. You presented a fake medical
certificate, falsification yan under 174.

Now, you look at 170, 173, and 174, the law does not say what is falsification in 170, 173, and 174. And
nakalagay lang dun, falsifies legislative document, false merits or false medical certificate or messages.
So, if you talk, therefore, of falsification in 170, 173, and 174, then the act can be done through what is
provided for in Article 169. Yun ang falsification ng 170, 173, and 174, all in Article 169 on forgery. Do you
follow?

Article 171 Falsification by public officer, employee or notary or ecclesiastic minister.

Now, when it comes, however to official public document, commercial document, and private document,
the laws that are applicable will be Article 171 and Article 172. But in Article 171, falsification under 171
can only be committed by three specified persons or groups of persons.
1) Public officers taking advantage of their public position.
2) Notary publics.
3) Ecclesiastics.
Only those mentioned in 171 can be liable for the crime of falsification.

Article 172 Falsification by private individual and use of falsified documents.

Now, if you go to Article 172, then the crime of falsification can be committed by private individuals, but it
makes reference to the falsifications in 171. So, what is the implication of that? The implication of that
when it is committed by private individual, then the law that is violated is 172. But the manner of
committing the crime of falsification in 172 is likewise the manner of committing the crime of falsification in
Article 171. Do you follow?


4D 2007 35
Now, Ill give you an example how to illustrate that. There are four kinds of falsification of documents
under 171 and 172 although like official document, be it a public document, be it a private document or be
it a commercial document. But the official document and public document are created as one for
purposes of falsification. So, when you speak of official document, theyre just the same as (talking)
document for purposes of falsification. But, theyre not the same in meaning. The other one is commercial
document then the last one is private document.

The official documents are those that are issued by the Government as part of the records of the
Government or an order to evidence an act of a certain government agency, payment of taxes. You
issued a receipt. That is an official document because it records the payment, a governmental function.
You apply your marriage license. That is also an official document because it becomes part of the records
of the Civil Registrar. Birth certificate, court records, pleadings, complaints, decisions. All of these are
public records or official documents because they become part of the official records of the government.

Now, official documents may, likewise, include documents prepared by private individuals. These are not
because, generally, the official documents are those that are prepared and issued by a government
official. But there may be official documents prepared by private individuals. When those documents
become part of the records of the government they become official documents.

Application for a marriage license, the application is filled up by the applicants. Application of a marriage
contract, the applications are made by private individuals. But once you have submitted it before the
proper agencies they become part of the records of the Civil Registrar and, therefore, official documents.
Those who are entering the government service, your application form. They become part of the record of
the Civil Service Commission or the COMELEC or what, then they become a part of the records of those
government agencies and also become official documents.

Now, the other one is public document. A public document usually is not a document which will record a
governmental function that this may perform. But rather it is prepared by private individuals. The public
document is one involving a deed of conveyance. In other words, when you speak of a deed of
conveyance, therefore, that document if consummated will produce rights and obligations of the parties
with the participation of a notary public. So, a contract of sale that is a deed of conveyance, you convey
something, the other one pays. So, there is an obligation to deliver and there is an obligation to pay.

Now, if that contract of sale is acknowledged before a notary public that means that you go to a lawyer
and then you swear before the lawyer. Yung acknowledgement, nakabasa na ba kayo nun, before me, a
notary public, personal appeared Mr. A herein referred to as the vendor, exhibiting his certificate, issued
at blah-blah-blah, and Mr. Vendee blah-blah-blah, herein referred to as the vendee. That the attest that
they executed this document with their free will consisting of seven pages with each page signed on the
left portion including the last page. Subscribed and sworn to before me. That is the acknowledgment.
Thats what you call acknowledgment. So, that is the participation of a notary public.

If that document now is the one required by law like the acknowledgement then that document becomes a
public document. Then for purposes of falsification, that public document is treated in the same category
as official document. Now, if that document, however, is not notarized or is not acknowledge before a
notary public and therefore it is a deed of conveyance, but in the absence of a notary public or
acknowledgement then that document becomes a private document, okay.

And the last one is commercial document. Sabi nila, what is a commercial document? The book of Reyes
will say, or even in the book, a commercial document is one that is governed by the Code of Commerce.
Meron nang definition, di ba? A commercial document is one that is governed by the Code of Commerce
e ang dami covered ng Code of Commerce.

Ano ang commercial documents? So, commercial documents are those that are usually substitute for
money. Substitute for money, promotes business transaction. Ang importante diyan is the characteristics
of a negotiable instrument. In other words, it can be transferred from one person or negotiated from one
person to the other. This is not only limited to personal checks, yung cheque, commercial documents yan.

4D 2007 36
Because it promotes business transaction, it can be negotiated or delivered from one person to the other.
Yung mga iba dun may mga bill of lading, warehouse receipt, di ba? Bumili ka ng 100,000 rice. Where
will you get where will you store the 100,000 sacks of sugar or rice? You may have to get a bonded
warehouse. You store the 100,000 grams of sugar in a bonded warehouse, what will the warehouse do?
It will issue a warehouse receipt. If you are now in a possession of the warehouse receipt then you
become naturally the owner of the sugar or rice stored in that warehouse. You want to sell those boxes of
sugar. What will you do? Do you need to physically transfer the 100,000? No, you just negotiate the
receipt and whichever is in the possession of that he becomes the owner. So, that is the meaning of a
commercial document ha, okay.

Now, commercial document and official or public document have the same element. The only element is
there must be an act of falsification. Whatever is the motive in falsification of a public document, if its
committed by any these three mentioned in Article 171 under the (Revised Penal Code), 171 that means
a public official taking advantage of his public position or a notary public or ecclesiastic, the element of
intent or cause injury to a third is not a requirement. So, the mere act of falsifying that document is a
consummated crime of falsification.

Unlike when it is committed by a private individual under Article 172, when it is a private document and
this is covered by Article 172, then the crime is falsification of a private document. And, therefore, has two
essential elements:
1) The act of falsifying the document.
2) To cause injury to third persons. Remember that, to cause injury to a third person.

What about if a private individual commits a crime of falsification of an official document? Is there also an
element of intent to injure? Ill give you an example. You are an employee of the Civil Registrar. You are
the one in charge of the issuance of a marriage license or marriage contracts. You take advantage of
your public position. You make it appear that the person who wants to get married is already of age. So,
finalsify mo yung edad niya, di ba, in a marriage license. Tama ba? Ano bang age na ngayon para
makapag-asawa?

Eighteen.

So, 18. You made it appear that the one of the contracting parties is already 18 when he knows fully well
that he is only 17. So, he issued a marriage license, pinafalsify nya, ginawa niyang 18. What about if he is
a private individual? He falsified a marriage license, the same official and the same contracting party. He
likewise falsified the marriage license. He makes it appear that he is 18, when in fact he is 17 years of
age. Question: Are they liable for a crime? If it is committed by public officer taking advantage of his
public position, whether that marriage license is used or not because there is an element of intent to
cause injury, he becomes liable for a crime of falsification of public document. Why? Because there is no
need to prove that the falsification of an official document was intended to cause injury to another.

Now, what about the minor boy? He falsified the marriage license. So, if he did not use the license that he
falsified, can he be liable for a crime of falsification of public document or official document? Is it the crime
of the individual? No, because there is no harm done to anybody because he did not use the marriage
license.

Thats the difference between 172 and 171. But Im referring to official document, ha okay? Kinakailangan
dyan kung ikaw ang nag-falsify ng official document, you are a private individual, you need to show that it
caused injury to another. But if you are a public official who takes advantage of your public position, there
is no need because mere falsification is already a crime of falsification under 171.

Now, the other thing is that the most probably you know this that there is a falsification of public document
that maybe complex with estafa. You can complex the crime of estafa through the falsification of public
documents or even malversation through falsification of public document or probably theft through
falsification of public document, qualified theft through falsification of public document. But you cannot

4D 2007 37
complex estafa with falsification of private document. There is no crime of estafa through falsification of
private document. Its either estafa or falsification of private document.

Why? Because, in a crime of falsification of a public document, there is only one element of falsification.
Whereas in the crime of estafa, there are two essential elements which are deceit and damage. Whereas
in the crime of private document, there are two essential elements, one is the act of falsifying the
document and the other one, the intent to cause damage. So therefore, in the crime of estafa in
falsification of private document, they have common elements of damage. So, therefore, if there are two
common elements of damage, then they cannot be complex. Kasi in private document may damage and
falsification. Estafa, damage and falsification. So, there is no crime of estafa through falsification of
private documents. Its either estafa or falsification of private documents.
Sir, for example sa falsification by the private individual? Is it inherent that youre damaged already
because if no one would claim injury.

Well if it is not used, there is no crime of there.

If they use it?

Ah, eh crime na yan.

Even if the damage is not evident?

Yes.

Even if they cause damagae?

The moment that you use a falsified document, then you are liable. Unlike in a public official, even if it is
not used, as long as you took advantage of your public position. Then the other thing that is also
important in falsification, you know, falsification is a crime where there are no witnesses. Walang magpa-
falsify. Hoy! Halika, obserbahan mo. No. So how will you determine who the author of the falsification is?
The presumption is that the one who benefited from the falsification is probably the one liable for the
crime of falsification. Who was benefited from it? Kung government official, okay yan, eh. But if a private
individual, the only crime that he should know that he is the one, is the author is when he benefits from it.
Kaya nga dapat gamitin niya eh para you know who was responsible in the crime of falsification.

In the Article 171, you memorize the eight manners of committing the crime of falsification indicating the
signature. Yan ang pinakamadali eh, indicating the signature or a (rubric), the ecclesciastic. You make it
appear that the person has participated, when in fact, they did not, di ba? You make it also appear that
person signed this document, when in fact, there is none. You altered due dates. You make an untruthful
statement in narration of facts. You interpolate or substitute. Di ba interpolating or making it appear that
the original exists when there is none, when there is no original or attaching a document for the registry or
a protocol, then that document is not existing, di ba? Any act that will change the meaning of the
document, just like in the crime of falsification. Madali lang yung walo? Can you memorize? I-memorize
nyo lahat yan, pati ano. Okay, we will try to give you illustrations, ano ha?

So, when a document is already consummated, you are not supposed to make any erasures. So this
usual interpellations without the knowledge of the other party, di ba? Lets say contract of sale. Di ka na
pwede magpalit dyan eh because consummated na. But you can still change without being liable for a
crime of falsification. You can still change when the act of changing or interpolating or erasing will not
change the meaning of the document or will not affect the integrity of the document.

Like, for example, nagkamali ka ng spelling sa pangalan, walang comma, walang semi-colon, mali
English, pinalitan mo, eh wala ka na dun. Walang crime, although, the documents are already the
parties have already signed. Then, di pwede yung sana ma you interpolated something when that was
found out when suppose that word was not there when the document was signed. There is no crime of
falsification because it is not intended to alter the meaning of this document. Or when you alter the

4D 2007 38
document but the one that is altered is not material to the contract. Walang falsification dun. Or you alter
the dates, but its not intended to change the meaning of the document.

Lets say, 2006 but actually the contract was signed 2007. What was written is 2006. You can say change
it to 2007 because by erasing it, it is for the purpose of correcting. Therefore, there is no falsification. But
if you really take the signature, then falsification yan. Or you make it appear that the person participated
in the contract, but in fact he did not. Or you make it appear that the contract was entered into by
persons, but then it is not. Yan ang mga crime of falsification. Madali lang eh. Or you altered two dates,
altered two dates, that means the dates are crucial to the document.

For example, in order to avoid the prescription of the document, di ba? May mga prescriptive periods
minsan, i-activate mo. Youll change the dates so that it will not be covered by prescription, ayun,
importante yun. Or probably, if it is a crime, you know, you alter the date to make it appear that there was
no crime committed on that day, ang importante yung dates that becomes a crime of falsification. Or you
change the amount, crime of falsification yan. Because if you change the name of the document, you will
change one of the obligations. Falsification yan, hindi yan falsification. Lahat ng pinalitan na iba ay
falsification yan. But the most important one in falsification is making untruthful statement in the narration
of facts. That is the most important one. How can that be committed? Making untruthful statement in the
narration of facts.

But, the first thing that you have to remember is that, there must be a duty to disclose the truth. If there is
no duty to disclose the truth, then there is no crime of falsification. In other words, if in a questionnaire,
hindi ba? Lets say, you are applying for a job. You go over there, and then meet the other qualifications,
and then you are asked. Are you a college graduate? Therefore, it is your duty to disclose the truth. You
know that is crucial in your application for a job in the government. Or have you ever been convicted of a
crime? Then you have a duty to disclose the truth, morality or this is also recorded in your application for
a job abroad.

But,if there is nothing to disclose, because it is not a duty to disclose the truth. Lets say, anak mo, you
are applying for a job. How many children? Di ba? But having children is not essential in your application
for a job. You only mention four pero pala meron ka pang illegitimate children, ha. You might have
falsified something because you did not tell about what you were supposed to tell. Hindi crime of
falsification yun because there is no duty to disclose the truth, ha?

However, if what is asked of you will call for a conclusion or an opinion even if there is a duty to disclose,
you cannot be liable for a crime of falsification. Example, you have a duty to disclose, the requirement is
that you must be a college graduate. Are you a college graduate? Then you said, Yes. But in fact, you
are not, di ba? Okay, falsification yan when the truth is not disclosed. Have you ever been convicted of a
crime? You did not disclose it, you said, no, when in fact, you have been convicted then you have the
duty to disclose, falsification yan. And then at the end of the questionnaire, nakalagay dun, are you
qualified for this position? And then you said, yes, when in fact, you are not qualified. Are you liable for
falsification? No. Why? Because that calls for an opinion.

In the narration of facts, you are asked to state a fact. If you are not asked to state a fact, you are asked
to give your opinion, and the conclusion based on facts then you are not liable for a crime of falsification.
So, lets say, are you qualified for this position? You said, Yes. That is not a falsification. Why?
Because you are not being asked of facts, but you are being asked of your opinion. Eh syempre pag nag-
apply ka sabihin nun, Are you qualified to be in this position? Sasabihin mo ba, No. Eh di hindi ka
tatanggapin. Yung una, pride yun. Yan ang pinaka importante sa falsification, because that is the
hardest. Its the hardest because you do not know how it is violated there, hardest yun. But if you know
how it is that committed, then easy. Basta statement of facts yan. Not opinion or conclusion. What do you
think, what do you think? And then I said, Im correct, when in fact you are not correct. Walang
falsification yun because you are asked of your opinion or conclusion.

But if you did say, Are you qualified? Walang ano dun. But if you say, Im a college graduate, when in
fact, you are not, ayun. If there is a duty to disclose because that is an essential in that document, then

4D 2007 39
you will be liable for a crime of falsification making a untruthful statement in the narration of facts. May
mga erasures na lagda, eh. Intercalations, substitutions, erasure the key there is really changing the
meaning of the document. Will it affect the integrity of the document? If your answer is yes, then there is
falsification. If there is not, there is no falsification.

And how do you determine if it will affect the integrity of the document or it will change the meaning?
When it is completely change the meaning of the document. For example, contract of sale in the amount
100,000 pesos, you changed to 50,000 pesos. Eh di nag-iba na yung meaning ng document. It is a
contract of sale of 100,000 pesos naging 50,000 pesos na. Yun ang ibig kong sabihin. So walang
problema, 171-172. Madali ano?
Articles 173, 174,175, and 176

173, the wireless. 174 then what 175 use of falsified document, that is a crime, offering false evidence
or falsified document. It is a crime under 175. Then 176, illegal possession of apparatus in the crime of
falsification of public document, the crime of falsification, you just read them. Yes?

Sir, clarification again. If a private individual falsifies a public document, there is still a need to prove
damage?

No, its not prove damage. Its the intent to cause damage. Intent. If a document is falsified by private
individual and he does not use it, there is no intent of to cause damage. For example, the receipt, the
receipt that you gave to me, if you pay taxes in the government. So, the receipt is legally is an official
document. I falsified it, but I kept it. No harm.

Sir, in the case for instance is the intent to damage was not there. And then, does that mean it can be
complex it cannot be it can be complex because it is not applied in the falsification a private individual
of public document. It will not prove that

I gave you examples, di ba? Contract of sale of a public document. Okay. So, you falsified document, but
it was not used. So he kept it or he threw it. Walang crime. Because the gravamen of the offense is the
document that is falsified. Pinalsify nya di naman nya ginamit, eh. So, thats the case. But if you are a
government official because the records are kept by the government, you change the amount in official
receipt whether you benefited from it or not, liable ka na because you are a government official taking
advantage of your public position. Let say contract of sale, meron tayong pinirmahang contract of sale.
Pinalsified mo, hindi mo naman ginamit eh Anong crime don? Wala. Unlike if you are keeper of official
document. Yes?

Sir, for example lang you are a doctor and you request for a certificate. And that particular certificate is
used to either certify that youre physically fit or youre sick. Sir, for example there is really no such
sickness, sir. Would it fall under public document or private document?

Specific yan, pag medical certificate, the law that is applicable is 174. Medical certificate do not need to
prove intent to cause damage. Once there is a falsified medical certificate, thats it, liable ka na dyan.

But, sir, is it an absolving circumstance that the doctor said that my interpretation, thats what I saw.

No, hindi pwede yun. Otherwise you mean that you did not know that it will be used?

No, sir. But you will just say that based on what I saw, that is my interpretation. That the person was
either poisoned or there was an attempt to poison him.

He is liable niyan. What he can do the only defense of the doctor is that he was really sick. Kasi ano
yan eh, what is punished actually is the issuance of the falsified medical certificate. Now, I think the
question should be a case. The falsification done, that it may happen in two ways. The doctor makes it
appear that you were sick when, in fact, you were not sick. That is covered by 174. Or the other one is
that, a person presented a medical certificate which is falsified. The one who will be liable is the person

4D 2007 40
who filed something with a falsified document. Like for example in this hospital, di ba they keep records?
They keep records of all patients, eh. Now, if the doctor now comes out with the medical certificate
contrary to the records in the hospital, liable yan ng falsification because he is the one issuing.

So it may happen that the doctor is the one who uses a falsified document, then hell be liable. Or it may
happen that the person claimed that he is sick and then presents a certified medical certificate when in
fact there is none, siya din ang liable.

What if it was a private individual who falsified the medical certificate?

He will be liable because that is covered by 174. Thats why there are two things that can happen there.
Thats why its not covered in Article 171 and 172 because a medical certificate cannot be treated as a
private document or commercial document or even a tugtog ng patay yan ha.

Now, in the meantime, after you read 176 up to 182 in the meantime. Im not saying that we leave out
177, but I follow the sequence of the documents that are subject matter of all these crimes. So you can,
therefore, hold out all these documents, subject matter of 170, 171, 172, 173, and 174.

If the subject matter, however, is likewise a document but it is not an official, they do not fall in 170, 171,
172, 173, and 174, but it is a statement under oath or a testimony under oath. That means that it is a
statement of fact made under oath or a written statement of fact made under oath or an oral testimony
made under oath, then the crime may be considered as the crime of perjury under Article 183. So the
subject matter, therefore, of 183 is a statement of facts. It is either a written statement of facts or even a
statement made under oath. So what is a statement under oath? The law requires that a statement must
be made before a notary public or a duly authorized person to administer oath. Then that statement of
fact may become the subject matter of Article 183. So, affidavit of loss, di ba?

Now, if you want to secure a license. Lets say you apply for a drivers license. Then the drivers license,
you are issued. And you were caught, and then your license was confiscated because you incurred some
violations. What you do is that you can no longer secure a new drivers license because confiscated na
eh. You are already prohibited to drive within a certain period of time because of too many violations.
What you did was to execute an affidavit of loss to go around the law. State Iblah blah blah. I was
driving in the vehicle, somebody picked my wallet included in that wallet is a license and, therefore, I can
no longer locate it and I am executing this statement in order to secure another license. Then at the end
of that statement, you will find there the jurat. Alam ninyo yung jurat di ba? To differentiate it from
acknowledgement. Ano yung jurat? A mere statement that that statement is under oath. Subscribed and
sworn to before me this blank day of September date and so and so name of the notary public. Thats the
meaning of jurat.

Now, if those statements are false and then malicious. These are statements because it is not only the
false statement that is punishable under perjury. It must be attended with malice. In other words,
fraudulent. Mere false statement, just to be giving a false statement is not a crime of perjury. Ang sabi
nila it is a sin to tell a lie. Therefore, that is perjury. Yung kaso ni Erap, sabi ko sa prosecutor eh it is a sin
to tell to tell a lie, sabi ko sa kanya, sabay tago. Bakit, if it is a sin to tell a lie, I should have been
imprisoned already many times. How many times did I tell a lie to my wife? Perjury yan. What makes a
crime of perjury is it must be done with malice.

In other words, when you speak of malice, yan ang unang element dyan. It must be a statement of fact,
done with malice, and number two, substantial for material to the document. For example, lets say yung
affidavit of loss na yan. Perjury yan. Why do they have to execute a statement of fact, affidavit of loss, to
secure another license when in fact you can no longer secure a new one because confiscated na yung
license mo. Yung ang malicious. There is a motive on the part of the affiant to execute a perjured
statement.

But if the one that is perjured is not essential to the document like for example affidavit of loss, and then
you stated there I, Mr. blah blah blah single when you are already married, walang perjury yun because it

4D 2007 41
is not substantial or essential to the document because what is essential in the document is the statement
of loss. Walang silbi yun kung ganun ang sinabi mo, binata ka dun. That is not perjury because it will no
affect, in any way, the document. Yung ang sinasabi kong immaterial. The most important thing is that it
must be done with malice.

Now, the other kind of perjury is you do not execute a written statement, but you are required to testify.
Then before you testify, you are asked to raise your right hand. You will tell the truth, nothing but the truth.
Yes, I do. The you answer the question and then you now give perjured statement. Yun ang other form of
perjury. But the oral testimony in the crime of perjury must be done before a quasi-judicial body. It must
be through a judicial body. Why? Because if the statement is made before a judicial body like, for
example, the courts. Before testifying, you raise your right hand. You tell the truth and nothing but the
truth. The you start giving false statements, malicious. Sabi mo, hindi. Ito, siya ang pumatay. Kasama ko
yan. Andun kami sa America. Andun kami sa New York, yun pala sa New York, Cubao lang.

He is now telling a lie and that is false testimony because it is really false. Anong crime yun? Is that
perjury? No, that is not perjury. The crime will either be those punished under 180, 181, and 182. If the
statement is made before the false testimony is made before the court, then the crime will either be
false testimony in a civil case, false testimony favoring the defendant or false testimony in a criminal case
favoring the accused. But if the false testimony is made before a quasi-judicial body, Congress, Senate,
fiscal yan ang mga quasi-judicial bodies. Then the crime is perjury under Article 183. But in both cases
malicious., with malice, because mere false statement is not a crime of perjury.

What is subornation of perjury? Subornation of perjury is a principal in the crime of perjury. I ask you to
execute a perjured statement. The one who executed the perjured statement is liable for the crime of
perjury. The one who induced somebody to commit the crime of perjury is liable for the crime of
subornation of perjury. In other words, subornation of perjury is equivalent to a principal by inducement in
a crime of perjury.

rticles 176 to 177, we will take those up next Wednesday. Next Wednesday, you can read 185. Basahin
niyo lang yung 185, yung fraudulent public auctions. Public auction yung mga new laws on public auction
you cannot find in 185. Do not read anymore 186 to 189, unfair competition, infringement. All those laws
have been amended by RA 8293. I think Intellectual property Law, kinuha ninyo sa Commercial Law yan.

Imposibleng hindi kukunin yan. Intellectual property. So, 186-187, 189, amended na ng Okay, so what
we will take up Wednesday, therefore, will be Republic Act 9165, otherwise known as the Dangerous
Drugs Law of 2002. Yan yung mga nag-under sakin dyan sa Dangerous Drugs Law, naaala pa nila from
first year.

Now you read the following provisions in 9165. You start with Section 98. You start with Section 98.
Paatras ako eh. And then you go into Articles 66 and 70 then 98. Then you go back to Section 4 to
Section 29 including Section 33. Ang important sections dyan sa Section 4 to Section 29, including
Section 32, Section 4, 5, Sections 11, 12, 15, important yan, 11, 12, 15. Section 24, Section 25, Section
29. But, of course, all the sections are important kasi yung Section 4-Section 29 those are the acts that
are punished, Kaya lang Im just giving special attention to those that I mentioned. Yung Section 4-29 i-
memorize lahat yun because when I give you the numbers, you give the (clauses) of those numbers.
Section 26, Section 33, Section 92 also. Section 66, Section 70, Section 91 and 92 and 98. General law.
Yung ang kailangan talaga mag-explain ako, hindi pwede sa recitation yan. Sobrang mahirap talaga,
mahirap. Pag nag-recitation tayo, doon tayo sa robbery, yun mahirap yun. Robbery with force
ofmahirap yun. Syndicated estafa. Talagang mahihirapan kayo sa Dangerous Drugs Law. Then I will
give you some cases. I will discuss some cases probably in Section 26, 33 wag kalimutan yan because
you will understand what Ive been talking about. Section 11, 12, and 15. Section 5, important yan.
Section 4. Section 29, planting of evidence.

You read 364 of the Revised Penal Code. When you read Section 29 of 9165, you read it together with
Article 364 of the Revised Penal Code. Tignan mo nga yung 364 hija, kung tama ako? Incriminatory

4D 2007 42
machinations. Intriguing against honor napapagbaliktad ko. 364 is ano incriminatory machinations?
Intriguing against honor. So, 363 is incriminatory machinations.

What is 364? Intriguing against honor.

365? Incriminating innocent person.

So instead of 364, 365. You read 365 together with Section 29 of 9165. importante yan.

What is the crime of incriminatory machinations? 363.

Ayun na nga. Sabi ko 363. 363 is incriminatory machinations, di ba? You read together with Section 29.
364 is intriguing against honor, di ba? Kasi 365 yan ang huli eh. 365 is culpa in criminal negligence. 362 I
think is proof of (proof) in the crime of libel.

Okay. (Unintelligible) kasi malayo. Ang question dyan ay mag-plant ka ng evidence ano ang crime? You
make it appear that somebody was in possession of an unlicensed firearm, what is the crime? You
planted firearms in order that a fellow will be liable for illegal possession of firearms, ano crime? Yan 363
yan, incriminatory machination. But if you plant dangerous drugs, then that is also making it appear that
somebody committed a crime of violation of Dangerous Drugs, the crime is not 363, that is Section 29,
planting of evidence.

Revised Penal Code: Articles 177-189

Article 177 Usurpation of authority of official functions

What is important in 177 is any person who will serve the function of a public officer is liable for
usurpation. But under 177, that usurpation can be committed by a person that is a private individual. You
will also a counter usurpation of judicial, executive and legislative functions, but these usurpations will be
tackled when we take up crimes committed by public officers, noh? There may be usurpations committed
by public officers. So, if the usurpation is committed by a private individual, the law that is violated in this
Article 177. But if the usurpation is committed by a public officer, then the crime will either be usurpation
of legislative, executive or judicial functions which may be found in crimes committed by public officers.

Article 178 Using fictitious name and concealing true name

And then illegal use of insignia has been use of an alias. Use of an alias is not a crime per se. Because
nickname is an alias, the use of an alias, he is not liable. But what makes it a crime under 178 is that the
use of an alias is either for the purpose or purposes of any of those mentioned by the law, to abate
judgment, to cause an act over the public interest and to cause damage to other party, conceal the
commission of the crime to abate judgment or to cause damage. If you use an alias for the purposes of
any of the purposes mentioned in 178, then youll be liable to a violation of 178 by mere, but merely using
an alias is not a crime. It is not a crime, noh.

Article 179 Illegal use of uniforms or insignia

Then 179, although self-explanatory, the use of illegal use of insignia or uniform. Usually the acts occur to
those where uniforms are required for a public officer. Police, insignia of the police, military, yan.

Article 185 Machinations in public auctions

So, lets now go to 185, machination in a public auction. Theres nothing to explain. It is very clear from
the provision of 185 that when you try to manipulate a public auction, then you are liable for machination
of the public auction under 185.

4D 2007 43

Articles 186 to 189

Now, 186-189. I told you last time that this has been amended by Republic Act 8293, your law on
intellectual property, noh? More on commercial law under the Revised Penal Code.

Comprehensive Dangerous Drugs Act of 2002, Part 1

Article 190 Possession, preparation and use of prohibited drugs and maintenance of opium dens

Lets now go to 190 which has been amended by the Dangerous Drugs Law. Okay. Now, the present
dangerous Drugs Law is Republic Act 9165, noh, of the year 2002. Its the law that took effect in July 4,
2002. That is RA 9165 otherwise known as the Comprehensive Dangerous Drugs Law of 2002. Now
before that law, the law was then Republic Act 6425, noh. It used to be Republic Act 6425, otherwise
known as the Dangerous Drugs Law of 1972. Now, before we go to the salient features of 9165, we will
first know what were those that were provided under Republic Act 6425 so that we will understand the
amendments in 9165, okay?

Now, the Dangerous Drugs Law is by its very nature a malum prohibitum. It is a malum prohibitum
because mere violation of the law makes the offender criminally liable. Therefore, if it is a malum
prohibitum, then you do not apply the provisions of the Revised Penal Code as a rule, noh? As a rule, you
cannot appreciate the mitigating circumstances or those circumstances that may be available in crimes
punished under the Revised Penal Code. However, under the old law of Republic Act 6425, that is the old
one, not the present law, so that you will know the changes. Under the old law, Republic Act 6425, the
penalties then at that time were based on the quantity of the prohibited or regulated drugs and punished
with penalties under the Revised Penal Code. In other words, you have there a special law where the law
provides for penalties that are found in the Revised Penal Code. So, that was the reason why the
Supreme Court came out with a doctrine laid down in People versus Party of Simon, the People versus
Simon, that if the special law adopts the nomenclature of penalties under the Revised Penal Code, then
the provisions of the Revised Penal Code are applied as a general rule. So that under the old law, if one
pleads guilty under the old law, or one proves mitigating circumstances under the old law, then those
mitigating circumstances are appreciated because the penalties then are penalties under the Revised
Penal Code. Okay.

Now, under the present Republic Act 9165 under Section 98 of the Revised Code 9165, the law
specifically provides that the Revised Penal Code is not applicable to this law. So, there is a clear
declaration in this law that the Revised Penal Code is not applicable to this law. Except that if the offender
is a minor, however, minority pala hindi exempted, if the offender is a minor, then the penalty imposed by
law is the penalty of life imprisonment to death, then the penalty shall be reclusion perpetua to death. So,
that is found in Section 98, ano ha. There is expressed prohibition of the application of the Revised Penal
Code to this law that makes the Dangerous Drugs Law. But if the offender is a minor, however, if the
offender is a minor and the offense committed by the minor is a penalty of life imprisonment to death,
then the penalty to be imposed shall be the penalty of reclusion perpetua to death.

Okay, how do we explain that? Now, under your Republic Act 9344, noh, which is the Juvenile Delinquent
Welfare Law of 2006. The law says that there is only one minor that can now be liable, and the minor that
can be liable is if the age of the minor is between 15 and 18, hindi ba? Between 15 and 18 acting with
discernment. So, that is the only minor that can now be liable after that law. But if that minor is liable
because he acted with discernment, then the law in Article 89 of the Revised Penal, or Article 68, rather,
in Article 68 of the Revised Penal Code, he will be entitled to a privileged mitigating circumstance of
minority. So, it will then illustrate - you pay particular attention to the example that I will be giving.

When you look at your Section 11 of 9165, we explained Section 98. If you look at your Section 11 of
Republic Act 9165, the law penalizes illegal possession of dangerous drugs based on quantity. Based on

4D 2007 44
quantity. So therefore, regardless of quantity. So, if the lets take the case of shabu. Under Section 11, if
one is found in possession of shabu where the quantity is more than 50 grams, lets say 50 grams of
shabu, shabu yan, ha and then here comes a minor, 17-year-old boy, caught in act of possessing,
possessing ha, 51 grams of shabu and therefore violation of Section 11. The penalty of which is more
than 50 grams of shabu is life imprisonment to death or the penalty is life imprisonment to death, is it not?
Under Section 11, okay? Now, the question that will be asked is what is the effect of a minor committing
an offense under Section 11 where the penalty of life imprisonment to death is imposable? Now, if you
look at this, never mind Section 98 never mind Section 98 in the meantime. If the penalty of the offense
is life imprisonment to death, even if you want to appreciate a privileged mitigating circumstance of
minority, there is nowhere between lower to life imprisonment to death. Because as I told you in Article 61
before, only the penalties in the Revised Penal Code can be graduated. Do you follow? Even if you want
to appreciate the privileged mitigating circumstance, you cannot lower it by one degree because there is
no one degree lower to life imprisonment to death. Do you follow?

Now, what does Section 98 provide? Section 98 provides that if a minor commits an offense where the
penalty is life imprisonment to death, then the penalty to be imposed should be the penalty of reclusion
perpetua to death. Di ba? Nakalagay sa Section 98? If the penalty of the offense committed by the minor
is life imprisonment to death, then the penalty to be imposed shall be reclusion perpetua to death. So
what happens, therefore, in this particular case is that the penalty of life imprisonment to death, a penalty
under special law is converted into a penalty of reclusion perpetua to death, a penalty under the Revised
Penal Code, di ba? Is this the penalty under the Revised Penal Code? There is no such thing as life
imprisonment. But is this a penalty under the Revised Penal Code? Reclusion perpetua to death? Yes.
Therefore, the penalty is converted to a penalty under the Revised Penal Code.

Now, you now apply the doctrine laid down in People versus Simon. What does the doctrine say? That if
the offense is now punishable, the nomenclature of penalty under the Revised Penal Code, then the
provisions of the Revised Penal Code shall apply as a general rule. So what will they do now with this?
Because the penalty now is reclusion perpetua to death. If you now appreciate a privileged mitigating
circumstance of minority, is there one degree lower to reclusion perpetua to death? Yes. One degree
lower is reclusion temporal. That is the only instance where the Revised Penal Code is applicable, it is a
special law. That is the implication of Section 98.

Okay. Now, if you go further, if you remember your computation of penalties in your Article 64 of the
Revised Penal Code, if the penalty now is babae, what will you do?

Divide.

You divide into three, di ba? So, you divide into three. You have minimum, medium, and maximum.

No mitigating, no more mitigating, no more aggravating? Whats the penalty?

Medium.

Your authority is Article 64 of the Revised Penal Code. Where will you get your minimum penalties under
the Indeterminate Sentence Law? The Indeterminate Sentence Law, the minimum penalties shall be
taken in any of the penalty next lower or in between. Babae o lalaki?

Babae.

And then you divide into three. So, you have your minimum, medium, and maximum. So, your minimum
penalty will come from there. Your maximum penalty will come from here. Is it not? Okay. So, I convicted
the accused minor, applying the Indeterminate Sentence Law and appreciating a privileged mitigating
circumstance, I imposed a penalty of six years and one day to 15 years as the maximum. Six years and
one day of the minimum to 15 years as the maximum. Do you follow? Then the counsel of the accused
says, assuming that there is no suspension, just to explain. Do you now apply his full probation? Will you
approve a probation here?

4D 2007 45

Yes.

The maximum penalty is six years, eh. The minimum penalty that I imposed is six years and one day, eh.
The minimum penalty that I imposed is six years and one day, eh. Under the Probation Law, you can only
apply for probation where the penalty does not exceed six years. But the penalty that I imposed is six
years and one day to 15 years. Can he apply for probation? Yes, under Section 70. As long as hes a first
time minor offender, ha. Section 70, as long as he is a first time minor offender.

Now, but, be careful, as I said. I used an example of illegal possession because there may be penalties of
life imprisonment to death, but does not fall under the Section 11 like Section 5, that is drug pushing, drug
trafficking, ano, ha? Because under Section 24, if you look at your Section 24, there is a prohibition on
probation. Ang nakalagay sa Section 24, no probation for drug traffickers and drug pushers. So, that is
the prohibition on probation. No probation for drug traffickers or drug pushers.

Now, if my example here is that he was caught in the act of selling, Section 70 is not applicable to him.
Do you follow?

If my example is, lets say, drug trafficker, hes a drug trafficker, hes a drug pusher, seller, and so on, you
will still apply this computation because he is entitled to a privileged mitigating circumstance, but he
cannot apply for probation. Because under Section 24, probation is prohibited for drug traffickers or drug
pushers. Thats why I used illegal possession. Do you follow? If I used drug trafficking, you follow still this
computation. But he is not entitled to probation because under Section 24, probation is prohibited to drug
traffickers or drug pushers.

So, that is the only instance where the Revised Penal Code will apply as a general rule, because Section
19.

Yes?

If I read it correctly, RA 934 provides that

9344 yun.

Regarding on what time the offender may be, a minor offender may be entitled to probation after all the

If he fails. If he fails in the intervention program. Thats it. Yeah, thats why I said forget about 9344 in the
meantime, just to explain Section 19 and Section 17, but Im assuming that you assumed that he will
apply for probation only if he failed in the intervention program because he is entitled. We will come into
that under Section 66. I will correlate this with Section 66 later on. And then, also with Section 38 and
Section 42 of 9344, noh? The explanation, so that you will not it will no be complicated. My explanation
on Section 98 is only in so far as the application of the Revised Penal Code and the application of
probation law in the meantime.

Medyo malalim yung tanong, eh. Sobrang complex yun, eh. Okay. So, lets go back. What are the other
things that you should know?

Now, under the old law, there were two kinds of drugs under the old law. You have prohibited drugs and
regulated drugs so that decisions of the Supreme Court tell us that if you are in possession - lets say you
have two hands, of course. Your right hand is holding marijuana and then your left hand is holding the
shabu, caught at the same time, noh. So you where holding marijuana, then probably youre smoking the
marijuana, at the same time youre sniffing the shabu. Pwede yan eh! Kung gusto mo magpakamatay.
So, you are, under the old law, youre violating two offenses because under the old law, prohibited and
regulated drugs were treated separately. So, under the old law if you are caught in the act of possessing
marijuana, you were then punished under Section 8. Then if you are in possession of shabu, which is a
regulated drug, then you will be punished under Section 16. They were treated separately. But, now,

4D 2007 46
there is no more distinction between regulated or/and prohibited drugs. They now fall under one category,
which is now dangerous drugs. So, whether it is a marijuana, opium, or Indian hemp, or shabu, that will
be treated only as one offense because they now fall under one category, dangerous drugs.

Now, the other the thing is that under the old law, when you are caught in the act of selling, noh? Lets
say you were caught in the act of selling shabu, and then later on after you were arrested, you were
arrested by the policeman, and then you get one stick of marijuana from his pocket, then you will be liable
for two offenses under the old law. The one is selling or drug pushing under the old law in Section 15, and
then the marijuana taken from your possession, because that is a prohibited drug, Section 8, illegal
possession.

What happens now under the present law? Now, if this is under the present law, then you will have to
make a qualification. If what was found from the possession of the pusher after he was arrested for selling
is part of the sale; then he will only be liable for one offense. But, if the pot was found from his pocket
after he was caught selling the dangerous drugs, then he will be liable for two offenses because that is
not part of the sale. Lets say what was found from his pocket is part of the sale, one offense; if what is
found from his pocket is not part of the sale, then two offenses. One for selling under Section 5 of 9165;
the one that is found from his pocket is violation of Section 11 under 9165 as illegal possession.

Now, under - anyway, there is also another change, ano ha? I told you that there is no more distinction
between prohibited and regulated drugs, they fall under dangerous drugs. But they have added; the law
has added another group of drugs, which they call precursor or essential chemicals. Precursor or
essential chemicals. Those precursors or essential chemicals are those that are used for the production
of bi-products. Parang raw material yan, hindi production. So, if you produce shabu, the ingredients of the
shabu will be called precursor or essential chemicals. The shabu now will become the finished product
that is a dangerous drug. Now, why do I tell you this? Because under the old law, we do not find any
precursor. Now, what they did now here under Republic Act 9165 thats why if you read Section 4 or even
Section 5, or even Section 11, lets go to Section 4 as an example, or Section 5 na lang as an example,
and then Section 11 as an example. You read the specific violation of the law. Thats in Section 5, that is
the importation of dangerous drugs regardless of the quantity; the penalty is life imprisonment to death.

Now, for every Section, what is punished by law is not only the trafficker. Babasahin niyo don sa ano
babasahin niyo don sa provisions, meron ding mga ibat ibang offenders don. May financier; may coddler,
protector, may financier, may protector, may coddler, and then there is an illegal possession or sale of
precursor or essential chemical. Tingnan niyo sa law. So, do not be confused. When you read trafficking
under Section 5 for example, the law does not only penalize the act of trafficking, but it penalizes also the
financiers, the protectors, or the coddlers, and the settles of precursor or essential chemicals. Thats what
Im saying. You did not find that in the old law. Ang ginawa nila nagyon, lahat ng mag-participate sa
selling, o lahat ng mag-participate sa importation, lahat mag-participate sa illegal possession. Nakalagay
na lahat don. Okay, Ill give you an example of a protector or coddler so that you understand what Im
talking about.

Here comes a den. A den. When you operate a vice den, that means operating a drug den, where people
will go there and then sniff shabu or marijuana. Parang prostitution den, but this one is a drug den.
Parang sari-sari store for drugs. I think you read this in the papers, in Pasig, di ba? That is a clear
example of a drug den. The penalty of operating a drug den, for those who are operating a drug den is
the penalty of life imprisonment to death. Those who visit the den or visitors are likewise liable for
violating the law as visitors of the vice den. The two is likewise are liable being employees of a vice den.
The policemen or the public officials who protect or coddle the operators of a vice den are likewise liable
as protector or coddlers. Thats what I mean by protectors or coddlers. Where they will be - of course, the
penalty is lower than the penalty of operators because operators of a vice den, the penalty is life
imprisonment to death, eh. Coddlers can be penalized with the penalty of 12 years and one day to 20
years. Ha? Yon.

This is a Ill give you another example. So that you may think that this is a crime of direct bribery that we
will study later on. Okay.

4D 2007 47

Supposing the drug pusher is arrested, di ba? Lets say one kilo of shabu. The policemen did not
anymore tried the case against him because the agreement is that they will divide the one kilo of shabu.
Sabi nun, okay. Hindi ka na kakasuhan. You get the half kilo of shabu, and then half of that will be mine,
sabi ng pulis. So that gagamitin niya ring pang negosiyo ung kalahati, hindi ba? Of course, the one the
pusher is liable for drug pushing because he was caught in the act of selling. But, what about the liability
of the policeman? He cannot be liable for bribery because he did not receive money in exchange for not
prosecuting him or not for arresting him. He is liable as a protector or a coddler. That is the meaning of a
protector or coddler. But, the fiscal does not prosecute him, then the crime that is committed as qualified
bribery under Article 211 of the same which we will study later on. Im just only talking about who is the
protector or the coddler, ha? Okay. Now, so, you be careful, therefore, with those provisions.
Article 8 Possession or use of prohibited drugs

Now, the other thing that youll have to remember is that in your study of your Article 8 of the Revised
Penal Code, its Article 8, di ba? Proposal and conspiracy to commit a crime is not a crime, di ba? Now,
this special law recognizes attempt and conspiracy, although this is a malum prohibitum under Section
26. Attempt and conspiracy. Okay, what is the implication of attempt and conspiracy?

Now, the situation is like this. Probably, I referred to entrapment or buy-bust operations, di ba? You know
what is entrapment or buy-bust operation. So, here comes a group of policemen receiving an information
that Mr. A is a drug pusher. What the policemen will do is that they will form a buy-bust team to entrap the
seller. So, they will pick one from them as a pusher-buyer. They will give him the money to buy, di ba?
But usually, policemen, when they present a case on drug pushing, in most cases, they will make it
appear that the money could no longer be found, because once the money is submitted to the courts,
they believe that the money could no longer be returned to them because thats the part of the evidence.
So, they will concoct a story that the money was not recovered. But, you know, in under Section 5 of
Republic Act 9165, if you read Section 5 of 9165, what is punished there is not only sale, but delivery,
transport, carrying away, and sale.

Therefore, the doctrine is that the buy-bust money is not essential in proving violation of drug trafficking or
drug pushing under Section 5. Because what is covered by Section 5 is not only sale, but also includes
delivery or transport, okay. Di ba? Thats why the Supreme Court is very clear on this matter. Even if the
buy bust is money is not presented before the court, you could still be convicted of violation of Section 5
because the money is not indispensable. Okay.

The other doctrine is that when you can not prove sale in some instances when you can not prove sale,
then the offender will now be liable for violation of Section 11 under illegal possession. Because illegal
possession is necessarily included in sale. Do you follow? Illegal possession is necessarily included in
sale. So, if he can not prove the elements of delivery, transport or sale, then the other doctrine is that the
person can still be liable for illegal possession because illegal possession is necessarily included in the
sale, transport or delivery.

So, what can the policeman do? Therefore, they will come up with a story that the money was lost in the
process or they will come up with a story like this. So, before the seller could give the shabu to the buyer,
and before the buyer could give the money to the seller, the seller sensed that the buyer is a policeman
and ran away. Then they caught up with him, they were able to take hold of the shabu in his possession,
but in the commotion, the money could no longer be found. Thats what they do. If you try to analyze the
facts, there is no exchange although what they have filed is drug pushing because that is they want to
prove in their entrapment. So, if there is no transfer of the thing, subject matter of the sale, as in ordinary
sale and then the consideration likewise is not transferred to the seller, then you can not convict him for
selling, transporting or delivering because there was no actual delivery. So, in that particular instance, the
offense that is committed is illegal possession because the shabu was taken from the possession of the
offender, that is Section 11. But, yun ang problema don. But if in the facts of the case, it will show that
there is intent to sell, intent to deliver, or intent to transport, then the offense will no longer be illegal
possession under Section 11, it will now be Section - what? 26. Okay.


4D 2007 48
Example. So you try to add something to the facts, so its still - for example, noh. There was already
delivery, hindi ba? There is already delivery, but before it could be held by the policemen, he ran away. In
other words, as long as there is an intent to sell, transport, or deliver, noh, kasi yung example ko kanina
walang pang dini-deliver, hindi pa nilalabas yung kuwarta, hindi pa nilalabas yung shabu, so there is he
now and senses that he is a policeman, then he ran away, but he was caught up by the policemen and
then found from his possession is the shabu. But if the facts will now show that he is already - Lets say
now the policeman is giving the money, di ba? And then the seller now is giving the shabu, then all of a
sudden he ran away, although the money was not yet taken by the seller and the shabu was not yet given
to the buyer. But from those facts, there is already intent to sale, hindi ba? Nagbabayad na eh, dini-
deliver na, eh, so meron nang intent to sell or delivery or transport, then the law that is violated is Section
26 under Republic Act 9165 which provides that attempt and conspiracy is punishable with the same
penalty as if the act is consummated. Nakalagay sa Section 26, you read Section 26. Therefore, there is
no difference as so far as the penalty is concerned if the act is consummated selling, or transporting, or
delivering because under Section 5, if it is a consummated drug pushing, then the penalty is life
imprisonment to death. Now, under Section 26, attempt and conspiracy, marami yan, ha, but you know, I
am just giving you one example. Sell, transport, deliver, maintenance of a den, manufacture, importation,
maintenance of a den, the penalty is the same as if the offense in consummated. The penalty is still life
imprisonment to death. But that Section 26 will only be applicable if, as I said, you have already proved
an intent to sell, intent to deliver or transport. So, but if there is no intent to sell yet, then the offense that
is committed is violation of Section 11, illegal possession. That is a new provision in Section 26. Kaya
walang lusot yung mga drug pushers, eh.

The other one, as Ive told you last time, noh, when it comes to violation of 9165 which is very different
from illegal possession of firearms, the corpus delicti in violation of 9165 must be proved with certainty.
Must be proved with certainty. That is why you have to prove the chain of custody of this shabu taken
from the possession of the accused, and that shabu taken from the possession of the accused must be
presented before the court. Unlike in illegal possession of firearm, di mo kinakailangan i-presenta sa
husgado yan, eh. Facts or circumstances and evidence will show that the gun was unlicensed, even if it
was not presented before the court, pwede kang ma-convict sa illegal possession of firearm, but not in
illegal possession of shabu or dangerous drugs, that must be presented before the court because that is
part of the corpus delicti.

The usual problems, of course, I have not tried, probably, cases about this, but the usual problems there
is like this, ano ha. How do you establish the corpus delicti of a shabu? Now, usually offenses are
committed outside of police precincts, di ba? In places outside of police precincts, siyempre. If there is
one violating dangerous drugs inside the police precinct, its the policeman. Siya ang nag-shashabu, di
ba? So, what they usually do is that, so that we can establish the chain of custody, the usual problems
there would be: If you are arrested somewhere in Rockwell, noh, then the policeman who arrested that
person in Rockwell must now make his markings on the one that is taken from the possession. Kasi ang
ginagawa ng pulis, huli mo don sa Rockwell, they will not make any marking, they will go to the police
precinct and then turn over to the investigator. Now, if that was not marked and then the investigator will
be the one to mark that specimen, that is not the corpus delicti. Doubtful. They say that the chain of
custody should be established with certainty that that shabu was the one that was taken from the
procession of the offender.

So, if the shabu was taken in Rockwell that has to already be established, that its the same one. So,
what they do is that they should now mark the exhibit, mark the specimen, and then bring that to the
investigator, that again will be marked, and then that specimen will be brought to the chemist, that again
will have to be determined that that was the one that was the subject matter of the examination and then
later on, when it is brought to the court, that is the same evidence that was taken from the possession of
the accused. If there is a hiatus on the chain of custody, the accused will be acquitted because the corpus
delicti must be established with certainty. Pag merong doubt sa chain of custody, you can put up doubt
that that is not the same shabu that was taken from the possession of the offender, the accused will be
acquitted. Ganon ka i-strikto ang dangerous drugs in establishing the corpus delicti in violation of the
dangerous drugs.


4D 2007 49
Okay. Now, lets go to the other areas. Siguro, well jump to anyway, in Section 4, the offense there
violated is importation. So you know what is importation, if it is committed by a diplomatic member of the
diplomatic board, taking advantage of his privileges, then the maximum penalty of death shall be imposed
and those who are punished likewise are the financiers or coddlers. Then you go to Section 5, thats
where we have taken up pushing or drug trafficking, sale, or delivery of which will include also precursors
and then likewise penalizes the financiers and the protectors and the coddlers. Okay.

Now, in the meantime will go to Section 15 in relation to Section 12 and Section 11. Now the other
Section, Section 6 maintenance of a den, manufacture, manufacture of drugs, maintenance of a den,
visitors of a den, employees of a den. Self-explanatory yan, walang masyadong problema. Whos the
maintenor of a den? Eh di yung nagma-maintain ng drug den. Who are visitors? Then those who go to a
den. Visitors. Who are the employees? The employees. Anu pang ie-explain natin dyan? Kung sino yung
empleyado, eh di yung mga empleyado roon. Then manufacturer? The one who manufacture drugs,
thats also punishable by life imprisonment po yan, eh.

Okay. Now, we will go to the more important one. Lets go to Section 15, 11, and 12. The problem areas
are here. Of course, the other problem areas, I have already told you, ano ha? The other problem areas
are Section 15, Section 11, and Section 12.

Now, you go to Section 15 so that you can follow me. Under Section 15, one is liable for illegal use, that is
illegal use, ha? What is use? Gumagamit. Illegal use of dangerous drugs for the first time is punishable by
six months rehabilitation. So, one who is caught in the act of using dangerous drugs after a confirmatory
test, nakalagay don, after a confirmatory test is punishable by six months rehabilitation. If you are found
for the second time with the penalty, there will now be a penalty of imprisonment. I think its 12 years and
one week to 20 years, okay.

So, the situation therefore is like this. If you are caught using or youre smoking marijuana or you are
sniffing shabu, shabu na lang. How do you commit the crime of, how to you commit or how do you use
shabu? Siyempre, you have a tooter, may tooter yan, eh. May tooter, may aluminum foil, may burner at
saka may lighter. So what they do is that they will get a[laughter]

walang nasabi, biglang explain, noh? Addict yata si sir, eh. [laughter]

So, just to illustrate it ba. They will get take aluminum foil and then there is a burner and then there is a
tooter. And then they will light the burner and then smoke will be emitting on top of the aluminum foil.
Then you will place the tooter, and then you start sniffing it. Finally. [laughter]

Kayo lang ang nakakaalam nyan. Then probably after 30 minutes you will already be through, then you
we will say, heaven. Heaven. Now, if the policeman caught me in the act of sniffing shabu, I am not yet
liable, I am not liable because the law says after a confirmatory test, nakalagay don, after a confirmatory
test. You know what is a confirmatory test? Confirmatory test is the second test. There is an initial test
and that initial test must be confirmed, that is the meaning of a confirmatory test. So, if you are caught
therefore, then the policemen will probably request you to urinate ha. Hoy, mag-urinate ka, then subject
the urine to laboratory test. If that is positive, then that first findings will be confirmed by another test, that
is the meaning of a confirmatory test. You can not be liable even the policeman saw you because the law
requires after a confirmatory test. I do not know why we included that phrase, confirmatory test.

Sir, but what the (unintelligible) requires is he will definitely be

Were going to that, noh? Kaya nga sabi ko Section 11, 12 and 15, okay.

Now, and then you look at the last part of Section 15. Nakalagay don, if however the person caught in the
act of using shabu, a quantity, a quantity of dangerous drugs is found from his possession, then he will be
liable for violation of Section11. Then that is illegal possession. So, the example you can go further with
the example.


4D 2007 50
So, I am now caught in the act of using. Apart from any place where I have control, noh, even one gram
or one gram of shabu was found in my possession under my control, nandun sa table lang, then the use
will now be absorbed by Section 11. So, you will now be liable for violation of Section 11 because the
quantity will now justify the offense to this violation of Section 11 and therefore, you are no longer liable
for use. Now, youre question is that because you are using, tapos meron pang (unintelligible). Because
you know, what they say is that the Dangerous Drugs Law of 2002 is more favorable to the user. User is
not considered as a criminal. He is rather a victim of the drug in the case. Thats why to prevent
policemen from taking advantage of those who are caught, they have to be subjected to a confirmatory
test because if they are found positive under a confirmatory test, there is no penalty of imprisonment.
They will only go on rehabilitation and after rehabilitation, they will already be released. Yon ang purpose
nyan.

The problem, however is complicated by Section 12. Kasi nakalagay sa Section 12, illegal possession of
drug paraphernalia is punishable by six months and one day to four years, di ba? Tama ba? Six months
and one day to four years. You compare the penalty under Section 15 for the first offense, the first
offense is only six months rehabilitation, eh. But ang drug paraphernalia is punished by six months and
one day to four years imprisonment. Then if you look at the second sentence of Section 12, illegal
possession of drug paraphernalia, nakalagay dun, ha, is a prima facie evidence of use under Section 15.
Section 12 is a prima facie evidence of violation of Section 15, but you can not use shabu without drug
paraphernalia, eh. Kinakain ba yung shabu? Mahal yan pag kinain mo yan, ubos ang kwarta mo, eh.
Baka pati Rockwell ibebenta mo nyan. Mahal yan, eh. So, you did you get my example? I was caught in
the act of using but Im also using drug paraphernalia because I can not use shabu without any drug
paraphernalia. So what will be the situation? You can not be liable for violation of Section 12, illegal
possession of drug paraphernalia, but instead you will be violating Section 15 because illegal possession
of drug paraphernalia is a prima facie evidence of use. So the use now will absorb the drug paraphernalia
because you can not really use shabu without drug paraphernalia, that is the meaning. But if you are not
using any shabu but merely got caught in possession of drug paraphernalia, then you are liable under
Section 12. Kaya mas maganda pa kung gamitin mo na lang.

[laughter]

Section 11 absorbs use. Use absorbs illegal use by illegal possession of drug paraphernalia. But if in the
problem is that a quantity likewise is found from your possession, then the quantity will absorb everything.
You will only be liable for violation of Section 11. Lets say gumamit ako, di ba? Gumamit ako, so Im
violating use at the same time, Im violating illegal possession. Now, if Im only using it then the illegal
possession of drug paraphernalia will now be absorbed in the use because you can not commit a crime of
using without drug paraphernalia. But, however, if I am caught now, they found two grams of shabu in the
table, then that two grams of shabu will now absorb the use. Then you will now be liable for violation of
Section 11, illegal possession. So the illegal possession will absorb everything, ha, but thats why if you
are caught in the act of possessing drug paraphernalia, the penalty is six months and one day to four
years, eh. Gamitin mo na lang. Six months in rehabilitation pa. Yes?

For the case that even if the offender failed in the confirmatory test but he was caught in the act of
possessing, will he be liable?

Okay, so your problem is use, di ba? And then the confirmatory test is positive, you mean?

If he failed it.

What do you mean failed, negative? He did not use it, then he can not be liable for use, but he can be
liable for illegal possession because that will now be a separate offense.

Sir, if the accused refuses to have the confirmatory test?

But he can not refuse. He can not impose once it is self-incriminatory.


4D 2007 51
But what will you do as to possession of drugs?

Delikado yan. If the one caught in the act of using refuses to undergo confirmatory test, plantingan ka ng
pulis. Plantingan ka ng pulis nyan. Kasi, Hoy, ayaw mo ng confirmatory a, ayaw mo, ha. O sige,
plantingan ka ng one gram. Patay ka, mas mahaba ang sentence nun. Kaya nga useless ung Section 11,
eh. In fact, thats what they are doing. Because its very hard to subject a person arrested in the act of
using and then subjecting to a confirmatory test. Ma-trabaho sa pulis yan, eh. Huhulihin mo, dadalhin ka
sa Camp Crame or sa chemist, eh. It will take time. Siya pa magbayad ng pamasahe at lahat pa. So what
do you think if they will not charge you with illegal use? What will they charge you? Possession na lang.
Walang gastos. Eh, nagbibihis pa lang si pulis sa umaga eh, nag-iisip na kung saan kakain, eh. Kung
saan magmemeryenda, san iinom ng beer sa gabi, eh. Tapos, confirmatory test pa? Maniwala ka diyan.
Kaya sabi ko nga kay Senator Barbers nun, eh, kako, Manong, theres something with your rule. Galing
sa akin, eh. Afterwards, he died. Because hes the sponsor, eh. Yes?

Is it possible that an offender will be liable in Section 12 but then he also failed the confirmatory test?

Now, problem there is that under Section 12, what the law still provides is that that is a prima facie
evidence of use, ano ha? But when youre already in possession of drug paraphernalia, you will always
be become liable for illegal possession of drug paraphernalia. Probably, what the accused will do is to put
up in defense that he intended to use it so that he can be absorbed in illegal use. But if the policeman
caught you in the act of possessing drug paraphernalia, it is already a violation in itself under Section 12.
Ang sinasabi lang diyan prima facie evidence because he might have used drugs when he was caught in
the act of possessing. Kaya parang its a warning to the policeman that if he is using it, do not charge him
with illegal possession. So, ang nangyayari dyan, if you are the accused, I mean the lawyer, probably I
can put up a defense that he was using them so that I can get the six months rehabilitation. Kaya sinabi
don prima facie evidence. If youre the accuseds lawyer, then you can not put up a defense except that
you are caught in the act, eh. Pano mo idedepensa yon? Mamimili ka lang ng pulis na ia-assign mo dyan,
eh. So the only defense that you can put up is that he was using it so that he can escape with the penalty
of six months rehabilitation. Yan. Thats true. Kasi loko ang mga pulis, eh. Loko, eh.

Ang problema kasi under the law, even under the old law, pinaghiwalay-hiwalay nila ang provisions na
yon, eh. Yung illegal possession under Section 11 also includes illegal use under Section 15 under the
old law, eh. Pinaghiwalay nila kasi, eh, thinking it will help the users but rather it is helping the policeman
increase their income. Bakit? Eh, kung user lang yan, eh, eh, hindi ka magbigay. Ah, wala. They will
convert it into illegal possession nyan. You go around the court rules sa Metro Manila. Conduct ka ng
survey kung sino ang nag-charge ng illegal use. Baka sa 100, iisa lang. Sa 100 cases of drugs, iisa lang
ang na-charge ng illegal use. Dagdag sa trabaho yan eh, pulis pa? Di bale kung military, they do not
arrest naman, eh. Why do they not arrest? Iba naman ang hinahanap, eh. Abu Sayyaf, eh. Yes, maam?

In the information charges possession but is actually a violation of another provision, is the accused
entitled to an acquittal?

No. But - you give me an example.

Like your example a while ago, illegal possession but it is actually selling

No. No, it is not. As long as the allegations in the information will include possession, wala. It will not
violate any - it does not violate the right of the accused in the rules in criminal procedure. di ba? You can
be convicted of a crime not necessarily charged with the provision as long as it is necessarily included in
the crime charged. Di ba, gaya ng murder. Like this one also, if you are charged with illegal sale. Under
Section 5, you can still be convicted of illegal possession because possession is necessarily included in
the sale. You can not sell without possessing it. Ganon din ang principle. So it will depend on whether or
not that is a crime necessarily included in the crime charged in the information.

Justice, if you were to be in a situation where it would fall specifically under illegal use so the user must
not have left any trace of drugs around the area of his

4D 2007 52

Of course. Under his control.

Under his control.

You will apply the doctrine your rule your rule on regular procedure, di ba? Search without a warrant.
You can be searched, hindi ba? Even if there is no warrant of arrest as long as the search arises from a
lawful arrest, hindi ba? And, therefore, you can be searched not only of the things in your possession but
things with your control. Di ba ganun? I do not know if Im correct. Di ba? Within your control so that
means that does not only come from your body but in the place where you have control. Ano yung place
where there is control? Eh, dun sa table. Yung sa pinaglagyan niya, andun. You have control in that. That
can still be admissible against him. Well, thats the situation in Section 11.

Okay, lets go further. Now, under Section 24, I repeat, ano ha. Walang probation, prohibited. But the one,
I might forget it, the one that I told you last time, we jumped to Section 29. There are many provisions yet
that we are going to study. But Im going baka makalimutan ko, eh. So you go to Section 29. Planting of
evidence. Planting of evidence is punishable by penalty of death. Tingan nyo diyan. Section 29. But if you
plant any other evidence in the crime, in any other crime, then the law that is violated is Article 363 of the
Revised Penal Code. Incriminatory machination, ha? Its not malicious persecution. Yung malicious
prosecution is you - it might lead to a crime of perjury, eh. Malicious persecution. Pag malicious
persecution, its usually a damage suit. Kung perjury, its a criminal case. For example, here comes a
witness, noh. He is a perjured witness. I tell him to execute an affidavit affirming that I was not in the
place of the commission of the crime but knowing that I was there, that I was the one who committed the
crime, so you execute an affidavit so that will be exonerated. So that penalty is perjury, di ba? Okay. On
the other hand, if I use a witness and then implicate him, ha, implicate him as the one who committed the
crime and then the statement is likewise a perjured statement, making it appear that he committed the
crime when in fact it is not. Therefore, that will also become perjury because it is a malicious falseration of
facts under oath, di ba?

Now, if however, what we did is that we planted an evidence, like a firearm, so that he can be charged
with illegal possession of firearm, that can not be perjury because there is no false statement, then that
will now become a crime of incriminatory machination under Article 363. Now, if the charge, however, is
violation of Republic Act 9165, I gave him a gun. I mean I put - I planted a shabu in order that he can be
liable, then the offense that is punishable is violation of Section 29, planting of evidence where the
penalty is death. Penalty yan, penalty of death for planting of evidence. Do you follow? What about
malicious prosecution? Ano yung malicious prosecution? For purposes of recovery of damages lang yan.

Okay, now lets go back to the other provisions. Now, you look at also Section 33. The provision there is
long but we will try to simplify the provision. You know, this has to be connected with Section 26. Now, 26
and 33 can be correlated with one another. Why did Congress come up with these two provisions? Its
like this. When you say malum prohibitum, the principle is that you can only be liable when you are
caught in the act of violating it, hindi ba? Mere violation of the law makes the offender criminally liable.
Therefore, you can not make the source of the drugs liable because the drug pushers or the drug lord is
sleeping in his house. So, if I am the seller, so the drug lord says, okay. The shabu came from the drug
lord living in a high rise condominium. Then he has the sellers. Yung mga bidder man nya. And then
here comes now a small time seller. But those drugs come from the drug lord. Now, if that seller now is
caught in the act of selling, then who will be liable?

The seller.

The one who is caught the one who is caught selling because that is the essence of malum prohibitum,
ha. The one who is committing the act is the one liable under the principle of malum prohibitum. So, the
brainers of the law adopted the characteristics of mala in se into the law, thats why you have conspiracy.
Attempt and conspiracy and thats why you have Section 33. That if you are charged with offenses where
the penalties are light offense, Section 7 illegal prescription, illegal possession of drug paraphernalia,
illegal use; then that victim may be utilized as a witness by the government in order to charge the sources

4D 2007 53
of these drugs or those who are in the business of importing under Section 4, in the business of trafficking
under Section 5, in the business of manufacturing, in the business of maintaining a den, in the business
of cultivating. All of those can now be liable by utilizing the person arrested as long as the person arrested
is not charged with a higher offense, specified sa Section 33, eh. Yung mga light offense lang yan. Illegal
prescription, illegal use, yung paraphernalia, di ba, or visitors of a den or employees of a den. So, they
can be now utilized as witnesses against those, even - even, nakalagay sa Section 33. Even if you do not
comply with the requirements of the discharge of an accused under your rules of criminal procedure. Kasi
yang sa rules of criminal procedure, in your discharge of an accused in your rule 119, you can only
discharge the accused when the information is already filed against the accused, hindi ba? How do you
discharge an accused under your rules of criminal procedure in rule 119? Anong gagawin mo dun? File-
an mo muna ng kaso, hindi ba?

You file a case against all the accused, then if the evidence of the prosecution, not actually weak, but the
evidence of the prosecution needs one of the accused to be discharged, then you file a motion to
discharge with the same criminal proceedings, and then you convince the court that all the essential
elements of a discharge of accused are present, he does not appear to be the most guilty, that the
evidence can be corroborated by other pieces of evidence, he should have not been charged as
convicted of a crime involving moral turpitude, di ba? Then you have to prove. Okay.

Under Section 33, you do not need that. Even before the filing of the case, you can already use the
person arrested as a witness to determine who are the sources, who are those involved in drug
trafficking, in drug manufacturing, in drug transporting, or even in importing. Do you follow? You correlate
that with Section 26. Anong sinasabi sa Section 26? Conspiracy. A conspiracy allowed in malum
prohibitum. Why? The follow this from the Narcotics Law of United States of America eh, di ba? Okay.

Another example, so I was caught in the act of selling to him, di ba? Now, how will you hold the source of
the drugs who is found near an Islam state in China? If Im involved in the act of selling, di ba? Because I
am the one violating the law. Under the principle of conspiracy. If you can prove that the drugs came from
that man from China or any place in the world, he can be indicted under the principle of conspiracy. But of
course, the other question will be how can you establish conspiracy? Thats another thing.
But what Im saying is that you can now charge the sources of the drugs under the principle of
conspiracy. Yun ang purpose na inilagay yung Section 26 at saka Section 33, to hold the sources of
trafficking of drugs likewise liable either under Section 33 or under Section 26. Kaya magandang
provision yan, but ngayon wala pa, eh.

Paano yung territorial provision?

Well, the problem there is whether or not the law can be applied here. The crime is committed here, eh.
But, whether or not you can bring it here in the Philippines, thats another thing.

If the delivery was made in China?

Ah, hindi puwede dito yon. Delivery made in China?

But if the middle man is here based on report, that the

He can be indicted here under the principle of conspiracy because the crime was committed here. That is
the effect of Section 33 and Section 26. Thats a good law, but I have yet to hear others charged with this
kind of conspiracy or under Section - wala pa, wala pa akong naririnig. Its a good law, but very hard. Its
very hard to prove conspiracy. Alam naman ninyo yan eh. You prove conspiracy as if there is the crime,
so therefore, prove conspiracy with proof beyond reasonable doubt, hind ba? Yes?

Sir, I was going to ask about proving the conspiracy part, sir, because di ba, malum prohibitum, mahirap.

We have to prove conspiracy. But probably the provisions there are deterrent, hindi ba? Deterrent parati.
So - anyway. But lets go further.

4D 2007 54

Sir, it says here that anyone who voluntarily submits to rehabilitation then shall be exempted from
prosecution and punishment. Sir, makikipag-areglo ka na lang ba sa kanila?

Thats a good question, because they might raise that as an issue in Section 33, eh. You might be
violating the right of the accused. The one who is arrested, like for example of illegal use, then you
compel him now to testify against him, he not assisted by counsel. That can be used as a - ano ehthat
may be used to deflect the purpose of Section 33.

So, my only concern is that, that is a rule, whether or not it can be admissible, thats another thing. Its up
to you. But, as long as the law says that, it will make you explain. Magiging problema talaga yan.
Because once you get the statement of a person arrested, then you will apply now the rules, the rules of
criminal procedure or cal in the Constitution now, that might become an extrajudicial confession, eh.
Considered yan admitting eh. Thats another thing.

Alam mo kasi, pinattern nila sa Amerika yan, eh. You know that in America, mas strict ang rules natin,
ang laws natin. Ang due process, mas strict tayo dito kaysa Amerika. Dun sa Amerika, may search
warrant ka, a search warrant is issued against the individual. That individual is arrested and then if he will
cooperate, then the policeman and the district attorney can already bargain with the person arrested, and
then he will give his statement implicating the source, admissible yan. Sa atin hindi puwede eh. Oo,
ganun sa Amerika kaya ang dali nilang nakakahuli sila even if the drug ports from Panama, in other
Columbia eh, na-iindict nila doon, eh because of what? Eh tayo, masyado tayong pasikat, eh. Ano ha?
Sobra sobra eh, hindi ba?

Kaya, probably they only place that as a deterrence, but actually if you get the statement of a person
arrested, they might question the legality of the statement as violation of extrajudicial confession or they
may invoke self incrimination. Maraming objections diyan eh, but what I am always saying is that this is
better than ordinary crimes. Because if you want to discharge an accused in a crime committed as a
whole crime, then you have to follow the requirements under the rules.

Ang mangyayari diyan i-charge mo muna. Like in the case of Larranaga. Do you know the case of
Larranaga? Yong dalawang magkapatid na nirape? The case should not have progressed if not for the
discharge of one of the accused, Rosia. Mahirap i-prove yun, eh. Iyong dalawang magkapatid na
beauties from Cebu? Iyong Astar family, Larranaga, sinakay sa sasakyan, they were brought to a far
place. They were raped, and one of the bodies was found from the edge of the mountain. The other body
was never found. They were questioning the decision of the court, that they did not believe the testimony
of one of the accused kasi he was in Quezon City learning how to cook, di ba? Oo, alam ko yun.

Yung Chiong sisters. Merong magandang case dun sa motion to discharge an accused, eh. Because the
one who was discharged was convicted of larceny in Mississippi. So, he was discharged. He is not the
most guilty. The problem is he admitted that he was one of those who abducted the women. So, ang sabi
ng Supreme Court, he does not appear to be the most guilty. Why? Because the crime is not only illegal
detention, but likewise with rape and homicide.

So, number two, of course his testimony really was very crucial and therefore can be corroborated. Ang
problema dun yung conviction niya. There was a conviction of larceny. Robbery yan eh, or stealing. Kaya
lang, wala silang crime of theft or robbery, they call it larceny yata, eh, di ba, in other states. He was
convicted there, then they questioned why he should discharged. Sabi ng Supreme Court, he can still be
discharged even if he has been convicted of a crime involving moral turpitude. What is more important is
the credibility of his testimony. So, if the testimony is credible, that is more important that hell be
convicted of a crime involving moral turpitude.

Ganyan din ang mga - kaya nga ang nilagay sa Section 33, you will not anymore go to this process of an
accused being discharged during the trial because the process is harder. Kasi ang process sa rule ng
criminal procedure, you present the witnesses, he will submit an affidavit, then after submitting the

4D 2007 55
affidavit, youll present him as a witness, he will be subjected to a cross examination. If the court is not
convinced, denied yung discharge. If the court is convinced, then discharge him.

But, under this 33, even before you go to trial, puwede nang i-exclude that person who gave that
statement in order for the arrest of the source of the drugs under Section 33. Nakalagay diyan, hindi ba?
So, there is no need of filing a motion to discharge. In the first place, he is not being charged as a drug
pusher or trafficker. Ganun yon. Thats why the law says, not withstanding the provisions of the rules of
criminal procedure on discharge of the accused, the person arrested for violation, yan, of Section 7 yata
or Section 11, probably Section 12 or 15 and so on. Illegal prescription of drugs or authorized robber, he
can be used as a state witness. Yan ang implication ng Section 33.
Comprehensive Dangerous Drugs Act, Part 2

Just a reminder that under the Dangerous Drugs Law, as I told you last time, there is no more distinction
between a prohibited drugs and regulated drugs. It falls under the category of Dangerous Drugs. Now,
what are the important provisions, ano ha? No, I think I discussed already about Section 15 of the
Dangerous Drugs that is illegal use, hindi ba? Thats why I told you about illegal use.

There is a question in the bar exam. That question is crazy. The question was 247. Under 247, when
you surprise your husband or your wife in the act of sexual intercourse, then you kill or injure one or both
of them, then the penalty is destierro. I told the examinees that the penalty of destierro in 247 is not
actually a penalty because there is no crime committed in 247. Okay yun. But the question is, because
he was penalized with the penalty of destierro, he entered a locality violating the penalty of destierro.

So, destierro is prohibition to enter between the radius of 250 kilometers to 50 kilometers. He entered.
Then later on, he was caught in the act of using dangerous dangerous drugs. And the question is: Is he
entitled to the indeterminate sentence law? Ang layo pa nun. The question is, was caught in the act of
using dangerous drugs. Is he entitled to indeterminate sentence law? Yet, what was the penalty, di ba?

If you want to know if the indeterminate sentence law is applicable to a sentence offense or crime, then
he should know what is the specific penalty for that. Because if the penalty is straight or the penalty is
death, there is no need for indeterminate sentence law. Eh ang penalty ng illegal use is six months
rehabilitation for this person. So, youre not entitled to the indeterminate sentence law because the
penalty is not imprisonment for the first offense. It is only six months of rehabilitation. But if you ask that
question to the examinees, then they have to memorize the penalty. I think what the examiner was
thinking is that, better or not indeterminate sentence law is applicable to the Dangerous Drugs Law. I
think that is the thinking of the examiner. That is the thinking of the examiner, of course, yes.
Indeterminate sentence law is applicable to the Dangerous Drugs Law. Because you have to apply the
Indeterminate Sentence Law on the authority to the Revised Penal Code or have special, 'di ba? Okay.

So, lets go to the other provisions under Section 4. I think we discussed already Section 4, the
Importation or Quotation of Dangerous Drugs under Section 4. I told you that in that definition, in that
offense, there are actually, I think offenses that maybe punishable. So, you have the importation of
dangerous drugs, the importation of precursor, then you have the financier, then you have the protector.

Then you go to Section 5. Likewise, you have the seller, the pusher, then you have the financier, then
you have the protector or coddler, then you have the seller of precursor or chemicals.

I think I also discussed about Section 26, di ba? Did I discuss Section 26, Attempt and Conspiracy, di
ba? This is a special rule but there's a provision on attempt or conspiracy to only of several instances
where this provision maybe applicable, di ba? That when you do not prove all the essential elements of
drug pushing. But there is already intent to sell then you know, that this violated is not drug pushing. The
law that is violated in Section 26, attempt and conspiracy to sell,'di ba? If the same is not consummate,
then you cannot be liable for drug pushing but you may be liable for Attempted Conspiracy to Sell.

I told you already about Section 29, ano, Planting of Evidence? Did I not tell you? If you plant the
evidence, lets say dangerous drugs, in order that one may be liable, then the law that is violated is

4D 2007 56
Section 29, Planting of Evidence, di ba? Any other evidence in order to incriminate one with the
commission of a crime, then the crime is Article 353, di ba? Sabi ko, incriminatory machinations. Okay.
So, I told you that.

Then you have also the violations, of course, maintenance of the den. I also told you, di ba? In
maintenance of the den, if you are a maintainer of a den, then the penalty is life imprisonment to death.
Those who visit the den are liable as visitors for a den. Employees of den are likewise liable for the
offense of employees of a den. Those who protect the operation with them are liable for the crime of
protectors or coddlers with the maintenance of a den. And then those who are caught in the act of using
will be liable for the crime of illegal use under Section 15.
There was one of the census asked in the bar exams last Sunday. And the question was: There was a
mahjong session, then join the mahjong session, I think when he went to a mahjong session, thinking that
it was a mahjong session, people were caught in the act of using. So the problem there is that, yung mga
students, baka nagkamali sila. The question uses the word session, eh. Under the new law, there is no
crime of pot session now. So sabi ko sa kanila, if that is the question asked, do not answer directly the
problem as pot session. There is no pot session under the new law. Unlike the old law, when persons
are caught in the act of using dangerous drugs or under that regulated drug, the crime under the old law
is pot session under Section 27. But if that person now is punished under this present law, then he will be
liable individually for the offense of illegal use under Section 15, wala ng pot session.

And then Section 12, I think I discussed about Section 12, Illegal Possession of Drug Paraphernalia, di
ba? That is absorbed by illegal use; illegal use is absorbed by illegal possession, di ba? Okay.

Now, what about Section 21? Did I discuss Section 21, Destruction of the Evidence? Okay, that is a new
provision. This is the only crime in our penal structures where the law requires the destruction of the
evidence even before trial. The usual position of the destruction of tools or instruments used in the
commission of a crime or the law would be the provisions in Article 45 of the Revised Penal Code. Under
Article 45 of the Revised Penal Code, those of instruments used in the commission of the crime, are
forfeited in favor of the government. But that forfeiture under Article 45 takes place during judgment. In
other words, that is incorporated with the judgment. When caught, you can only get the tools,
instruments, those used in the commission of the crime, are for trial because that will be incorporated in
the judgment.

But under Section 21 of the Dangerous Drugs Law, the law allows the destruction of the evidence even
before trial. Of course, the process is very long under Section 21. Masyadong mahaba yung process
dyan, eh. But you can simplify the process. The first process is that when dangerous drugs, or
equipment, or precursors, or chemicals are seized or confiscated, then they shall remain in the place
where they seized or confiscated. What the policemen will do is to conduct an inventory and then brought
forth to cuff them. They cannot move, di ba? Let's say, there is a search warrant. So this house is now
searched. There are chemicals, or dangerous drugs, or equipment in the production of drugs, then those
shall not be touched by the arresting policemen or certain policemen. What they will do is that they will
photograph and then they will inventory. Right after the inventory and the photograph, then the evidence
will be transferred to the chemist, ano? The chemist now will now determine if those confiscated are
found to be positive to the test of dangerous drugs. So then, all of these will be subjected to a test.

Then what will happen is that, so the role of the chemist therefore, is to determine if the evidence
confiscated was seize, or the pieces of evidence, or the instrument and so on, or the laboratory
equipment used in the production of dangerous drugs are positive to the test of dangerous drugs. And
then the chemist will have to make the findings immediately after, ano? Right after their transfer to them.
And then she will prepare the report under oath. The purpose of the report is to determine really if theyre
positive to the test for dangerous drugs. Now, if the result is positive then the chemist now will and the
policemen will now file the case before the inquest fiscal.

They will now bring the case to inquest fiscal. Do you know who the inquest fiscal? We studied that
under Article 125. The inquest fiscal is to determine if there is a probable cause upon the information if a
person is arrested without a warrant. In other words, if there is a warrant of arrest, then that case will be

4D 2007 57
brought to the fiscal to determine if there is a probable cause of finding information without a need of a
preliminary investigation. So, the case will go to the fiscal and then the fiscal is required to find
information if there is a probable cause within 24 hours from receipt of the complaint. If it is the subject
matter of inquest for within 48 hours, if it passed through the regular preliminary investigation under
Section 19 of 9165, noh.

If your information now is received by the court, what will the judge do? The judge within 72 hours from
receipt of the information will conduct an ocular inspection in the place where the items are located. And
then within 24 hours from the ocular inspection will cause the destruction of the evidence. If the presence
of the accused, his counsel, the fiscal, the media, the PDEA, concerned citizens, dami eh, and then what
will happen is that, it's like a court proceeding. The process of destruction is recorded by the court.

Then what became is we endorse that. So lets say this is one ton, di ba? What they will do is that, they
will just get a representative sample. The representative sample, if this is one ton, so probably a
representative sample of 500 grams will do. So, kukuha ng 500 grams and then later on, the 500 grams
will be one that will be marked and that will now be the one that will be used in the presentation of the
evidence of the prosecution. So you get a representative sample that is recorded by the court, that is
marked during the burning and then all those that are no longer needed will now be destroyed. So what
will happen is that during the trial, only those representative samples that were taken during the burning,
will be the one that will be presented to the court to defend to establish the purpose direct time. Thats
what happens in Section 21.

Thats why the law, as I said, this is the only crime that the law allows destruction of the evidence even
before arraignment. Kasi within 72 hours in 24 hours from the ocular inspection, the evidence must be
destroyed. That is a new provision.

But the other new provision is I don't know if I told you about Section 33 last time? Did I tell you about
Section 33? Not yet. Ha? I told you last time, ha? Okay. Then you know that Section 33, that is a very
important provision. Where even we do not follow the Witness Protection Program of the DOJ or aside
from those that are found in the rules of criminal procedure under Rule 119, as on the discharge of an
accused, ano, independent of the discharged when accused under Rule 119 of the laws of criminal
procedure, a person arrested for penalties that might have done - Actually not so, the penalty is not too
high, like illegal use, di ba? Illegal use, visitor of a vice den, then also Section 19 I think when
unauthorized prescription. All of these are considered light offenses in so far as 9165.

So, if you are caught in the act of using, then you can be utilized a state witness without going through the
motion of discharging an accused under the rules of criminal procedure. Because there is also criminal
procedure if the excess of guilt is not strong and the one of the accused can be discharged and then
utilized as a prosecution witness, hindi ba? Under your rules of criminal procedure, you can forego with
that under Section 33.

So, the person arrested can be utilized as a state witness in order to establish the source of the sources
of the drugs confiscated from him or in order to prove:

that the person is a maintainer of a vice den.
that the person is engaged in the cultivation of dangerous drug.
that the person is engaged in the manufacture of dangerous drugs.
that this person is a drug trafficker and so on.

That person can be utilized but of course, the person can be utilized if not be liable for a high offense or a
grave offense where the penalty is life imprisonment or death. That is not allowed. Only those arrested
where the penalties are not as high as the penalties in the other crimes. Okay.

Then the other one is also important. Did I tell you about Section 27, yung pilferage? Hindi pa, hind pa?
Okay. This was in examination. Actually, this is a question asked in the bar exam two years ago. Under
Section 27, these officers or those who are in-charged in the keeping of evidence, must keep the

4D 2007 58
evidence, actually you know. They are not supposed to use it for themselves or steal. That will become
a crime under Section 27 because that will be equivalent to pilferage. They must account for the drugs in
their possession when required. If they cannot account, then thats also a violation of Section 27. It is
either pilferage or misappropriation of the drugs confiscated.

So, what happened to that problem two years ago is that sabi nila qualified bribery. The problem was the
Chinese arrived on the airport. I told you with five kilos wrapped in five different packages. So, there
were five kilos wrapped in five different packages. He was arrested by the customs with the aviation
police in NAIA, and then, 'yun pala, the policemen arrested the Chinese and a negotiation. So, what they
did was the arresting officers cut three kilos of the heroin and then the Chinese cut the two kilos of heroin,
and then he was allowed to leave. In other words he was never arrested.

Question, what are the crimes committed? Nandun lahat ng facts eh. What are the crimes committed?
Of course, the Chinese is liable for drug trafficking or importation under Section 4. But there are also
offenses committed by the police officers, eh. So, sabi nila, that is direct bribery or qualified bribery under
article 411-A. If an apprehending officer fails to prosecute or apprehend the person where the penalty is
reclusion perpetua to death or life imprisonment, the crime is qualified bribery, because they failed to
perform required by law. And the penalty of the offense committed by the Chinese is a penalty of life
imprisonment to death, then they are liable to the crime of qualified bribery, and therefore 411. But that's
not the crime. That is not qualified bribery because there was no what was taken, what was given
rather, to the policemen in order not to perform required by law is not money in exchanged. It is the very
evidence, if we define, the three kilos of heroin which should have been taken by them, kept by them and
then surrendered to the authorities later on, if required. But what did they do? They did not charge the
person arrested. Happy sila. Kinuha ng pulis yung tatlo. Yung dalawa ibinigay dun sa arrested. So,
hindi pwedeng bribery 'yun because the three kilos were already part of the evidence, eh. So, anong
crime 'to per Section 27? Because they were supposed to keep the evidence in order that when they are
required to account for them, they have to account for them. And that is an evidence in dangerous drugs.
So, the violation is Section 27 not bribery.

The offense committed would be thats what I was telling you. They are also liable for the crime of
what, Protectors and coddlers of a drug trafficker under Section 4 or an importer? So, there were three
crimes. One for Section 4 for the Chinese, two offenses for the police officers Section 27, and then the
other one is protector of coddlers. That's the meaning of Section 27, ha? Okay.

Now, the other thing that you will have to baka 'eto yung itatanong sa inyo sa next year pag nag-bar
kayo. 'Yung suspension of sentence under Section 66 of Republic Act 9165. Look at your Section 66,
that if the offender is a minor, first time minor offender, hindi ba, and at the time of the commission of the
crime, between the ages of 15 and 18 acting with discernment, as long as at the time of trial, he is still or
at the time the judgment should have been promulgated, he is still 18 years of age, then he is entitled to
suspension of sentence, di ba? So, the requirement is that, he should be less than 18 at the time of the
commission of the offense and less than 18 at the time the judgment should have been promulgated.
Dalawa lang ang requirement nun di ba? So, dapat 18 pa rin siya.

But under Section 38 of your 9344, that's why there is conflict between the two, eh. Under Section 38 of
Republic Act of 9344, a suspension of sentence of minor offender, the law says that, if the offender is less
than 18 at the time of the commission of the crime, even if he is already more than 18 at the time
judgment should have been promulgated, he can still apply for suspension of sentence. So, may conflict
yung dalawa. Yung una eh yung sa 9344, kahit more than 18 pwede pa rin. In other words, you were
arrested, 17 years old. Then you go to trial. At the time that the judgment is about to be promulgated,
you already reached the age of 20. Pwede ka ng magsuspension of sentence under 9344 because the
law does not require that you are still less than 18 at the time the judgment should have been
promulgated. But under Section 66 of 9165, at the time the judgment should have been promulgated,
you are still less than 18. So the problem is what law are you going to apply? Is it 9344 or Section 66 of
Republic 9165? If the offense is violation of 9165 because that is a special law, then Section 66 will
apply. That will govern. Suspension of sentence of minor offender for drug cases the law that is
applicable is Section 66, 9165. Not the general provision in the Republic Act 9344.

4D 2007 59

And then you have also offenses like delay of bungling under Section 91 and 92. We have there offenses
involving bungling or committed by those who prosecute or those who apprehend. Bungling. Ano yung
bungling or delay? Bungling. The policeman testifies in favor of the accused, or the fiscal probes a case
not for the conviction of the accused but for his acquittal, or the witnesses testify for the acquittal of the
accused, they are liable of bungling. The penalty is a little bit ano harsh. 12 years and 1 week to 20
years 'yan. Then policemen or witnesses who refuse to testify are likewise liable for delay for failure to
testify. That is also a crime. Kaya pag nasubpoenahan ka ng pulis either ng husgado, yun pulis ayaw
magtestify filan mo ng criminal case. He will be liable under this provision, sa 91 'yan 92.
Then you go back to the other offenses for crimes, ano. Meron din yung crime na cultivation. 'Yung mga
nagtatanim ng marijuana, cultivation 'yan. Meron din yung manufacture. Those who manufacture
dangerous drugs. Matindi ang penalty n'yan, life imprisonment to death. Pag nagtanim ka ng marijuana
sa loob na lang ng bahay. Bakit sa loob ng bahay? You can put up a defense, eh. Medicinal, eh. Sabi
nila, gamot daw sa tiyan. Although sa Ilocos maraming nagtatanim sa loob ng bahay nyan. Oo.
Ginagamit ng ano eh. They boil the leaves and then they drink. Sabi nila gamot daw. I dont know. Di
ko pa nasubukan. But thats what they do. But cultivation that means plantation is punishable by life
imprisonment to death.

Now, in Section or qualifying aggravating circumstance, I think that is Section 35. Naaalala n'yo yung
aggravating circumstances, di ba? I told you that there are also special aggravating. When the
aggravating circumstance is special aggravating, then it cannot be offset by any mitigating, hindi ba?
Okay.

Yes?

May question lang po ako regarding cultivation. Sir, paano po pagka may nakatanim na marijuana, kahit
na shabu yung house n'yo and then

Marijuana, marijuana and then

Planted in your house?

Yes, Sir. And then, you come

You abort it immediately.

Sir, ___ (unintelligible)

You abort it immediately because that is part of the prohibition, eh. The problem kasi, 'yung cultivation,
the law does not say what is cultivation. Is it large scale, small scale or not? Cultivation lang. Planting or
cultivation.

Yes?

Even if the planter was not aware it was marijuana.

That will be a matter of defense, iha. That is, that you acted in good faith.

So, in that case, sir, it's not sure that he was caught in flagrante delicto).

That will be a matter of their defense.

Kaya lang yung marijuana, you can distinguish that from other plants. I saw already a plant of marijuana.
You cannot claim innocence. Iba yung leaves ng marijuana. Oo, iba saka may amoy yan, may amoy.

Sir, which Section yung cultivation? Which Section?

4D 2007 60

I think it is on the cultivation of dangerous drugs. Or I think between 56 and 10 and then 59, 10, 11, 12,
13, 14.

So, anyway, then the other thing that if you want that the one I'm telling you to check Section 25 is that
qualifying. This is the one that I was telling you. That kapag special aggravating circumstances, meron
isang tuso sa bar exams. Ang tinanong, whats the effect of special aggravating circumstance? Give an
example of a special aggravating circumstance. Kawawa yun mga taga probinsya. Hindi nila alam kung
ano yung special aggravating. In special aggravating, those circumstances that may not be found in
Article 14. But there are special conditions of law that require the imposition of the maximum penalty.

So, if you find a circumstance not found in Article 14 and then provides that the maximum penalty shall be
imposed, that is the meaning of special aggravating. So, you have your Republic Act 8294 on illegal
possession of firearms, di ba? When an unlicensed firearm I used in the killing, then the unlicensed
firearm is an aggravating circumstance. Yung Section 15 din, I mean Section 25. But we had a long
debate about this when it was asked two years ago. Kasi nakalagay sa law, Section 25 is when one
commits a crime and he is found positive to the test of dangerous drugs, then it is a qualifying
aggravating. Nakalagay sa Section 25. We debated kasi pag sinabi mong qualified aggravating, then it
may change the nature of the crime. Gaya ng homicide. Commit a crime of homicide without any
qualifying aggravating then it becomes a crime of homicide. But when you commit a crime of killing
attended by qualifying aggravating circumstance of treachery, then the crime becomes a crime of murder.
So, the treachery is a qualified aggravating.

Now, if you apply that principle. Similar to Section 25 because Section 25 says that if one is found
positive to the test of dangerous drugs, then that is a qualifying aggravating circumstance. Then if you kill
somebody else, no qualifying aggravating. But you were found positive to the test of dangerous drugs,
then the crime becomes a crime of murder. Ganun tatanggap ng qualifying aggravating. I think that is
not the intention of the lawmaker. The intention there is only to impose the maximum penalty required by
law. Why? Supposing you have a maid, then o robbery na lang robbery. You put her a gun then give
me your money or else I will kill you. Then you give you the money. Then you were arrested. Then
when you were arrested you were subjected to a test for the presence of dangerous drugs. Positive. So,
what will happen now? If that is a qualified aggravating circumstance, being positive to the test of
dangerous drugs, then the crime becomes qualified robbery. Wala namang crime na qualified robbery.
So, that is only special aggravating or yung qualified theft na ninakawan ka ng katulong mo. She has free
access to your personal belongings. You come to class. When you go home, pagdating dun sa bahay,
mister Puno would like to take a bath. His boy already ran away with his brief. If that boy is found
positive to the test of dangerous drugs and you consider his being positive to the test of dangerous drugs
as a qualified aggravating, then you will have a crime of qualified qualified theft. Sabi ko hindi qualified
yan, special aggravating. That should be special aggravating. It was not intended to change the nature
of the crime. With being positive to the test of dangerous drugs is not intended to change the nature of
the crime because even there is actually, to impose the maximum penalty of the crime committed.

Then the other thing is that yung sa Section 36, mandatory drug testing. There is a pending case in the
Supreme Court until now. The case was filed as early as 2002 right then after the law begin effective.
Questioning the mandatory provisions of Article under Section 36 on mandatory drug testing. The law
says that if you are securing a license for your gun then you have to undergo mandatory drug testing.

On your section, a license for the purpose of drivers license, then you have to have a mandatory drug
testing. Then, if you belong to the tertiary or secondary school, then you have to undergo mandatory
drug testing. Then, when you enter the Civil Service, now there is from the government, mandatory drug
testing. When you enter a private employment, then that is also mandatory drug testing, or you run for a
public office, then you have to undergo mandatory drug testing. The worst is given. The worst is when
one is charged to the crime or an offense with the fiscals office, ha, nakalagay doon sa Section 36, when
one is charge with the crime before the fiscals office and the penalty of the crime charged against the
respondent is a penalty of more than 6 years, mandatory drug testing. Lets say finile mo si Mr. Sosa ng
estafa sa fiscals office. Ang penalty ay 6 years and 1 day to 12 years. prison mayor. He will have to

4D 2007 61
undergo mandatory drug testing under Section 36. Kaya nga sabi nila foul ang Section 36. It is - you are
presumed innocent, di ba? After the worker what is the use if they had to undergo drug testing? Gina-
judge ka lang kung may loko is to bring it up. Kailangan kahit anong pasok basta more than 6 years.
Let's say physical injuries lang ang dapat na file sa iyo. What will the complainant do? He will fight
against a frustrated homicide because if it frustrated homicide, the penalty is 6 years and 1 day to 12
years, mag-mamandatory drug testing ka, iistorbohin ka niyan. But yun ang nakalagay sa Section 36 eh.

Also in tertiary and secondary schools. Whats the reason why this young people, young children will
undergo a mandatory drug testing, di ba? Sabi ni Mayor Duterte e, why should one running for a republic
office undergo a mandatory drug testing if the constitution already provides for the qualifications, hindi
ba? That is another qualification. So, the problem with this law of dome effect, a petition was filed with
the Supreme Court questioning because of this current Section 36. Wala pang resulta, matagal na. For
those in the military or armed forces of the Philippine, they are unquestionable. So, there's now pending
mandatory drug testing.

But then, the other thing that we have to remember is when you are charged with illegal possession, di
ba? Illegal possession sa Section 11. The penalty on Section 11 is dependent on the quantity,
regardless of the purity. That is the only offense where the penalty is dependent on the quantity.

Now, you look at your Section 13. I think it is in Section 13. The law says that when one is caught in the
act of possessing dangerous drugs in the company of two or more persons or in a social gathering, then
the penalties had been imposed is maximum period. Therefore, Section 13 is aggravating circumstance
of Section 11.

Section 13 is an aggravating circumstance of Section 11. And then, thats why supposing two or more
persons are caught in the act of using. So, there are 3 persons caught in the act of using dangerous
drug. Kung tatlo kayo, what is the effect of 3 persons at the same time using dangerous drugs? What is
the effect? Sabi nila, aggravating pa yun eh. Hindi aggravating yun. The aggravating circumstance in
Section 13 is only in so far as illegal possession. Illegal possession yan, not an aggravating in illegal use.
There is no aggravating in illegal use. Kaya sabi nila, Section 13 daw is pot session. Ang Section 13,
hindi pot session yan. Section 13 is an aggravating circumstance in illegal possession under Section 11.

Section 14, likewise, is an aggravating circumstance when illegal possession of graft paraphernalia is in
the comfort of 2 or more persons or in a social gathering, then the penalty shall be imposed. It is
maximum period. In other words, the aggravating circumstances in 13 and 14 do not refer to illegal use.
There is no such thing as aggravating circumstance in illegal use under Section 15.

So, 13 and 14 actually are not offenses, but aggravating circumstances in violation of Section 11 and
Section 12 respectively. So, what for? Wala na. Of course, I told you last time, yung number 1 element
of illegal possession is or even the violation of dangerous drugs law is the presentation of the drugs
during the trial, hindi ba? Lets say, if you want to prove we're drug pushing under Section 5. Question:
How many witnesses are you supposed to present? Di ba drug pushing, sale? Sale, di ba, sale? How
many witnesses are supposed to present? Should be 2, okay? Sabi ng Supreme Court, 1 is sufficient
witness as long as the witness has personal knowledge and therefore can testify on the Section 11 of the
offense. There is no need to prolonging testimony of that witness. One witness will be sufficient.

The other thing is that, as I told you last time and I will say it again, when you say dangerous drugs, and
therefore shall be presented and identified and offered as evidence in the trial, there must be yet to prove
the chain of custody from the time he is arrested from the offender up to this time he is transmitted to the
investigator, until the evidence is submitted to the chemist for examination, until the evidence is preserved
for purposes of trial. And then, you have also to prove the chain of custody from the time it is brought to
the court and then one during the trial. If there is any hiatus on the chain of custody, the accused will be
acquitted. Sabi ng Supreme Court e yung police eh, nakasuhan niya sana kay Mr. Sosa. Ang ginawa ng
pulis, hindi naman niya minarkahan yung evidence or the arresting officer did was to bring Mr. Sosa to the
police and then it was already police station that the evidence was not but even the arresting officer, not
by the arresting officer, but the policeman who was not even the arresting policeman, but the policeman

4D 2007 62
who was asked to investigate the case. Sabi ng Supreme Court, the policemen have vindicated the case.
He is not the one who arrested the person. That may not be the evidence confiscated from the accused
or in a case also why they decided to the Supreme Court with the arrest warrant. The place therefore
they brought the person arrested to the police station. That was only the time that they frisked the
accused, then when they frisked, they found dangerous drugs. Sabi ng Supreme Court, damputin yan.
Bat hindi mo frinisked dun sa pagkahuli dun sa lugar? Bakit doon lang sa police station? Dont expect
'tong Supreme Court sa purpose the ringside. The accused established the evidence of confiscated from
the accused. There is a doubt there. Okay.

No more. If it is offenses under of the same code, you're being positive to the dangerous drugs. He will
be liable for violation of Section 13. The justification of Section 25 is a crime or offense punishable under
the law. Kasi sa Section 55, yung voluntary submission is procedural, hindi lalabas sa bar yan e, yung
compulsory submission and then voluntary submission. Supposing you are asked, what is voluntary
submission and what is compulsory submission? Lets say, youre an addict, di ba? You are not arrested
in the act of using. But they believe that you are really a drug dependent. What will you do? You go to
the court and then file a petition for voluntary submission. The purpose there is that before the order, that
you will be rehabilitated. Thats the meaning of voluntary submission. If you now rehabilitated, you are
not liable for any crime because youve volunteered to the court that you are a drug dependent. Thats
the meaning. But in the crime of compulsory submission, ayaw mong magamot, then somebody,
probably your father, your mother, or any agency for that matter, who will file a petition. That is what they
call compulsory submission. He is not the person who goes to the court and then asks for an order that
he may be rehabilitated, but another person, the third person shall be compelled, and the court will order
his arrested and then brought to a rehabilitation center. Thats the meaning, ano? But in both cases, if
you succeeded in your rehabilitation program, you will no longer be liable for illegal use. Kasi nag-submit
ka voluntarily e. That is the meaning of voluntary submission or compulsory submission. I think we have
passed everything that we are supposed to pass. Yung ngayon, the decisions not in Supreme Court,
have you heard about PDEA? Kasi under the law, there would be agency, the dangerous drugs law of
the PDEA (Philippine Drug Enforcement Agency).

Now, under the law, the arrest or violators of the Dangerous Drugs Law, the lead agency is PDEA, that's
the law. So, supposing a policeman does not belong to the PDEA makes his own arrest without involving
the PDEA of such arrest. So they use that, they capitalized on those situation for the acquittal of the used
drug as a drug for the acquittal. Kasi nakalagay dun sa law, the lead agency and so far as the dangerous
drugs disposal is PDEA. And under the law, before policeman, not members of the PDEA, who make
arrest, they should first coordinate with the PDEA. So, lets say, they operate here in Rockwell, ordinary
policemen, before they come here and operate, the members to coordinate with the PDEA. Boss, meron
kaming i-operate dito sa Rockwell. Mga addicts. That's the procedure. Not in Rockwell Avenue ha? So,
what they do is that, sometimes they do not anymore inform the PDEA. They do not coordinate. They go
down into the place and then make arrest. The accused lawyers will raise that issue. That they cannot
be convicted of violation of 9165 because they failed to inform the PDEA. That will not cause the acquittal
of the accused. That is only procedural in character. What is only required by the law is that the PDEA
shall be the lead agency. But the law does not say that, eh kung ganun ang mangyayar pati ako. Di ba
meron tayong citizen's arrest? At kung meron akong marijuana dun, eh wala namang PDEA, hindi ko na
arestuhin yan? Minsan, mga abogado rin mga loko e. Nung manalo yung mga inaresto, sabi ng
Supreme Court nagalit pa eh. That will prevent others from conducting arrest. Even if somebody is
smoking marijuana in your presence, you can no longer arrest him. If you call action PDEA, e yung
PDEA nag-iinuman daw.

Revised Penal Code: Articles 200-245 Crimes Committed by Public Officers with RA 3019 and RA 7080

Crimes Committed by Public Officers: Part 1

Under the law, you have to declare all your assets. He was charged with perjury. They acquitted him for
perjury because under the Republic Act 3019 there must be a compliance procedure. If there is before

4D 2007 63
one will be charge with non-disclosure, the government must first form a compliance committee in order
that the government employee will be given a chance to correct or rectify the error. So, it will be
premature by perjury, di ba. Sabi ko ang perjury is not the falsehood, di ba? Perjury is malicious false
arrangement of facts, it is not only false arrangement of facts, deliberate and malicious, thats why he was
acquitted.

That is so far as the bar exam, yesterday, sobra kang - the bar exam should be this year, sobra.
Talagang, I do not know, theyre not trying to they do not want to try and to try no, to try to determine
who should become lawyers eh, di ba. Ganun ang mga questions that they do not need in order to
become lawyers.

Like for example, what is the retirement age of an underground miner? The questions are one liners. You
are not given the chance to think, di ba. Because it is a one liner, then you anticipate assumptions while
in the bar exam. Hindi mo alam kung anong ginagalaw nung what the bar examiner would like to ask.
Like for example, yesterday in Criminal Law, what are the penalties that can be served simultaneously?
Hindi mo alam kung anong gusto niya eh. What are the penalties that can be served simultaneously?
Sabi nila the accessory penalties, fine. Accessory penalties go with principal penalties, kako sobra naman
yung question. Serve eh. You do not serve accessory penaly. You suffer from if it is a fine, then you pay
the fine. If its accessory, then you suffer. If its imprisonment, then you serve. The only problem is serve
eh. Sabi niya anong sagot? Eh sabi ko baka the examiner is asking there what is the triple penalty rule.
The only provision in the Revised Penal Code where you see simultaneous service of sentence, yung
Article 70 lang eh, di ba? Di ba pinag-aralan natin, when one is convicted of two or more crimes, they
shall be served successively, di ba.

According to 70, if the penalties cannot be served simultaneously, but if the penalties can be served
simultaneously, then it should not be more than three times of the most severe penalty. But in no case,
imprisonment shall be more than 40 years. Yun ang nakikita kong simultaneous dun eh. But ang question
when, di ba? What are the penalties that can be served simultaneously? Hindi mo alam kung anong
gusto ng examiner, eh. Even the students, the other questions, of course what are the acts punished with
inciting to sedition, okay yun? What are the different or what are the distinctions of accessory and
accomplice and co-conspirator, di ba? Sabi nila sa atin daw nanggaling, hindi ko alam. Then the other
question is the one who fired a gun then somebody suffered injuries. Paanong paano mo sasagutin
yun? The firing of a gun, di ba, if the act is unlawful, under Paragraph 4 of Article 4 then you become
liable. Although the lawful act done is different from what they intended to commit. But if the act is lawful
and then you cause injury, then you are liable for culpa versus imprudence resulting in physical injuries.
Kayang kaya nyo yan eh. But what about the other students from other school? Hindi nila kaya yan eh.
Mabigat yun. The other question tingnan mo ha. Yung sa 347.

Yes?

Sir, question, the policeman who fired the warning shot, is the act would now be firing a warning shot
considered negligence?

Okay, if it is in the course of arresting an escapee, the act would be lawful. But if is merely fired in a place
like a public place, thats becomes a crime of alarm and scandal. So, it becomes unlawful.

So if its (to deter that)? The question I think is that people were approaching parang dudukutin siya.

But the problem there is that no, there were people who were rushing no, but they will not be found.
Then in order to scare them, suddenly he fired the gun. Hindi mo alam kung what is exactly they want to
establish. Kasi ginamit niya yung scare eh. If you want to scare, then that is grave threat. Firing a gun will
be a grave threat eh. Kaya lang he used yung word na scare eh. To scare them away, di ba. Kaya di mo
alam kung anong gusto. The other one is 247, although probably I told you before the students here yung
247, yung exceptional circumstances whether absolute for a cause di ba? When you kill your wife in the
act of sex and immediately thereafter, after you caught her in the act of sexual intercourse, the penalty is
only destierro. Then the judgment was - Okay, he was convicted now he has committed the penalty of

4D 2007 64
destierro and awarded an indemnity of 50,000 pesos. Question dun eh, is he - is the order requiring him
to pay the amount of 50,000 pesos indemnity correct? Yun ang tanong dun eh. Dito maraming may alam.
Because I told them that in 247, that that destierro is not in the form of a penalty. It is for the protection of
the offender in order that he cannot go within the radius eh. Thats not in the form of a penalty. That is for
the protection. So, there is no crime. So, in the order, therefore, is to pay with the amount of 50,000
indemnity that is wrong because you can only be civil liable if you are criminally liable. You cannot award
civil liability if there is no crime.

Ang problema yung pangalawa. Ang tanong ganito eh, supposing he is now suffering from that penalty of
destierro and, therefore, he cannot enter within the radius of 50 kilometers. He entered, violated the
penalty of destierro, and then he smoked dangerous drugs, and he was caught in the act of using
dangerous drugs. Question: Ang layo ng tanong, is the indeterminate sentence law applicable? Ang layo.
Sabi ko pag ganun ang tanong diyan, I do not know what the examiner would like to ask from the
examinee. Kasi if that is the question you should know what is the penalty of illegal use eh. And penalty is
not included. Ang penalty ng illegal use anong penalty ng illegal use sa Section 15? Six months
rehabilitation eh. Ngayon kung alam mo ang penalty is 6 months rehabilitation, then you can answer the
question. There is no indeterminate sentence law if the penalty is not imprisonment. Yun ang sagot dun.
Is the indeterminate sentence law applicable? No, because the penalty of use for the first offender is only
6 months rehabilitation.

Hindi ba puwede ISL is not applicable because when he violated the destierro its evasion of service. So,
immediately this one is

Depende sa (recidivism), eh.

I do not know nga kung anong gusto ng examiner eh. Pwede mo rin i-disqualify because he maybe a
habitual delinquent or recidivist, hindi ba. But he does not appear to be a recidivist. Yung 247 is not a
crime eh since you do not consider the first conviction as a crime committed after final judgment. And
hindi ko nga alam kung anong gusto palabasin eh. Probably, the examiner wanted to ask because this a
special law, is indeterminate sentence law applicable? Eh di hindi na sinabi sana. Hindi eh. Ang layo ng
sagot. Kako, sobra naman. Of course, alam nila marahil I always tell them that the penalty of use is six
months rehabilitation.

Pag rehabilitation walang indeterminate because thats not imprisonment eh. Ang layo ng sagot. Ang
tanong, then the other one who will go to prison without yung grave coercion, yung ayaw magbayad ng
apartment di ba. Pagkatapos nilagyan niya ng karatula, Itong room ay sarado, di ba. Hindi naman
sinasabi kung para kanino yung ano eh para kanino yung warning na yun. Is it for the lessee or for any
other person? Meron lang warning dun eh. Sarado itong kalsada. Huwag pumasok. Magkakaroon ng
kasalan, something like that. Were expecting better questions. Ganun din sa Labor Law, ganun din. Civil
Law lng lang yata maganda eh. Civil Law and Tax. Commercial, I do not know Commercial Law. Okay din
daw ano ha. Yung panghapon ang binigyan yung mga pang hapon ang kawawa eh. Dapat naman,
pagod na ako eh.

Yung sa Labor Code they need to know what is the retirement age of an underground miner to become a
lawyer? Sobra naman. Yung pangalawang question, what are the penalties that can be served
simultaneously? Hindi ko maintindihan kung ano ba. Sabi ko, triple penalty law yan. Nag-aaway na nga
kami kanina sa mga answer. We were exchanging notes. Ako ang nagsabi we are going to prepare the
answers of UP next Thursday noon. Eh, kami-kami nag-aaway na eh, kasi sabi ko, hindi ganito nalang,
mag-alternative answer na lang, lahat ng sagot correct. Kasi kawawa estudyante eh. Because kami
mismo hindi namin alam kung anong we do not know what the examiner wants. I could have been
easier if an accused is convicted of several crimes, how will you serve the sentence, tapos. But if you ask
what are the penalties, sabi nila all penalties except death, daw. Sa tingin ko hindi lang hindi yung
concern ang nasasagot. All penalties except the penalty of death that is we have accessory penalties
din eh.


4D 2007 65
Okay, so 200, meron pa yung nonpayment of a gambling debt, yung may agreement. The ricemill yun
ang ibabayad dun sa gambling debt. Yun pala niloloko niya sa ledger, ha. In other words, the amount that
he was collecting was lower than what was actually collected. Anong dapat - stock. Eh problema meron
din tanong, eh the payment a gambling debt. Baka gusto niyong malaman meron ding violation of PD
1602, gambling. Hindi ko maintindihan. Okay. So, about gambling thats their gambling is jueteng.
Thats PD 1602. Thats the law that actually penalizes what is gambling.

PD 1602 Prescribing stiffer penalties on illegal gambling

So, there are many laws about gambling. The most important one is PD 1602 because we will find there
what is the meaning of gambling. Gambling is winning by chance, we bet. So, winning is dependent on
based on level of chance, not on skill. But even if it is based on chance, these games are played or
gambling is played like a parlor game, then there is no violation of PD 1602. Pag sinabing may patay,
merong nakipaglamay. Naglaro sila ng Lucky 9 or games among the immediate members of the family
just to kill the time. Parlor game yan. Thats not gambling. There are other special laws concerning
gambling, but they do not fall under PD 1602. We have illegal cockfighting, yung point shaving, yung
sport contests, illegal bookies. Hindi naman yan itatanong sa bar yan eh. Maybe 1602 lang ang itatanon
diyan sa bar exam.

Articles 200 and 201

Okay, so lets go to 200,201, and 202. Article 200 actually is not a crime. It only provides whats the
meaning of grave scandal, but there is no penalty of grave scandal under Article 200. After all, we are
pertaining to morals or customs and traditions which would fall under the meaning of grave scandal. The
problem with grave scandal is that it cannot be determined by the law itself. Kasi factual yan eh. Because
what is moral to one maybe immoral to the other. Thats why you can hardly find a decision sa Supreme
Court where one is already been convicted of grave scandal. Because it is not the court that will
determine what act is immoral.

Kaya nga mahirap ma-convict sa grave scandal except, of course, if you fall under 201. Yung obscenity,
pornography, obscenity and so on, then that would be different. Wala masyado yan sa Book 1 obscenity,
pornography. But obscenity is not only limited to what you see from human beings, but it may also include
yung mga ano obscene materials or yung mga istorya. Ano ba yan? Xerex ba yan? Yung mga sa Tiktik.
Tiktik, Sagad, ano ba yun? Yung mga Sagad, ano ba yun? All of these, included sa obscenity yan. So, its
not only in television, cinematography or human beings that we see, they include yan, stories, komik,s
lahat yan. So, yun lang yan.

Article 202 Vagrants and prostitutes; penalty.

Sa 202 naman, dapat that law should have already been amended. There is no such crime as vagrancy,
supposed to be. Why? Because vagrancy is committed when one has no permanent address and going
else in public places with no known work. Walang residence, walang trabaho, kaya usually in public
places. Why they should be penalized kung talagang wala pampabahay, walang trabaho? But they are
vagrants and, therefore, they correlate to 202 or even a prostitute. A prostitute is very hard to prove
because they have to prove regularity or habituality. There must be an element of habituality or regularity.
Eh, sino magtetestigo?

There was one policeman in Manila; They wanted to raid a prostitution den. So, the head of that team
pretended to be a customer in that place. So, talagang naging customer talaga sa prostitute, then later on
raid. Then what happened with the policeman, he was suspended for being the customer of that
prostitute. Oo, he was sanctioned. Ang sabi niya, Bakit mo ko diniretso pa? Grabe eh. So, in other
words, dapat ni-raid mo na lang.

In other words, how can you prove a crime of being a prostitute when there are no witnesses? Sino mag-
te-testify? The only one who can testify is the customer. Kasi, who will prove habituality or irregularity?
Customer lang eh. Most of the customers are married. Di nahuli sila ng misis. Kasi nga customer, binata,

4D 2007 66
naku hopeless naman yang binatang yan. Hopeless! Kukuha ba ng prostitute eh binata siya? Mag-asawa
na lang. Sino ang gumagamit diyan? Who will become a witness? We will now go to 203 to 245.

Article 203 Who are public officers

Okay, 203 is not a crime. That is the law that defines who are public officers that are covered by the law
pertaining to crimes punishable by public officers. Now, this is what I was saying before, in your Article 14,
Paragraph 1. The crimes defined from 204-245 are crimes they may be committed being a public officers
and element of the crime. Because there are other crimes where being a public officer is not an element
of the crime, but he maybe committed by a public officer. So, for example, falsification of a public
document under Article 171, di ba? Nakalagay dun sa 171, falsification maybe committed by notary
public, ecclesiastic, and public officers taking advantage of their public position. Nasa 171 yan, di ba? But
it is not found in this chapter.

In other words, the crime punishable found under this chapter are those crimes where being a public
officer is inherent in the crime. So that if you go back to Paragraph 1 of Article 14, the law says that taking
advantage of public position is an aggravating circumstance, hindi ba? So, if you commit a crime defined
from Article 244 then 245, that taking advantage of public position as an aggravating circumstance in
Paragraph 1 of Article 14 is not applicable to any of the crimes because you cannot take advantage of
your public position when that is the very element of the crime. Do you follow?

Article 203, therefore, is who are public officers - all who work with the government, whether a
consultancy, seasonal, project, regular, regardless of the position as long as they work for the
government, you are a public officer. Janitor, regular, temporary, official, member of the board, all the
receiving their pay from the gvernment, regardless of the manner of wages that you receive whether
allowance or what, you are a public officer under Article 203.

But, in the crime of technical and in the crime of malversation, anyway, we will take up Article 217 later
on. Except that in Article 217, the crime of malversation, aside from being a public officer, in order to be
liable for a crime of malversation under Article 217, the public officer must, likewise, be an accountable
officer. Yun ang pwede lang. Sa 217, public officer, at the same time, he must be an accountable officer.

Articles 204 to 209

Okay, so lets go now to 204. Yung 204 to 209 sometimes I hate to discuss all these crimes because they
pertain to charges in lawyers. Sa 204, rendition of unjust judgment. Knowing the rendering of an unjust
judgment. Even in 205, it is also rendition of the wrong judgment, 205. And then, doing a rendering an
unjust interlocutory order. Delay in the administration of justice through negligence, breach of trust of
lawyers. All of these from 204 to 209 are crimes committed by government lawyers, breach of trust.

Now, the problem, however, is that merely rendering an unjust judgment is not punishable. Otherwise, no
judge can stay forever. Maybe nagkasala kasi talgang meron mga wrong decisions eh. So, rendering an
unjust judgment or rendering an unjust interlocutory order is not what is punished by law. It is rather
knowingly rendering an unjust judgment or rendering an unjust interlocutory order.

Now, what is knowingly? Knowingly is fraudulently. You wrongfully applied the law in order to
accommodate one, and then in order to cause injustice to the other party. But, the problem, however, is
how will you prove knowingly? Knowingly can only be proven. If it is a state of mind, like in other crimes,
you can merely prove that the state of mind through acts performed by the offender, di ba? Knowingly
rendering, how do you prove that it is knowingly? You cannot read my mind if I render an unjust
judgment. Knowingly rendering an unjust judgment. How will you prove that? Then probably through the
acts of the judge. He might be whether be given money, but you cannot prove. If I then promise a benefit
or you might have the son or child receive something from a willing party. Yun ang thats the way to
prove knowingly. But that is very hard to prove, as I said, also in interlocutory order.


4D 2007 67
Now, the other provisions of the law we just cover, breach of trust by lawyers. If you are a government
lawyer, youre not supposed to divulge whatever information you gathered by reason of your decision.
You are not supposed to give it even if you go out from the government service. You are not supposed to
do that. So thats a breach of trust of lawyers, betrayal of trust to be exact.

But, lets go to more important one, 210. Kase pag-iisahin natin lahat, hindi natin maabutan yung robbery
or estafa. I want to reach the more important ones. Kaya jump lang natin ng konti. Anyway, these are not
hard provisions. But in so far as those provisions, you have to really understand them, you have to read
those laws, okay. Like 210, the crime of direct bribery. 211, the crime of indirect bribery. 211-A, the crime
of qualified bribery. 212, the crime of corruption of public officials. And then you go to Paragraphs B and
C of Section 3 of Republic Act 3019 because Paragraph B of Section 3 of 3019 is also in the form of
bribery. Paragraph C of Republic Act 3019, Section 3, likewise, in the form of bribery. So in other words,
what Im saying is that there are actually five crimes of bribery. One is 210, 211, 211-A, and then,
likewise, in Paragraph B and Paragraph C of Section 3 of Republic Act 3019, otherwise known as The
Anti-graft and Corrupt Practices Act. Okay.

Article 210 Direct bribery

What is then the crime of bribery? I was anticipating a problem on this with reference to plunder. Because
when we speak of bribery as a rule, the part is mutually agree. In other words, beginning of the money
and the acceptance of their money is consensual. Like what? Okay, lets go 210.

There are 3 ways of committing a crime of bribery:
1) The public officer receives money for consideration in order to perform an act that is punishable under
our Code, under our law. So, a policeman is given money in order to kill, then the giver as long as or
provided a law, then the public officer is liable for bribery under the first form. Yung usual na
tinatanong sa bribery would be those that fall under the second and the third forms.
2) The law says that when a public officer receives money or valuable or in exchange for money in order
to perform an act required by law, yun ang double compensation. Received money in order to
perform and act required by law.
3) And the third one is receive money in order not to perform an act required by law. So, the example
would be - received money in order to perform an act required by law.

If a policeman arrests somebody else, what should the policeman do as a policeman? He should arrest
and then file the case, di ba? So, the duty of the policeman is to arrest and then file, apprehend, and then
file the case later on. So, the private complainant in the crime of robbery told to the policeman, Sir, file
mo naman yung kaso para makulong. Then the policeman said, Ay, hindi. Yun ang kailangan ko ng
pang-meryenda eh. Pag kinakailangan ko ng pambili ng iuwi ko para sa pamilya ko eh. O, sir meron
dyan. Eh di, the private complainant now gives money, then after giving money, then policeman files the
case. Thats the first form.

On the second form, the policeman received money from the private complainant in order that he will
perform the act required of him that is to file the case, di ba? Yun ang tinatawag na double compensation.
May sweldo ka na sa gobyerno, kaya lang hindi ka gagalaw kung hindi ka bibigyan.

The third form is you receive money in order not to perform an act required by law. So, I arrested you.
Tapos sabi mo sa pulis, Sir, wag mo na akong tutuluyan? O bakit? Bigyan kita ng P20,000. O sige,
bigyan mo ko ng P20,000. I accepted it. So, I will be liable under the third form that is received money in
order not to perform. What is it that he did not perform? Not to file the case.

Article 211-A

But that should be differentiated with Article 211-A, the crime of qualified bribery. Because under 211-A,
when the public officer refuses to apprehend or prosecute the person arrested for the commission of the
crime where the penalty of the crime committed by that person is the penalty of life imprisonment,
reclusion perpetua or death, then the penalty either reclusion perpetua to death. But, if demand is in the

4D 2007 68
demand came from the public officer then the maximum penalty of death is one being imposed. Do you
follow?

Where lies the difference? The difference would be: I caught him in the act of committing a crime of
robbery. He gave me money in order not to perform an act required by law. Therefore, I do not file a case
against him. Another person, I arrested him for violation of Dangerous Drugs Law, selling 1 gram of
shabu. The penalty is life imprisonment to death under Section 5. He gave me then P20,000 in order that
I will not file the case against him for violation of Section 5. So, where lies the difference? In so far as the
robbery is concerned, I am liable for a crime of direct bribery, but in so far the sale of drugs is concerned,
I am liable for the crime of qualified bribery under 211-A.

Wheres the difference? Because of the penalty of the offenses or the crime committed by two persons.
The crime of robbery is not punishable by reclusion perpetua to death. But the crime committed in the
same is punishable by life imprisonment to death. So if I fail perform an act required by law where the
penalty, we include the penalty of reclusion perpetua and also death or even life imprisonment, then I am
liable for the crime of qualified bribery. It will depend on the penalty of the person arrested.

Republic Act 3019 Section 3 Paragraphs B and C

And then, in the meantime, you go to Paragraph B and Paragraph C of Republic Act 3019. Now, under
Paragraph B of Section B of Republic Act 3019, if a public officer directly or indirectly receives money for
any consideration and for the award of a contract or a transaction, then the law that is violated in Section
3 Paragraph B. When a public officer indirectly or directly receives money in consideration of the award or
a contract, or transaction, wherein that public officer has the right to intervene, then the crime is
Paragraph B of Section 3 3019. That is also in the form of a bribery.

The only difference between Article 210 and Section 3-B is that, in Paragraph B it is specified that the
receipt of money is for the purpose of awarding a contract or a transaction, likewise with Paragraph C of
Section 3. The law says in Paragraph C of Section 3, the receipt of money indirectly or directly for the
purpose of awarding or extending a license or a permit. So, therefore, if the public officer receives money
in order to perform an act required by law which is the awarding of a contract or a transaction, then the
law that is violated is Paragraph B of Section 3.

Now, if a public officer, likewise, performs an act required by law, but in exchange for money, but before it
could be acted upon he is paid in order to extend a license or a permit, then the law that is violated is
Section 3 Paragraph C of Republic Act 3019.

So, it will depend on the purpose. Pag ang purpose kontrata ang transaction, Republic Act 3019
Paragraph 3-B. If it is for a permit or a license, then Section 3 Paragraph C of Republic Act 3019, that is
Anti-Graft and Corruption Practices Act. That has already been cited in the case of Soriano versus
Sandiganbayan. You cannot be liable for two offenses. The law that will be applicable with this Republic
Act 3019 if the purpose is specified. Kung contract, transaction, Section 3-B if it is permit or a license,
Section 3. Any other, then it will be direct bribery under Article 210 except if the penalty is life
imprisonment, death or reclusion perpetua in so far as peace officers are concerned, then the law that is
violated is Article 211-A, okay?

Article 211 Indirect bribery

Now, if, however, the money or benefit is received by a public officer not for the purpose of performing an
act or not to perform an act or in order to commit a crime or any violation of law, then the law that is
violated is Article 211, the law on indirect bribery. So, in other words the receipt of the money is not
intended for the purpose of committing a crime, for the purpose of the nonperformance or for the purpose
of performance, then the law that is violated is Article 211, the law on indirect bribery.

So, what is indirect bribery? Receipt of something of value or money by reason of the position, by reason
of the position. But that law actually is intended to prevent or you are building a goodwill to the public

4D 2007 69
officer eh. Wala kang kinakailangan ngayon, but in the future, meron kang kinakailangan. So, ano nga,
pumapapel ka. You are then building up, nag bi-build ka ng friendship with the public official. Binibigyan
mo ng kwarta, and so and so on. Then later on, kinakailangan mo siya. That is indirect bribery because
there is no other purpose except that you are being gifted by reason of your public position.

Article 212 Corruption of public officials

Now, what about the giver? What is the liability of the giver? Then the giver will be liable under 212 for the
crime of corruption of a public official. The private offended party is not liable for the crime of bribery
because only public officers are liable for the crime of bribery. Therefore, the giver is liable for the crime of
corruption of the public official under Article 212.

But supposing a justice of the Court of Appeals does not want to receive the bribed money. In other
words, there is a refusal. He wants to give money to the justice for an application of a TRO, but the
Justice says, What do you think of me? Im honest. And, therefore, the justice did not accept. He did not
accept the money. What is the crime committed? Is there a crime? Walang crime yung public officer. He
should be rewarded for refusing to accept bribed money. So, what is the crime committed of the giver?
That will now become a crime of attempted corruption of a public official. If the money is not accepted, the
giver has the right to uphold the crime of attempted corruption of a public official. The public officer who
does not receive the money will be rewarded, if there is a reward. Wala namang naka-reward, eh.

Okay, now, lets go to another one. Now, when you are asked what is the difference between bribery and
robbery, yung bribery is always mutual. In other words the giver willingly gives and the receiver willingly
accepts. Ganun ang bribery.

There was one question that maybe through a crime of plunder which I will discuss later on. Kung ang
robber, lets say, if you are merely accosted by a peace officer and, therefore, you are not actually
committing a crime, di ba? Tapos sasabihin ng peace officer, Hoy, bigyan mo ako ng kwarta kung hinde
pa file-an ka ng robbery. But the person did not commit any crime. O, bigyan mo na ako ng kwarta, kung
hinde pa file-an kita ng kaso. Lets say on dangerous drugs. Then the poor boy says, Oh, Im afraid. Im
studying law eh, and thats not bailable. Can I give you money? Sige, bibigyan mo ako ng kwarta, kung
hinde, pafile-an kita. Then the poor boy gives the money because he is (suffering) that in case of robbery
will be filed against him or a crime or a charge will be filed against him.

Anong crime yon? Hindi bribery yun. That cannot be bribery. That will become a crime of robbery. That is
intimidation. I will file a case against you when actually you did not If you did not commit any crime, and
then it is only his version that he will file a case against you if you do not give the money, that is a crime of
robbery. The false charge will fall under the element of intimidation. That is one way of intimidating. I will
explain to you later on why that step is very important.

Now, in the meantime, yung sa bribery, well leave in the meantime yung provisions ng 213, 214, 215,
and 216. Lets go to malversation under 217 because I want to discuss after 217, I want to discuss the
crime of plunder that will be under (210).

Article 217 Malversation of public funds or property; Presumption of malversation

Now, sa 217, that is a crime of malversation. Malversation is committed by a public officer who has
custody of funds or property belonging to the government and misappropriates the same or converts the
same for his personal benefit. Or a crime of malversation is committed through abandonment or
negligence.

So, there are actually three ways of committing a crime of malversation. Number one, to misappropriate
or convert to a personal use. Or you allow a third person to commit the crime of malversation either by
abandonment and number one is through the negligence. Tatlo eh. So example. I am a treasurer. I
receive money as payment. From the first day, so that money now is entrusted to me. And therefore, that
money is under my custody. If I spent that money collected then I am liable under the first one. That is

4D 2007 70
the meaning of malversation, when you misappropriate or you convert the same for your personal benefit.
The other one is abandonment or negligence. You do not misappropriate for your own benefit. We do not
convert the same to your own benefit, but you allow a third person to commit a crime or to misappropriate
and not commit a crime. You allow a third person to misappropriate or you convert the money entrusted
to you.
So, the best example, in the one of the cases as with the bar exam two years ago. Yung government
official is assigned a government vehicle. So, therefore, that government maker is entrusted to that
government official and, therefore, he is an accountable officer in so far as the car is concerned. Ginawa
niya, he left the key inside the car one night. Umuwi na yung driver. Then later on, the driver when to the
garage, and then at 3 o clock or 4 o clock in the morning, he got the car because the government official
left the key inside the ignition key. Tinangay. Yun ang crime of malversation through abandonment or
negligence. Thats the meaning.

The government official or the accountable official probably did not misappropriate or convert the property
for this personal benefit, but allowed a third person to misappropriate or convert the money or property
belonging to the government through abandonment or negligence.

Now, who is the accountable officer under 217? Yung accountable officer is tasked by law to take custody
or the property or funds of the government in trust, in the meantime, and then to return or to remit to the
proper authorities the funds or property if required or demanded by the government agency concerned.
Thats the meaning. So, the janitor, therefore, is not an accountable officer because he is not entrusted
with money or property, and has a duty to remit or to return the fund or property required by the
government agency. So, thats the meaning of an accountable officer. So, a property, therefore, belonging
to the government malversed or misappropriated by a non-accountable officer is not liable for a crime of
malversation, only accountable officers. Okay.

Now, the other thing in that 217 is that there is an element of misappropriation or conversion. You cannot
prove the crime of malversation under the first form if you do not prove misappropriation or conversion
because what makes it a crime of malversation is the misappropriation or conversion of the funds
belonging to the government, di ba? So, if you have any guilty of a treasurer, lets say you collected the
amount of twenty thousand today. Nobody knows if you go to Air Force One tonight, Air Force One or
Pegasus or dun sa Pasay, University Belt or Pegasus. If you go there in the evening and then you use the
money of the government, nobody knows that you are using the money of the government eh. Because
the next morning, you can replace the money that you used in the previous night. So, you cannot tell if
that government official really used the money of the government, di ba? Because he can replace it
anytime as long as he has money to replace.

So, how will you prove then that a public officer misappropriates or converts it to his personal benefit, the
funds entrusted by the government to that accountable officer? The law said that if the government wants
all the accounting of the funds entrusted to him by the government, and there is a shortage in the funds
which he cant explain, then the presumption arises that he misappropriated or converted the money for
his personal benefits.

So, if you are in the government, and usually what they do in the government is that if you are a treasurer,
there is a regular audit, di ba? There is an audit team of the COA, Commission on Audit that when the
COA now audits you, most of the audits conducted by the COA are surprises. In other words, they will not
tell you when you will be audited. So, the COA now will go to the place of that accountable officer, and
then now they inquire to account the cash or the funds under his custody, and a shortage arises. Then
there is a presumption of conversion or misappropriation that is a required by law. That presumption is
only a prima facie presumption.

So, therefore, the treasurer now discovered there is a shortage of thirty thousand pesos, then the
presumption of misappropriation or conversion arises. And, therefore, the accused now, the person here,
the accountable officer will now have to rebut that presumption, rebut the prima facie presumption.


4D 2007 71
So, that presumption can be rebutted. So, in the other words, the burden of proof now that the
accountable officer did not misappropriate the money is on the part of the accountable officer. So, what
will you do is now explain, thats the meaning. The only way to rebut that presumption is that to explain
why there are shortages. If there is no valid explanation as to the shortages, in other words, there is no
justifiable reason why there were shortages, then that accountable officer will be liable for a crime of
malversation.
Pag sinabi niya ibalik mo nalang, di ba? Sir, ibabalik ko nalang yung kulang ko. What is the effect? That
will not cure. That is not sufficient evidence to rebut that presumption. If the accountable officer says,
Well, there is really a shortage, but I am now returning the money. That return of the money is an
evidence of guilt in the crime of malversation. That is not the way to rebut that presumption. The effect of
restitution or the return of money in the crime of malversation of the property, the crime of malversation,
and admission of guilt, the only affect there is that he is entitled to a mitigating circumstance equivalent to
plea of guilty or voluntary surrender. But that will not a rebut that presumption. Ang rebuttal ng
presumption dyan yung valid expenses.

For example, nagka-ano, nag karoon ng calamity walang ilaw, bumili ng baterya, in the meantime, ayun.
That will be a valid defense because that is an emergency spending or probably walang walang pambili
ng pagkain ng mga empleyado nasa remote area sila. They are in a place where there are no food or
what they have to buy. Ayun pwede yon no ha? Bat hindi ka mag explain because not all explanations
can be justified.

In one of the cases, I think, it is Quimzon versus Sandiganbayan. One of the cases in rebutting that
presumption is the giving of vale or advance salary. So, sabi ng treasurer, O, kulang ng twenty thousand
dito? Eh sir, pinabale ko eh. O,bakit mo pinabale? Kasi para walang pampasweldo. Is that a valid
excuse? Is that a valid act on the part of the treasurer to rebut the presumption, presumption that he
converted or misappropriated the same? In one case the Supreme Court said that is not a valid excuse.
Otherwise, if you allow that as a valid excuse, then nobody will be liable for a crime of malversation. He
would just say, binale eh di tapos na. Gagawa ka lang ng resibo eh, bale ng bale. Ang sabi ng Supreme
Court, if is not a practice of that government agency in giving vales or advance salaries, if it is not a
practice in the office of giving vales or advance salaries, then you can be still liable for a crime of
malversation. But if that has been a practice even before he became an accountable officer, and that is
already being practice in the office, that may be a valid excuse. And, therefore, sufficient to rebut that
presumption of misappropriation or conversion, okay. So, ayan ang malversation under Article 217.

There is another malversation in the Revised Penal Code, but that other malversation is not an element of
plunder. Kasi you will find out Im going to bribery muna, and then malversation, then in the meantime, we
leave the other commission, anyway, I will go up. So that you will understand what is the crime of plunder.

Republic Act No. 7080. An Act defining and penalizing the crime of plunder

So, lets go now to the crime of plunder under Republic Act 7080. Now, the amassing of wealth or the
accumulation of wealth in the amount of at least fifty million pesos should be done through a series of
acts or a combination of overt acts arising from any of the crimes provided for in the Republic Act 7080,
six predicate crimes. You know the six predicate crimes that include bribery, or receipt of any pecuniary
benefit by reason in part of the position.

So, one of the predicate prime is bribery. Then the other predicate crime is malversation or any act of
malversation or any act tantamount to a raid on the public treasury. So, in the other words, there are two
predicate crimes that are found in the Revised Penal Code and the Republic Act 3019. Ano yung
predicate crime na bribery? Receipt of any amount or pecuniary benefit by reason of position. So, we
have 210, direct bribery. Then we have 211, indirect bribery, then 211-A, qualified bribery. Then we have
the special the two special kinds of bribery under Republic Act 3019. Those are Paragraph B and C of
Section 3 of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. So, those
are limited to the first predicate crime.


4D 2007 72
The second predicate crime is the crime of malversation, which means that you misappropriated or you
converted your personal benefit, the funds or property entrusted to you by the government where you are
an accountable official or raid to be tantamount to a raid in the public treasury. That is also a part of
malversation, pinaganda lang yung raid.

Then the other predicate crime yung 3, 4, 5, receipt of shares of stocks or future employment.

Then the other one is fraudulent or illegal sale of assets of the National Government. Yung shares of the
stock, you know, it does not say if you are benefiting from the shares of stock. Nakalagay don, receipt of
shares of stock or future employment. Walang sinasabi, making money from the shares of the stock.
Unlike yung bribery talagang you make money out of it, eh. Yung malversation also, you make money out
of it. But yung shares of the stock, receipt lang, eh. Okay.

Then number three is - the other one is illegal or fraudulent sale of the assets of the government. What I
mean is that you declared that the property of the government is now for sale to the private sector. Then
by selling to the private sector, you made money out of it. That is illegal or fraudulent sale. Yan di ko
masabing binenta, ganun yun di ba? Government properties, there is no proof. Maraming allegations dun,
maraming kumita, diba? Never mind, ano naman yun eh. (Unintelligible) Then it would fall under this
predicate crime.

The other one is formation of monopolies among relatives, friends or associations of the public officials.
Of course you know what is monopoly. You control a certain industry. You make money of it, formed by
your business associates, friends, partners or even relatives.

Yung Paragraph 6, yun ang catch-all provision yung Paragraph 6. Receipt of pecuniary benefit
detrimental to the interest of the Filipino people and the Republic of the Philippines. Hindi binanggit kung
ano yan, anong crime yan. Basta sinabi nya receipt of pecuniary benefit by reason of public position
detrimental to the interest of the Republic of the Philippines and the Filipino people. Yun ang tinatawag
nilang catch-all provision. Okay.

Ngayon, ang tanong nila, can you be convicted of a crime of plunder even if the money or the funds
involve public funds.

Yung bribery - ano ba ang bribery? Where does the money come from in the crime of bribery? Public or
private? Private, eh. Receipt of money by means of public position. Where does the money come from?
Receipt of pecuniary benefit by reason of your position. Where does that money come from? From the
government? No. From private funds yun, from outsiders. Its only a malversation when the money should
involve public funds because you cannot malverse a private fund. You need to malverse public funds.
Yun ang pwede, public funds. Okay.

So, if you amass, therefore, an amount of more than 50 million pesos. So Mr. General, they conducted an
investigation and was found to have an ill-gotten wealth of more than a hundred million pesos. You know
how to discover ill-gotten wealth? What is ill-gotten wealth actually? When the wealth is grossly more than
out of proportion rather of your legitimate income, any amounts beyond your legitimate income will
question for ill-gotten wealth. There is a presumption of ill-gotten wealth under the law of Republic Act
3019, The Anti-Graft and Corruption Practices Acts.

So any amount thats out of proportion for your legitimate income is called ill-gotten wealth. If the ill-gotten
wealth of the public official is more than 50 million pesos, is that government official liable now for the
crime of plunder? No, he is not liable for a crime of plunder.

The amount that you discovered should have come from a combination of overt acts or series of
combination of overt acts from any of those crimes mentioned by law. So, the amount of 50 million pesos,
more than 50 million pesos should have come from the series of acts from any of those predicate crimes
mentioned by law should have come from bribery, malversation, shares of stock, illegal sale, receipt of
pecuniary benefits or even creation of monopoly among friends or his associates.

4D 2007 73

Sir, in the case of Chairman Abalos, do you mean there is pecuniary benefit

You have to prove that he has more than 50 million pesos.

But he might be

No. You can prove that. If his ill-gotten wealth is more than 50 million pesos and then the amounts were
derived from the series of acts coming from any of those predicate crimes, he may be liable. But, you
know, there is an issue there kasi eh. He knows that kasi a amassing of (unintelligible) series of acts or
combination of overt acts, the series of acts or combination of overt acts.

The problem there is that will you be liable a public official will be liable if there is an accumulation of
more than 50 million pesos for a series of acts, but the amount was derived from a single transaction? So,
one was awarded a contract, he gave the amount of 100 million pesos in order that contract will be
awarded. That is a crime of bribery, hindi ba?

Question: Is he now liable for a crime of plunder because the act does not involve a series of acts? Kasi
nakalagay sa ill-gotten wealth, if the ill-gotten is the amassing or accumulating of at least 50 million
pesos, di ba, through series or combination of overt acts, therefore it involved several acts, and then
through these acts, theres an accumulation of more than 50 million pesos. Yun ang anothats the
problem. So, something like that.

Supposing you are with the Central Bank and then you brought gold bullion, the amount the value of
which is 100 million. You are the person in custody. So, you are the accountable officer of Central Bank.
In your custody is the gold. At one instance, you brought out several gold bars worth 100 million pesos.

Question: Are you liable for a crime of plunder because there is only one act producing probably more
than the amount of 50 million pesos? Sabi nila hindi ako covered, eh. Ang sabi ko you know the law
why the law said a series of acts? Because it was intended really to accumulate that amount through the
years because if you indicate in the law what act - there is a bribery or malversation of 50 million pesos
only in one act. And what will the banking officer do? Hindi tatanggap ng 50 million, hatihatiin niya. So,
ang purpose na inilagay sa series of acts, so that it will cover the accumulation of amounts that might take
place in two or three years. Then kung ilagay yung single amount yan, hahatiin niya. Thats why they said
series of acts. So, he did not anticipate that by saying series of act that might not include a single act. Ang
sabi ko, thats include single act. Kasi meron na dyan, dun sa BP 21 by analogy.

In your B.P. 22, the only ground for evaluation of .P 22 under the law is drawn against insufficiency of
funds. The law does not say that you also violate BP 22 when the owner of the check is account closed,
eh. So, si Judge sabi niya, Hoy, hindi included ang account closed yan. What is not mentioned is being
excluded and the law is very clear, drawn against insufficiency of funds.

So, they acquitted the accused on the ground that he cannot be convicted because the law does not
provide that if the reason of the owner is account closed, you are liable for violation of BP 22. Ang
nakalagay lang dun, eh, drawn against insufficiency of fund. Pagdating sa Supreme pinagalitan yung
judge, eh. Anong sabi, ikaw naman judge ika, yung drawn against insufficiency of fund may account na
yan, di ba, kaya lang kulang ang pondo. Ito account closed na nga wala nang account, hindi pa covered,
thats even worse. Pinagalitan, so covered na nga yung account closed.

When do you know apply that question? If series of acts are covered, hindi ba, that involved reasoning.
The act is only a single act. You have accumulated more than 50 million through the years, eh, covered
ka. That was only one act of amounting to more than 50 million pesos is not covered, with more reason
that should be covered, hindi ba? Okay.

The other question is whether or not robbery is covered. Where Republic Act 7080. Tingnan mo kung
merong dyang predicate crimes. Meron bang robbery dyan? Karamihan mutual, eh. Hindi ba thats what

4D 2007 74
I was telling you? Ano ang difference ng bribery atsaka robbery? Robbery extortion at saka bribery,
anong sinabi ko?. Yung bribery is a mutual, eh. Yung tao nahuli willingly gives and the officer willingly
accepts, eh. Ano ang robbery? Yung giver is practically forced to pay, eh. Because plunder is a
conspiracy law. What I mean by conspiracy law is that all those who actually participated may be liable
regardless of the amount involved, eh. Ngayon, kung pinilit kang ibigay mo yung kwarta, yung nagbigay
ba conspirator ba yun? Hindi ba?

Supposing if one is forced to give money, does he become a conspirator under the principle of
conspiracy. No, because he does not willingly perform an act. Ang conspiracy, all perform their acts
willingly. Include mo ang robbery, the giver does not give the money willingly because he is actually
threatened or intimidated to give the money. So, how could he be liable?

Its like this, lets say A, B, C, and E you give me the total amount of 60 million pesos in a crime of bribery.
If that is a crime of bribery, the one who gives the money is liable for a crime. The crime is what?
Corruption of the public official under Article 212, di ba, in a crime of bribery. Now, if the persons who give
the money in a crime of plunder, lets say it should not have been a crime of corruption on a public official
because the amount does not exceed 50 million pesos. Now, if the amount exceeds 50 million pesos, the
person the public officer is no longer liable for bribery. He may be liable for a crime of plunder because
there is already an accumulation of more than 50 million pesos.

The giver is not liable for a crime of corruption of a public official. He becomes a conspirator in a crime of
plunder. Therefore, if in the crime of robbery, the giver was practically forced to give his money, can you
charge now the giver as liable for the crime of plunder when the money is not willingly given? Kaya hindi
pwedeng robbery, eh. Because the giver must also may be liable as part of the series of acts. Eh, kung
pinilit mo yung robber. Pwede bang - will you file it? Will you file a case against him or plunder? The
money was not willingly given. Yun, maraming questions ka doon kung ang iba'y nagsasabi, covered daw
eh. We dont know if it is covered. Bawal yan under the six predicate crime. Or even if you read the
catch-all provision, receipt, eh, of pecuniary benefit, eh. You receive, in a crime of robbery, you do not
receive eh. You unlawfully take, eh. Yun ang diperensya ng bribery at saka robbery. Yung bribery,
mutual. Yung robbery, you unlawfully take because it is against the consent.

Then the other issue raised in plunder even if anticipation is that the question will (appear) in the bar
exam. You know that, di ba, anim na predicate cimes yun? Ill give you an example.

Supposing five persons or three persons gave 20 million each, di ba? You gave me 20 million, 20 million,
20 million. In so far as Im concerned as the public officer, I am now liable for a crime of plunder because
the amount already reached more than 50 million.

But about the givers? He only gave 20 million, eh. 20 million, 20 million. Will they now be liable for a
crime of plunder? Of course, they will be liable for the crime of plunder as long as they come from the
same predicate crime. What does that mean? Yun ang kaso ni thats was the raised in the case of
Senator Estrada, Jinggoy, eh. Kasi siya, in the information he was charged with the crime of plunder, but
in the evidence he did not contribute. But there is no showing that he got more than 50 million pesos as
far as the conspiracy. Two million lang sa kanya, eh. So, kinuwestyon na nya ngayon yung provision.
How could I be liable for a crime of plunder when it is submitted that the extent of my participation is only
up to 2 million. Anong sabi ng Supreme Court, liable ka because that is part of the series of acts.

If all the amounts came from a single predicate crime of bribery, lets say 20 million, 20 million, 20 million.
Lahat kayo liable kayo ng plunder because those are parts of the series of act and they come from the
same predicate crime. But if for example, the 40 million came from the two, but the 50 million did not
come from they are probably shares of stock. Shares of stock worth 20 million was given to me. It is not
bribery, but I receive shares of stock worth 20 million.

Question: Will I be liable for a crime of plunder? Of course, because there is an accumulation of more
than 50 million. Eh, pano yung kwan yung tatlo, they cannot be liable for a crime of plunder? Why?
Because one of the amount of 20 million did not come from the same predicate crime. The amount should

4D 2007 75
come from the same predicate crime, so to speak. Hindi pwede yung iba lets say kung 10 million lang
yung participation, yung isa, different predicate crime pagkatapos ipapataw mo doon sa iba yung wala 50
million, he will be treated separately from the others because they do not come from the same predicate
crime. Yes?

So, when you say predicate now, it is involved if there is a

There is a transaction, yeah. Its a bribery or any receipt

As long as it's imposed under the generic bribery, okay yun.

So, even when you saw somebody who did a - to bribe on official about five years or ten years ago,
pwede yung madawit pero yun eh too late na

Puwede yon basta wala pang crime na chinarge, puwede yon. That is the best part of the law. Because
the law does not show any limitation as to the accumulation. Even if you already out of the office, puwede
yan.

Yes? Sir, actually two questions. So, just for clarification, it does not have to be a series of acts, just one
act. I gave you 50 million or 52 million in one act, we will be liable for plunder? The second question is

There is no decided case, but that is my opinion by reason of or by analogy, number two.

Sir, the second question is A, B, and C. A contributed, for example bribery, A contributed 40 million and
then the other one

20 million, probably shares of stock for monopoly?

No, sir. Say, bribery.

All of them liable.

Sir, the other one is wanted, how can it be liable?

Liable yon.

As long as the .

the amount of 50 million.

Kaya nga ang moral lesson diyan, if you are a public official or you are a giver of the bribe, thats why
nahuli na si Jhong, tanungin mo muna iyong public official. Sir magkano na na-accumulate mo? Pag
sinabing 40 million, tama na ang 5 million sa iyo para wala ng pumalag o para hindi tayo ma-plunder.

Sir, what happened to the case of Jinggoy in the plunder?

Okay, anyway since you asked that question, anyway, hes acquitted. The problem with the evidence is
that Mr. Chavit Singson admitted that when his father, former President Erap came to know that he got 2
million in Bulacan, the father got mad at Mr. Chavit Singson. Why did you give my son? By that
admission, he is not a part of the conspiracy because he did not know. He was on his own. Okay.

Problem is that, why is it - he must be convicted of the crime of bribery. The problem is that he was a
mayor in San Juan. But the alleged amount came from Bulacan, so he was given money in Bulacan.
Then he could not have delivered the money by reason of the position because his position is that of a
mayor in San Juan. Thats the problem. But you know, when youre in position, hindi mo maaano eh. In

4D 2007 76
fact, the bail was granted by Sandiganbayan. The Supreme Court upheld our decision because of that.
And then the prosecution did not anymore submit additional evidence.

So, sir, Jinggoy could not be held accountable.

It is already up to him. He can be liable for illegal gambling or maybe in benefiting or profiting from
gambling if they want, but not in the crime of plunder because the evidence do not show it. Kasi inamin
mismo ni Governor Singson that when the father came to know that he had 2 million in Bulacan from a
certain Viceo ba yon? Si Viceo ang gambling lord. The father got mad. Bakit mo binigyan iyong anak ko
hind nya alam ito, gago ka pala eh sinabi kay Chavit. What is the meaning of that? Walang conspiracy.
Because the principal actor did not know that somebody was So, in other words, sumisingit lang
marahil.

So, we have to acquit him of that reasonable doubt. Probably, may kaso, but the problem is the evidence
does not show. Yan ang mahirap kasi laging may excise tax. When you come up with malversation, then
it must be really proven that he misappropriated or he converted. On the evidence na rin, anyway, off the
record ano, anyway, acquitted naman siya dun, so we can discuss it now because there is also judicial
acquitted siya dun sa ano. They acquitted him for two predicate crimes, the excise tax, and the other one
is the Velarde account.

The Velarde account is not a predicate crime. Di ba nakalagay sa predicate crime, opening an account
used as receptacle for ill-gotten wealth is not covered as a predicate crime. That is only a circumstance to
prove that a crime was committed. I-chinarge sila for the crime of plunder for opening in unauthorized
account. Opening in unauthorized account is not a predicate crime. The other Velardo account was only
used as a receptacle as a depository of the illegal amounts. Walang plunder dun. But they used the
Velarde account only as a proof of there is really an account where the amount of 189 million that came
from Belle shares was deposited. Doon naman sa excise tax, kasi we acquitted him beyond reasonable
doubt because kasi noong nag-deliver si Atong Ang daw doon sa loob ng bahay, Mr. Singson was
outside of the house.

Under the he did not actually know, there was really money delivered. Pag sinabing may ano, nag-
deliver doon tapos noong umalis na siya, Gov, tapos na. Anong malay mo kung binulsa na nila yun.

The other one is that he said that there was 130 million pesos. Hindi kakasya ang 130 million sa apat na
baskets. Hindi kakasya. What happened there that there was only a withdrawal of 90 million. Kasi
talagang sinundan namin yong paper trail eh. The amount that was deposited in Westmont Bank or
Equitable Bank under the name of the sister of Atong Ang came from the excise tax and also the 90
million. But what was withdrawn from the accounts of the (crooks) of Mr. Atong Ang was 130 million. So,
iyong 130 million hindi naman naman iyon ang dineposit doon sa kapatid ni Mr. Atong Ang. That was the
amount of 90 million that was allegedly delivered to the house of the former president. May kulang ng 40
million. So, kung 90 million ang dineliver niya, kasya yon. Ngunit pinipilit 130 million, talagang hindi
kakasya. Pumunta kami ng Central Bank ako pa ang naglagay. Hindi kakasya ng 130 million sa apat na
yon. 90 million kasya. So, iyong 40 million, you make your own conclusion kung saan nagpunta iyong 40
million. Maghirap magsalita, di ba?

And then when it was delivered, Mr. Chavit Singson was outside of the house. It could might have been
true. But, unfortunately, you cannot speculate. There must be an evidence that - that amount was actually
delivered. That was the actual amount that was also delivered. Wala siya doon eh. Sinabi lang pumasok
sa bahay, dineliver. Pagkatapos doon hindi naman niya tiningnan kung ano ang laman ng karton. I just
stepped in, tapos, puwede ba yon? Thats the problem with the but he is charged of malversation of
excise tax.

One of the issues raised by the lawyers of Mr. Estrada is that in that information for plunder because they
are separate crimes, that is what I was saying a while ago, then youre charge and accused with the
crime of plunder with all the predicate crimes in one information. Because the amassing of wealth or
accumulation of wealth should refer to a single crime or single predicate crime. Ang ginawa nila hinalo-

4D 2007 77
halo nila and then now alleged that crime of plunder was committed. Hindi puwede yon eh. Yan ang
contention. Totoo yon baka hindi puwede yon. Because you will be charging the accused with several
crimes in one information.

But the problem is he entered a plea of not guilty. So, if there is a defect in the information, na-cure yon
because even if there are several charges in one information, and you enter a plea of - you can be
convicted of the crime alleged. Kasi dapat yan kung predicate crime ng bribery isa lang yon Kasi you
know why the law also says so because there are six predicate crimes. It will be easy to charge a person
with a crime of plunder kung yong anim ilalagay mo sa isang information.

So, 10 million pupunta sa malversation, 10 million sa bribery, 10 million sa shares of stock, lahat lahat
yon. Di more than 60 million na. But the amassing of illegal or ill-gotten wealth will prove to come from no
longer a combination, kasi ang combination of series of acts is a pattern. Hindi na puwede yong lahat
yon tapos more than 50 million, and then one crime of plunder. The intention there is that the series of
acts pertaining to that is the same predicate crime.

Ang ginawa nila i-binablock nila sa isang information. But, sabi nila there is no problem because even if
you take one from the other, it is will be still more than 50 million, iyong jueteng 590 million, iyong Belle
shares is 189 million. It would have been different if iyong tig 10 million lang lahat lahat, can you lump
them into one information? Then when the amounts came from different predicate crimes? Iyon ang
magandang question. But, all the amounts are more than 50 million. I do not know. What I heard that he
might be applying for amnesty according to his papers.

Wala naman bumabatikos sa amin, sa Tribune lang. Sa Tribune theyre always attacking us, but in the
Inquirer di naman ano? Sabi sa Inquirer mangitim siya dun eh! Lahat yan ginagawa sa plunder.

Any way, it was a job that talagang mahirap. I just kept smiling and bringing jokes, but deeply with
meaning. Because really I could my wife could not sleep, and yet my children. They were also
personally affected since sometimes I could not eat in the morning over that mistake. I wake up at 5
oclock in the morning then I jog. Then I go to sleep at 3 oclock or 2oclock, talagang mahirap. Not
because of the threats, but here everybody is looking at you, and then sabi nila kung ako daw baka i-
acquit ko kasi they were reading my mind. Kasi my actuations in the court room, in court cases, Im
always partial to the accused. Sa actuations ha, but not necessarily I acquit a lot of accused. You know,
when an accused is already accused, down na down na yan. Huwag mo na pagalitan. Huwag mo ng
pagalitan ng pagalitan. Lahat ng gusto nya kung puwede ibigay mo na. Anyway, co-convict mo naman
eh.

You know, thats my point. You know, accused has been mad at me. Wala, kasi thats my ano.
pinapatawa ko pa nga sila. In the court room, nagtatawanan kami. Kasi pag decision naman sa iyo talaga
hindi ba? Ano lang be very accommodating in two months kasi baka ganito, i-acquit natin, ganyan. So
they misinterpreted my actuations. Parang ganun din, para kong pinapagalitan iyong mga prosecutors.
You can just imagine, they want him to he should be prevented from professing his own innocence
outside of the court room. Meron ganun. Kini-question nila yong mga pronouncement outside of the
courtroom, na Erap is not guilty, Im innocent. Hindi daw puwede yon. Sabi ko anong rule yan? Even if the
accused is already convicted, he can still plead innocence. Kahit na patay na nga iyong mga nakakulong
for example, nandito hindi nila inaamin, innocent daw sila eh. Tapos you prevent it, puwede ba yon?

You prevent him from talking that he is innocent. So, I think thats already too much. But, I can prevent
you from talking when evidence is strong. The prosecution cannot claim that the evidence is strong and
not sufficient to convict. If the case is not yet finished, we cannot do that. Because the prosecution has
no right and unlike an accused he has the right to be presumed innocent from the very beginning, until
the end. But the prosecution walang right na ganyan. Kaya ang prosecution hindi puwede magpapa-
interview. O ganito ang ebidensiya namin, malakas, mako-convict. Yan ang bawal. That is sub judice,
there is contempt. Kaya ako kinakatakutan nila, ako matapang doon. When it comes to that, matapang
ako. Pero pagkatapos naman, magkakaibigan. Ganun lang naman, di ba? Anyway, tapos na rin.


4D 2007 78
There were amounts deposited in the Velarde account. I think it will go probably to 3.2 billion, malulula ka
eh. That amount stood at 3.2 billion. 3.2 billion, but the money they I think they said it was only 2.9
billion. The problem there is that the amount deposited was not proven to be ill-gotten wealth. Kasi may
allegation there were several deposits made, but they could not prove where those amounts came from
and why were they there.

Some of the amounts probably came from the elections. Kasi sabi ni Ang, kasi pag natalo ka daw sa
presidente, yong mga Chinese pati mga kamag-anak mo pag dating ng election nagbibigay pa yan as
contribution. Pati nga contribution tayo. There were legitimate businessmen who are depositors. But they
did not prove that this came from any of the predicate crimes, you cannot audit. Only those that are
proven to have come from the predicate crimes can be forfeited. I think they know they have a hard time
to prove it or validate. Mahirap naman kung ito gallingI think there was an amount coming from Mr.
Pangilinan, 20 million. He is not a gambling lord. He is not likewise. Mga political contribution yan. So,
probably they were afraid to investigate further baka lalabas lang na political contribution yon so they did
not any more present evidence to that effect.

Anyway, its not covered naman ang political contribution. It could be different from the money laundering,
but at that time wala pang money laundering. Yon ang problema doon. So, they did not prove any
because it was only 185 million was confiscated. It was a big amount, umabot ng almost a billion,
unforfeited, almost one billion including the Boracay mansion. The Boracay mansion is worth 500 million.
But ang problema kinanibalise na yon. Ng mga addict. Yeah, I think so. It was constructed with the
amount of 300 million daw. Biro mo meron Boracay dun, yung buhangin galling pang Boracay, tapos ang
swimming pool my waves pa. Tapos lahat ng kwarto carpeted. Ilan ang area noon? More thanalmost
one hectare. I think six thousand square meters. Bakod lang nun baka 10 million na eh . Oo bakod lang,
ang laki eh, ang taas. But the problem is talagang nagkatalunan na. Not because you were the one
convicted, di ba?

So, anyway well continue next Wednesday. Your assignment on Wednesday is still the crimes committed
by a public officer. Makinig lang kayo, you know already my style, yong mga examine galing sa lecture.
Iyong hindi nakikinig at nag-absent yon ang mababa. I know those who do not get high grade in the
examination, kasi parating absent. You do not attend and then you do not ask your classmates eh
mahihirapan kayo sa examine kasi I do not like to fail students. I only get questions from those that I give
as lectures or recitation. Okay, so the same assignment.

We are not yet through with crimes committed by public officers. I always counted it with bribery and
malversation and then what is Paragraph B and Paragraph C or Republic Act 3019 Section 3 in order to
know what is the crime of plunder. So, after the crime of plunder well go back to the crimes committed by
public officers and then well take up Republic Act 3019 . We will finish 3019 next Wednesday. If it is not
finished - I think well be finish rather then you start reading 246 to 266-A, iyan ang pinaka-importante 246
to 266-A. Lahat ng provisions diyan i-memorize nyo. Wala akong lalaktawan diyan 246-266-A. Parricide
except in 246, parricide, murder, homicide, infanticide. Then under exceptional circumstances, abortion,
intentional or unintentional, serious physical injury, less serious physical injuries, intentional mutilation,
illegal discharge, i-memorize nyo lahat yan. And then crime of rape under 266-A. Yan tatapusin natin.
Kelan ba tayokelan bang last na sinabi ko,Wednesday?

Sir,mga nine meetings pa including iyong isa ngayon.

Including today?

Sir, yung Wednesday. Wednesday?

Hindi marami pang special laws dyan.

Sir, I remember po na sabi nyo po youll continue with Dangerous Drugs.

Ah, di ko ba natapos? Ano ba natapos natin sa Dangerous Drugs?

4D 2007 79

Sir, possession.

Okay, sige. Dapat ni-remind mo ako kanina. May tinanong diyan sa Dangerous Drugs, yun nga, ang layo
naman ng tanong. Whether or not illegal use of drugs can indeterminate sentence law is applicable. Ang
layo talaga ng tanong.

Under Section 15 may rehabilitation ang penalty dun. Hindi ba inisip non? This student should know the
penalty of illegal use, hindi ba? Whether or not he is entitledang layo naman ng tanong. Probably his
question was - the question should have been whether or not indeterminate sentence law is applicable to
the Dangerous Drugs Law. Mabuti pa ganun na lang tinanong, hindi ba? Okay, so thank you ha. Iuuwi ko
ito.


We will continue now the offenses committed by public officer. I discussed 217 last time because of
Republic Act 7080. The liable source were discussed, bribery 210, indirect bribery 211, 212, qualified
bribery and then you have corruption of public officials under 212, and then we also took up Section 3
Paragraphs B and C of Republic Act 3019, because Paragraphs B and C of Section 3 of Republic Act
3019 are also in the form of Direct Briberies, hindi ba? And then, we went to Article 217, The Crime of
Malversation, which can only be committed by accountable officers, not all public officers. Theyd be
liable if they talk about the evidence of malversation, di ba? Then, they allow a third person to commit a
crime of malversation or negligence or misappropriate or convert to the person of benefit in the hands of
property entrusted to you.

Now, before we go to the other Articles because we are talking about malversation, we jump to Article
220 so that we will know the distinction. The crime of illegal use of public funds, 220. Im not following
the sequence because I want that you understand all these crimes. Kasi mag-pipinsan yan eh. Lets' say
I don't like bribery, 210, 211, 211-A, then I jumped to Paragraphs B and C of Section 3 of Republic Act
3019 and then I jumped to 217, Private Malversations, then when we understood already all these crimes,
we went to Republic Act 78 on the Crime of Plunder because these are primitive crimes, hindi ba? Okay.

So, what is Article 220? 220 is Illegal Use of Public Funds. But this is popularly known as the Crime of
Technical Malversation. This is popular and known as technical malversation, illegal use of public funds.
But this is very different from a malversation in 217.

Because in 217, money property is either misappropriated or inverted. And therefore, the government
loses the money or the property to other persons. But when you talk of illegal use of public funds or the
crime of technical malversation, the government does not lose money. It does not lost any property or
money involved. What happens is that there is a diversion of the funds of the government for a purpose
other than to which it was intended by law or by ordinance. It was very important. And all did not have a
law or ordinance, 'no? It is the illegal use of the public funds, therefore funds used for a purpose different
from what it is intended by an ordinance or by law.

But not all diversions are technical malversation under 220. What is important is that there must be an
ordinance or a law. When we speak of ordinance, that does not mean a municipal ordinance, city
ordinance, or a provincial ordinance, an ordinance is in the form of a law but only for 'di ba ordinance is
a law, eh. But only what? Local application, hindi ba? City ordinance of Manila. Local application
yan. But when you speak of law, required to have but then you are talking about The General
Appropriations Act. The law that is contemplated by 220 is the General Appropriations Act, and what
does that mean?

When you operate the, you know, you operate the agencies in the national government, you operate
based on the national budget. The budget is what we call the General Appropriations Act. So, probably,

4D 2007 80
you will get the papers that the budget is delayed. There are so much debate in congress, in the senate.
Nagkaroon sila ng bicameral. They could reconcile their differences, and therefore, there is a delay in the
approval of the budget.

Now, if there is no delay, then the resolution of the congress and senate will now go to the President.
And then if that is signed by the President, then it becomes the General Appropriations Act. It is actually
a law because it passed through congress and senate and then approved by the President. And what
happens in relation to When where it will now be technical malversation for illegal use of?

If for example report in the Sandiganbayan. The Sandiganbayan will get overall budget. Those are the
other reforms. So, you have items for salaries. Say, you have items for impeachment. You have an item
for maintenance. So, before the fiscal year begins and then the budget is approved then you are
governed by the budget that is approved, which is part of the law that is the General Appropriations Act.
If the amount is allotted to us is let say, P20 million, thats for salaries. Huwag na lang Sandiganbayan
because they do not do that, in another government agency.

So, there is P20 million allotted for salaries, di ba? Then the head officers in the middle of the year sabi
nya, Magkano ba ang naiwan sa employee's salary natin. Eh sir, mayron pang P10 million. How
much do we need up to the end of the year? "Sir, baka P5 million lang eh, ang maubos natin." "Okay,
are you sure that we only need P5 million up to the end of the year?" "Yes, Sir." So, may surplus ka na
P5 million. Sabi ngayon ng internal office, "Okay. Gamitin mo yang P5 million. Bumili ka ng Camry,
tatlo. For the use of the office."

So, you use now the money for salaries of employees for a purpose different from what it was intended.
The General Appropriations Act allotted P10 million or P20 million for salaries. Therefore, that amount
should only be utilized for salaries. If that amount allotted by law is used to buy, for you to be used for
other purposes others than what was intended, that is a crime of technical malversation. But it should be
provided for by law of ordinance.

Now, one of the cases, the accused was charged with malversation under Article 217, 'no? He was
charged with misappropriating or converting to his personal benefit funds belonging to the government.
But during the trial, it was found out that is was not actually Article 217. It was actually a crime of
technical malversation that he committed. Question: Can he be convicted for technical malversation? Or
supposing, he was charged with technical malversation but during the trial it was actually
misappropriation, or conversion to his personal benefit, and therefore malversation under 217,
misaversion. Can he be convicted of technical malversation if what is charged in the formation is
malversation under 217? So, people said no.

These are two different crimes. They are not the same. As I said, usually, the crime of illegal use of
public funds, walang nawawala sa gobyerno. Misuse lang yan, misuse. Walang nawawala. As a rule,
ha. May nawawala because a general rule. Walang nawawala as a rule. They are may be instances
where crime of technical malversation can only be committed. Yung kotse ng baranggay official for my
use, di ba? So, I have a vehicle for my use.

So, the purpose why a vehicle in the budget is purchased is for the use of a government official. If that
car is used by other persons, your family, they are members of your family for personal use, liable ba yan
ng illegal use of public funds. That is technical malversation. Kaya ako di ako nagpaplaka ng pula. Di ba
ung pula government car? Iyong plaka ko dalawa eh. Pwedeng may pula pwedeng itim. Pag pumunta
sa palengke, itim. Technical malversation yan. When you used the property of the government for a
purpose other than it was intended, that is technical malversation under Article 220. Hindi malversation
yan sa Article 217.

But if you are charged with malversation under 217, let say, you are charged with misappropriating or
converting to a personal benefit, and then what was proven in the trial is not you allowed the third person
to commit a crime of malversation either through abandonment or negligence, pwede kang maconvict. Di
ba tatlo ang manners of committing a crime of 217? The misappropriate or you convert to your personal

4D 2007 81
benefit. Allowing a third person to commit a crime of malversation through abandonment or through
negligence. Tatlo yan eh, di ba? Okay.

You are charged with misappropriating or converting in the information. But what was proven is that you
allow the third person to commit the crime of malversation or through abandonment, pwede kang ma-
convict. Beside, even if there is a variance of the proof to establish and information as long as it falls in
any of the manners of committing a crime of malversation in 217, pwede kang ma-convict. But not when
the charged is malversation under 217 and what is proven is technical malversation. Hindi pwede yun.
Hindi pwede because they have different elements, okay? Technical or illegal.

Now 213, we now go back to 213. Parehong sa 213, there are actually two offenses that may be
committed under it. Iyong paragraph 1, bihira lang nacoconvict yan, eh. 'Yung speculators, 'yung illegal
escapes committed by a public officers, ano? Between the contract or transaction may be broad yan eh.
But if you look at the title of 213, it is actually false committed that is falsification is. Sa paraghraph 1, ano
yon? 'Yung mga speculators yan o 'yung mga ano mga yun logos or in charge of supplies. Ang
gagawin nya, i-overprice, yan paragraph 1, 213. Kung hindi naman, hindi nya muna bibilhin yun ngayon.
Di pa mababa yon, ano ha? "Pare huwag muna natin bibilhin ito, ibenta mo na lang pag tumaas ang
presyo." Iyan 213 yan, paragraph 1. That is brought against public hearing or yung speculators, let say,
properties of the government, di ba? Bebenta nya. Bago ibenta, bibilhin nya muna yung katabi ng
government property. Bibilhin nya lahat yun. Magspeculate sya, then sells the government property. If
the property of the government is sold, tumaas na presyo. Aba iyon pala, sa kanyang katabi. That is also
punishable under paragraph 1 of Article 213.

But the most popular crime under 213 is the crime of that sometimes you read or hear, the crime of
illegal exaction. Illegal exaction is found in paragraph 2 of Article 213. Pag there are three ways of
committing the crime of illegal exaction. Ano yun? You demand payment higher than what is required to
be paid. Hindi direct bribery yan. That is not direct bribery because in direct bribery, may exchange, eh.
Ito Sir, magkano babayaran ko? P20,000. Yun pala P18,000 lang babayaran. So, he's demanding
more than what is required of the tax payer who pay. Yun illegal exaction.

Number 2 is the most important one, the refusal to issue a receipt. You deliver it. Refusal to issue a
receipt is a crime of illegal exaction under 213.

Then number 3 is you require somebody to pay other than money. Let say, 100,000 ang babayaran.
Hindi, huwag mo na kong bayaran ng 100,000. Ibayad mo na lang yung Mercedes Benz mo. Wala ng
gulong. You demand payment other than money. Illegal exaction, tatlo yan eh. Tinanong sa bar exams
yan eh. Hindi nya alam kung refusal to issue of a receipt is a crime of illegal exaction. May mga hindi
nag-i-issue ng receipt. Pag sinabi nila ayaw mo ng receipt, "Oy, 213 yan. Illegal exaction yan." Oo,
para mag issue ng resibo. Baka manalo kayo ng P1 million sa BIR, di ba? You demand a receipt.

You just read 214, 215 and 216. Yung prohibited transaction and ___ (unintelligible) the government or
just intervene. You just read them. Walang problema dyan. Just memory work. 214, 215 and 216.

Then 217 is malversation. We'll jump to 218. Kaya sinasabi ko sa mga kaibigan ko, Ang hirap
magtrabaho sa gobyerno. Tingan mo ang crimes ang dami. Ano ang 218, 219 failure to render, naku.
You leave the country, you do not render an account. You resigned on your work, you did not render. In
other words, failure to render an account is merely saying, Hindi ka clear. Wala kang clearance. Go
abroad. Dapat may clearance ka. Thats the meaning of failure to surrender an account when you go
abroad. It is merely a failure to account or clearance pero sobra.

Tapos pag ano pag - you are an officer. If you assume the position, even your term has not yet started,
anticipating, pag holding of public office. Dapat bukas ka na mag-start ng trabaho mo. A day before,
nagpunta ka dun, nagmando-mando ka dun. Pirma ka ng prima, ano? Anticipating, the holding of a
public office. Tapos pag nandyan ka na nagta-trabaho, you leave your work without any authority,
abandonment. And then after your term has expired but you do not want to leave your work, ano?
Prolong, 'di ba? Ang dami, eh. Anyway those are found in Article 223, 224, 225, 226 and 227.

4D 2007 82

Lets go to 223, 224, and 225. Yung 223 that should be read together with Article 157 and 158 sa 223,
224 and 225. Anyway, so, I was telling you last time that when an accused charged with a crime, and
there he is now in detention. If he escapes from prison, what is the crime committed by that person
arrested for undergoing trial? Therefore, he is a detention prisoner. Wala pa, eh. A detention prisoner
that means that he is facing charges of non-bailable offense. He escaped during the trial. What is the
liability of the person who escaped during the trial? That is not evasion of service under Article 157.
Evasion of service will only take place if the accused escapes from detention when there is already a final
judgment of convictions. 'Yun ang evasion of service sa 157.

Now, when the person is not yet convicted and he is only under detention, and he escapes, walang crime
yun. Walang crime of that person escaping. The only attempt of a detention prisoner escaping won't be
those who find the rules of criminal procedure. He might lose his right to appeal later on if he is
convicted. Hindi ba? Ganun ang detention prisoner, hindi ba?

Now, if the person evaded his sentence, that means that he escaped when judgment has already become
final executory, with the consent of the public officer who is logging him, then the law that is violated is the
first part of paragraph 1 of Article 223, consenting to escape of a person evading his sentence.

Now, if the detention prisoner has not yet been convicted, he escapes. He escapes and therefore with
the consent of the jail guard, yung jail guard ang maging liable. Not the detention prisoner who escaped
because he has not yet been convicted by final judgment. The jail guard dahil in-allow nya the detention
prisoner to escape, although the judgment is not yet become part of executory, is likewise liable for
violation of Article 223 under the second part, 'yung paragraph 2.

So, 'yung paragraph 1, consenting to the escape of a person already convicted of a crime. Yung
paragraph 2, consenting to the escape of a detention prisoner who ___ (unintelligible) judgment by final
conviction. Liable yun.

And then 224 is of course through a negligence that means that he did not consent to the escape of the
prisoner. But through negligence, marahil matutulog, di ba? Marami dyan yung through negligence, para
ano? Sir, iihi lang ako. San ang CR? Pag dating sa CR, nag-escape. Yun. Negligence of police yan
under 224.

Then in 225, actually, yung 225, the offender is not a public officer. Sinasabi ng 225, a private individual
who is assigned to take custody of a prisoner, if he consent to the escape of the prisoner, then he will be
liable under Article 225 not under Article 223 because 223 is committed by a public officer. 255 is a
committed by a private individual who might have been assigned to take custody of the prisoner. Yun sa
225. So, 223, 224, 225 substantial of all the crimes as infidelity in the custody of prisoners.

Then, the next one is 226. And 226 is the crime of infidelity in the custody of documents. Yun si Bedol
ba yun, Bedol? Sa Mindanao? Sinabi niya nawala yung nanalo. Yun infidelity yun. I do not know why
they charged him only with contempt. Infidelity yun because he was in-charge in the custody of election
returns. Then, sabi niya nawala. You loss, you're caught with the instruction. You lost or violates the
immovability. Characteristic of public documents that they should not be removed in a place where they
are supposed to be there. Infidelity in the custody of documents yan.

But you know, there is a twist here because what we are talking of 226 is the crime committed by public
officer entrusted in the custody of public documents, either he destroys, conceals, or transfer the
documents to other place without authority. But when the evidence or when the documents pertaining to
records of the courts, then, the crime may be estafa. Estafa under Article 315 Paragraph 3 Subparagraph
C. Tingnan nyo sa estafa sa 315 Paragraph 3, 'yun other forms of fraudulent acts. Meron destruction of
court records and documents. If the destruction is for the purpose of deceits, nakalagay yan. I think it's
Article 315 Paragrah 3 Section C. Basahin nyo. Estafa yan. Kung court records, estafa. If you
destroyed the document, you are in custody. The crime is infidelity in the custody of documents. What if
there were destruction of court records or even documents of evidence? Under Article 315 Paragraph 3

4D 2007 83
Subparagraph C, estafa yan. Bakit? When the destruction of the document or a court record of
documents, it's for the purpose of causing damage to another party, estafa yan. Destroyed the evidence.
Yung court record pinunit mo yung evidence para manalo kaso 'yan, estafa yun.

You'll take this up probably in your legal ethics. There was a bar topnotcher, number 4, I think in the bar
who proceeded a professor of law in FEU and at Ateneo, of course. The first time that he did it, tinago
yung ebidensiya during bumibisita tinago. Tinago niya para manalo siya. He was suspended. He was
removed by the Supreme Court. But a reconsideration through the wife. Yung wife niya ang gumawa ng
sulat. So later on, lifted yung disbarment niya. So, naging suspension lang at most 2 years. But after he
was suspended, during a trial in another case, the only way probably to win the case, kinuha yung
evidence, kinain. Oo, kinain talaga. Kinain niya. Then, everybody was looking for, nasaan na?
Syempre, wala. But somebody saw him swallowing the evidence. He is a topnotcher. Second time
around, he was disbarred until he died. Yan ang estafa. Because you are destroying a court record or
document for the purpose of causing damage to other party. That is the meaning of estafa under Article
315 Paragraph 3 Subparagraph C.

This is different from infidelity in the custody of document, you know. The one who is punished in
infidelity in the custody of documents is the public officer who is the custody of the document. But if the
public officer destroys the court record in order to cause damage to another, that public officer is liable to
estafa because there is a purpose and the purpose is to cause damage to another party. Sabi nila, bakit
estafa yun? Saan yung deceit? The element there is not deceit. The element there is fraudulent act.
Ang estafa kasi dalawang element. One is abuse of confidence. The other one is deceit or when the act
is fraudulent.

And then, the other crimes as I told you, participating, prolonging, abandoning, usurpation of legislative
function, usurpation of executive function, disobedience, or usurpation of executive functions. Now, the
usurpations, 'yung executive, legislative, at saka judicial, what it describes tell us. It simply means that an
executive is encroaching on the power of the legislative. Yung legislative naman or executive is
encroaching on the power of the judicial. In another words, these are crimes that will be committed only
by public officer. Lets say, youre a mayor. You usurped the function of a judge. Ayun, the mayor is
liable for his confession of judicial functions. Or a judge probably or an executive, makes a law.
Therefore, he is usurping the power of the legislative, then that is usurpation of legislative functions. The
usurpations here pertain to public official usurping the power of the other department. Thats the
meaning.

And then we go to a crime of maltreatment of prisoners. What is maltreatment? The maltreatment of
prisoners is different from the crime of ill-treatment under Article 266. That is a crime of ill-treatment. Ill-
treatment is a form of slight physical injury in Article 266. Maltreatment of prisoners is committed by
public officer or entrusted in dragging the prisoners and the prisoner is maltreated under their custody.
Pinagbubugbog mo yung kwan. Kawawa naman. Nakakulong na nga, binubugbog mo pa.
Maltreatment yan.

And then 245, nakalagay dun abuse of chastity. Iba ibang crimes yan. Sinabi ko na prolonging,
anticipating, abandoning. Yung Article 245, abuse of chastity. That is different from crimes against
chastity. The crimes against chastity are found on Article 333. I think Article 333 to Article 343. Yun ang
crimes against chastity. The crime of abuse of chastity is limited only to those persons mentioned in 245.
Sino yun? Yung mga guards, warden. Bago papasukin yung asawa ng preso, pindot-pindot muna from
the guard. Request for a sexual favor in order that the request of the lady visitor will be accommodated in
exchange. Yun, abuse of chastity yan for those public officials who request for sexual favor in exchange
of a transaction. Lets say, yung mga detained women. Nagbebenta ng mga dugo sa mga ospital.
Meron din lokong doctor. Op! Lagot ka, iha. Bibili ako ng gamot. Pindot-pindot muna. Ayan. That is
the meaning of 245 abuse of chastity. What makes it a crime of abuse of chastity is that the victim has a
transaction in the public officer and in exchange of that favor, magkakaroon siya ng sexual favor in
exchange to it. That is not a crime involving chastity. Thats abuse of chastity committed only by those
persons mentioned by the law.


4D 2007 84
Then we now go to 3019s. Tama na. Para naman makapagpahinga naman ako.

Sir, can a public officer in the custody of records is the one who committed under estafa?

Under the law, it involves public officer, relatives, business associates, partners and other persons
conspiring with this. Now, if the spouse is utilized by the husband to receive money involving the
husband, if the husband is the one with the public officer, both of them will be liable.

Sir, if you cannot make a connection?

Mahirap yun. If you cannot make a connection, then you cannot probably charge the wife for the crime of
plunder together with the husband. Thats why I was saying the public was one of the argument used by
Solicitor General Tito Mendoza when he had the oral argument before asking. He came from me. Bakit?
If you may approve, the acts that lead to the accumulation of an ill-gotten wealth more than P50 million,
the remedy of the State is not to file a crime of plunder. The remedy of the State is to file a forfeiture of
assets under Republic Act 1379 which is civil in character. Thats what they did with President Marcos
and family. It was very easy to recover any ill-gotten wealth from the Marcoses because under Republic
Act 1379, the law of forfeiture, when they have established that there is an ill-gotten wealth, the burden of
proof shall be part of the defendants, to prove that it is not ill-gotten. May presumption of ill-gotten, eh
under RA 1379.

But when you file a case of plunder, under Republic Act 7080, of course, aside from the discovery of the
P50 million, you have to prove that the amount or the amount was amassed from any of the six predicate
crimes. And its very hard to prove. Lets say for example, one of the cases pending before a retired
general. What they found is that it was an affidavit from the wife that my husband amassed all these
wealth because he got provisions from the sale of armaments and so on. Alam nyo, di ba? But theres
a question there whether or not an affidavit can be used against the husband. Supposing your wife
doesnt want to testify, walang ebidensiya. But if you can prove other than the affidavit of the wife that
indeed the amount was amassed in total amount that was amassed from any of the predicate crimes,
sigurado yan. Kulong yan ng plunder. Aside from the case of President Erap, there was another
plunder before. Hindi naman siya ang unang plunder. There was another plunder in 2001 when I was
the judge. Ako ang unang plunder riyan. Yung when the BIR cashier accumulated, nakakatakot eh,
P280 million. That is the first conviction. What she did was to make it appear that there was an
authorized depository of BIR through the connivance of some of the employees in the bank who are now
at large. They can no longer be located. So, she was a collection agent. She was merely a cashier. So,
what she did was, with connivance with bank employees, she opened an account allegedly an account of
the BIR. So, all the taxes that were collected by her, dinideposit dun sa account na yan. When the
checks are already good, then she will go to the bank and then withdraw the money. Kasi siya yung
authorized eh. Siya ang nag-open but thats not an authorized account. Siya ang nag-open. Eh, kung
ikaw ang nag-open, ikaw nagde-deposit, ikaw din nagwi-withdaw. In a short, short time, mga three
months lang, the bank, the account, fund was empty, 280 million. Biro mo yan. Cashier lang. Not only
that, she did it twice. Dalawang accounts yun, sa ibang bangko naman. Yung isang bangko, 300 million
naman. Oo, and then she was convicted. She was even smiling. Walang remorse. Because the
amounts would no longer to be located. But you can prove the accumulation because whatever amounts
deposited in the bank in the fund, yun ang ill-gotten wealth. You do not need to prove that the amount is
still there. What all you need to prove, there were amounts deposited. The amounts accumulated are
more than 50 million and then the same were withdrawn by the same person. Thats sufficient ill-gotten
wealth. Because if you prove that in the requirements that amount is still there, walang mako-convict.
Even President Erap, yan 3.2 billion deposit, wala naiwan dun. Biglang nawala. Wala nang naiwan dun.
The only one that was left is the amount of 542 million that includes the 200 million that was donated to
the Erap Foundation and then yung Boracay. Well, they are blaming us for the property was not
attached. But the problem when you filed cases, they still hear it. Because a preliminary attachment was
the requirement of the preliminary attachment. There was a period for a preliminary attachment that the
Boracay mansion be attached. But the problem is that the Boracay was in the name of a St. Peter
Holdings owned by Mr. Yulo. And Mr. Yulo is not a party to the case. Can you file a preliminary
attachment against a property owned by a party not entitled as the accused? You cannot do that

4D 2007 85
because you have to give him due process. So, we could not issue an attachment when the case was
filed because it does not appear that he is the owner based on the documents. Property is owned by St.
Peter Holding in the person of Mr. Yulo. So, we could not act. In the meantime pala itong Quezon City,
'hindi nagbabayad ng real property tax, kinuha naman ng Quezon City. But during the trial, it was proven
that the amount came from jueteng. So, what we did was we cannot attach the property. So, after the
case, we forfeited because it was proven during the trial that, that is the proof of the crime. So under
Article 45, pinorfeit namin yan. In the meantime, kinukuha naman ng city government dahil di daw
nagbayad ng taxes. Forfeited din for non payment of taxes. So, nag-aaway na yung national
government at city government. Pinag-aawayan yung Boracay mansion. That house is worth 300-500
million. Laki 'no? Mamumuhunan ka talaga. Im not saying found guilty na siya o okay na. But I think he
is applying for pardon now. But they will have a hard time to rebut our decision on how the amount of 189
million found its way to the Velarde account. Ano yun eh, sales of stock. You know, even if you look at
the crime of plunder, yung sales of stock nila, receipt of shares of stock, or closure employment is one of
the predicate crimes in Republic Act 7080. Hindi bale bribery because when you talk of bribery, then you
can easily say that you made money out of your position. Bribery, eh.

When we speak of malversation, this means that you spent money belonging to the government. But
nakalagay lang dun, receipt of shares of stocks. The law does not say that you profited from the same.
There is a receipt of shares of stock. This is an element of the crime of plunder. And that's what
happened with him dun sa ito ba yung Tagaytay? Bell resources? Sa Tagaytay Highlands, that's the
one. Then tatakbo na naman. Wala namang nagagalit sa amin, di ba? Meron ba? Wala eh. All I heard
there was somebody who called me up from the States. Are you the one in the TV? Why? You looked
young. Gumamit ka ba ng make-up? Sabi nagmake-up daw ako. Kako, puyat nga ako dyan eh. I only
slept for one hour during that time. 'Di ba, Atty. Puno?

We will be going for very important topics. Memorize all the provisions from 246 to Article 266-A. Bahala
kayo dyan. But I'm telling you, nandiyan lahat yung importanteng crimes, parricide, murder, infanticide,
duel, abortion, intentional, unintentional, rape, sexual assault as a form of rape, qualified rape, dog style
rape, visionary rape, andiyan lahat. So, its up to you. I am telling you very important. Yan ang
pinakaimportante crime. From 246 up to 365, importante lahat yan. Thats why I do not like anymore to
conduct recitation para matatapos. I like that you take the bar exam. Di naman tinuro ni Sir ang estafa
eh. Nakakahiya, hindi ba? Di naman tinuro sa amin ang robbery in band to robbery with homicide
aggravated by treachery. Di naman tinuro sa amin ang robbery with homicide or robbery with rape, di
ba? So, we will try to finish. Ang problema lang dyan when you review the fiinal exam, medyo mahaba
ang coverage. Di bale. Lahat naman yan. When I tell you what are the important types, maghintay kasi
lagi. And I tell you, these are the important crimes, I will give the question from those important crimes.
Why will I ask you a crime of anticipating office, prolonging? Kinakailangan nyo ba yun para maging
abogado? Susmaryosep. Hindi ba? Or rendering an accounts? I will not ask you those . But you will
have your recitation after we are through with 3019 because there are many things that we have to take
up with 3019 especially Section 3 Paragraph E. That is the most important one in 3019 Section 3E.
Okay, go. Thank you again ha.


I only discussed Paragraphs B and C of Section 3 of RA 3019 in relation to bribery under the Revised
Penal Code and in relation to the crime of plunder, di ba? So, I limited only my discussion to Paragraphs
B and C of Section 3. So, we were not able to discuss the other provisions.

Okay. So, actually the acts that are prohibited by 3019 are found in Section 3. So, we only discussed
Paragraph B that is actually a form of bribery and also Paragraph C of Section 3, also a form of bribery.

Republic Act 3019 Section 3 Paragraph A


4D 2007 86
Now, lets go to Paragraph A. Paragraph A is sometimes a crime of influence peddling. When a public
officer directly or indirectly induces a public officer to commit an act in violation of regulations and the
officer so persuaded or induced. Now, there are two persons here who maybe liable - the one who is
inducing and the one who is actually induced.

Now, if a public officer induces directly or indirectly a public officer, even if the public officer is not
induced, the inducer is already liable. Now, if the person is actually induced, then both of them will be
liable. So, mere inducement, the mere act, directly or indirectly of inducing a public officer to violate a
regulation is already penalized. If the public officer so induced and is actually induced, then both of them
will be criminally liable.

Republic Act 3019 Section 3 Paragraph B

Then Paragraph B, as I've said, is a sort of bribery if the purpose is to award a contract or a transaction.

Republic Act 3019 Section 3 Paragraph C

Paragraph C, likewise, is a yung sa ZTE, maraming liable diyan 'no under Paragraph A. There are
public officers inducing somebody to violate a rule. They will fall under Paragraph A of Section 3. If the
officer is actually induced, then both of them are actually liable.

Republic Act 3019 Section 3 Paragraph D

Paragraph D prohibits the agreement of the immediate member of the family wherein an institution or any
persons where that person or institution has a pending case before, pending application or an act to be
done by the public officer or within one year after that public officer has acted on that favor or what.

Now, this is different from what you sometimes hear as nepotism. Nepotism is different. This one is the
employment of an immediate member of the family in employment with any person or any other entity
because of a pending case or a pending application or pending favor that you are asking from the public
officer or within a period of one year.

There was one case where it never reached there was a labor arbiter in Cebu where they decided a
case in favor of a bank the Metrobank. Because a case between Metrobank and the labor union. The
bank won in the case before him and then later on, his son applied with Metrobank. The son was
overqualified. He was even overqualified. He was employed by the bank within the one year prohibition
under Paragraph D. Then what happen is that the labor union discovered that the son of the labor arbiter
was employed in the bank. So, a case was filed against labor arbiter within the one year period. The case
did not progress because before the accused could be arraigned, he was charged before us. Before it
could be arraigned, the accused died. That is the best defense eh. Buti na lang indefensible di ba? The
only defense under Paragraph D is that he is not your son eh. The only defense under Paragraph D is
that the employee is not your son even if he is even if he is very much qualified. That's not a defense
eh. The only defense that he is not your son and that the one year period has already expired. He was
employed beyond the one year period. But you cannot (apply) those defenses kung patay ka na. You will
be liable.

Republic Act 3019 Section 3 Paragraph E

Then Paragraph E is the most important one. Section 3-E is the most important one. By causing undue
injury to a private person or to a person or to the government or giving unwarranted benefit to any person
through evident bad faith, gross inexcusable negligence or manifest partiality.

So, there are two things that may happen under Section 3-E:
1) One is the causing of undue injury.
2) The other one is giving unwarranted benefit.


4D 2007 87
These are two different things. When you cause injury to the government or to any person, then that
injury can be quantified in terms of damages. When you are asking for damages, then those damages
must be quantified. In other words, in can be ascertained. But when you talk of manifest partiality or
unwarranted benefit, then probably you cannot quantify the amount, but somebody benefited from your
act. Therefore, if you prove undue injury or you file the case of undue injury, then that undue injury should
be quantified. It should be in the form of damages which can be ascertained.

If you cannot ascertain the damages, then you cannot fall under this undue injury. You might fall under
unwarranted benefit. But in unwarranted benefit, the one who is benefited is a private individual, (all
concerned). But if it is undue injury, then it's an undue injury caused to a person or to the government. So,
but the problem, however is that when we cause undue injury or you give unwarranted benefit, it is
through evident bad faith, gross inexcusable negligence or manifest partiality. These are very hard to
prove. Why? It's not only a bad faith, but it required evident bad faith. According to the Supreme Court
evident bad faith is attended with furtive design that needs fraudulence or when you speak of gross
inexcusable negligence, it is not only gross negligence, it is inexcusable. Gross na inexcusable pa.
Mahirap yun. Then, it should be manifest partiality. In other words, it's not only partial but it is manifested
very clear from the facts.

So, most of the cases that are brought to the Supreme Court or even to the Sandiganbayan fall under
Paragraph 3-E. What they usually do is that, let's say a public official you cannot prove that you made
money out of a contract. So, here comes a contract, but you cannot prove that the government official
made money out of the contract because you could not probably get a witness to testify that that public
official made money out of the transaction. But you believe that there is an overprice. So, if the price of
the walis is P25.00 which is recorded and is paid at P250. So, therefore, there is a gross discrepancy
between the value, the actual value, and the purchase price made by a government agency.

Now, of course, probably you can (prove) that you made money out of the transaction because there is
an overprice. But when you prove bribery, you know, the giver usually does not come out in the open and
then point a public officer that he made money out of the overprice. So, what are you going to do? You
cannot charge him with bribery? You're cannot also charge him under Paragraph B or C of Section 3?
Then what will you do? Then they file a case of Paragraph E.

So, therefore, the difference now between the actual value and the purchase price of the walis tingting will
now be the undue injury caused to the government. Instead of filing a case of, let's say, bribery or indirect
bribery or any bribery for that matter because the giver will not come out in the open because he
benefited. Then usually you file a case of undue injury caused to the government by reason of the
overprice, yun.

The other one is that, there maybe transactions were the government official did not benefit from it. So,
like for example, ghost payments, ghost employees, ghost deliveries. When you prove ghost deliveries
and ghost employees, theyre very easy to prove because you just determine if there are disbursements,
but there were actually no projects and there were actually no employees. But you cannot prove that the
public officer made money of those ghost projects or ghost employees. What are you going to file? Then
you file Paragraph 3-E or Section 3-E because you caused undue injury to the government. That's
another example.

The other example is causing injury to a private individual, undue injury to the private individual. What you
find here is that, let's say, you are an employee of the government, but already retired. You are entitled to
your retirement pay. But the mayor does not want to give the retirement pay although youre already
entitled to it on the ground that you are a political opponent. Then, they will again file Section 3-E because
they causing injury- undue injury - to a private individual. Yun ang mga example ng undue injury.

An example of unwanted benefit would be yung mga bidders. You are not the lowest bidder, but the
contract is awarded to you. So, there is no injury to the government that you can prove, but you gave
unwarranted benefit, I mean, therefore, he is entitled to the bidding. So, because you cannot quantify the
amount that was you cannot quantify the amount, ano. The and that you are not causing injury to that

4D 2007 88
bidder, but you awarded the contract wherein he is not qualified, then you are giving unwarranted benefit.
That's the meaning of unwarranted benefit?

Or probably in government agencies, an individual was promoted, but is not qualified, then probably
you're also giving unwarranted benefits to that private or to that employee. Yun ang ibig sabihin ng
unwarranted benefit. You cannot quantify the injury, but you can show that there is an unwarranted
benefit. It is actually getting benefits where the private party is not entitled to it.

But proving undue injury or given unwarranted benefit is another thing, and establishing evident bad faith
or gross inexcusable negligence or manifest partiality is another thing. So, even if you cause undue injury,
even if there is proof of causing undue injury, even if there is a proof of giving unwarranted benefit, if you
cannot prove that it was done through evident bad faith, gross inexcusable negligence or manifest
partiality, there is no crime committed. Kaya nga karamihan diyan naacquit eh because it is very hard to
prove evident bad faith. It is not merely bad faith. It is evident bad faith.

But there are also convictions that the evidence is really clear like a I do not know if the decision will be
sustained where there is really a big discrepancy between the actual value and the value of the item
bought by the local government unit, then you can really show what you will prove there is that despite
knowledge that the price is very high, still you awarded the contract to somebody else despite the
objections. Probably, that is evident bad faith. Because from the very beginning objections were raised as
of the amount and as of the award of the contract. Or probably if you cannot raise that or you cannot
prove that, we can also prove gross inexcusable negligence because you have all the time to go over the
prevailing value of all this tingting, but still you insisted on buying the walis at P250, ang mahal naman
nun. Walis lang, P15 lang eh, di ba? So, if you cannot prove evident bad faith then you might fall, you can
prove gross inexcusable negligence. If it is not intentional, then you can prove gross excusable
negligence.

Now, the defense that you can put up if you are the accused, of course, is you prove that the injury or the
unwarranted benefit was not done through evident bad faith. And the other defense is what they call this
is now a doctrine laid down in so many cases, but we call that as the Arias Doctrine. You heard about
Arias Doctrine? Arias Doctrine, no. They call it the Arias Doctrine.

Now, in Llorente versus Sandiganbayan, Sistoza versus Sandiganbayan, all so many cases where they
applied already the Arias Doctrine. What happens there is that you in a government agency for that
matter, before a disbursement is made or approved, there are several steps to be done before an amount
of money is released by a government agency. It starts with the clerk. He prepares probably the payroll,
the clerk. And then somebody supervises the work of the clerk, sees to it that all papers are in order, then
after the supervisor probably it will go to the treasurer to determine if there is an amount money available
or to the budget officer, if it is within the budget, so that they will not be liable for technical malversation, if
it is case with the same purpose as required by the ordinance or law. Then it will go to recommending
approval, then signed by the recommending approval. The person to required to make the
recommendation and then here comes the approving officer.

If that disbursement is non-existent, in other words, they make it appear that there are employees when in
fact there is none and, therefore, illegal disbursements then all those who participated in the release of
the money will now be charged with violation of Section 3-E because that is causing undue injury to the
government through evident bad faith, gross inexcusable negligence or given manifest partiality. Okay.
So, all of them will be charged because it involves illegal disbursement. Now, from the clerk up to the
approving officer they will be charged from having conspired in defrauding the government in the amount
of blah, blah, blah.

Question: What will now be the defenses that they can put up? Of course, the defense that they can put
up would be that they did not act through evident bad faith and so on. Now, the approving officer can
have an added defense. This is what they call the Arias Doctrine Defense that the approving officer does
not need to go over again. He is not required to go over again the documents and then determine for
himself if the documents are in order. The public officer, the approving officer will go over the signatures

4D 2007 89
of those who participated in the preparation, the review, and so on. And he has no reason to doubt the
accuracy of the work of his subordinates because if he again will go over the documents and for himself
to determine the truthfulness of the documents or the completeness of all the documents, then the
Supreme Court said what will happen with the government functionaries. The government may not
anymore move because he again required the approving officer to do things that have been done by the
subordinates. So, he can be (exuberated) under that doctrine.

But that doctrine will only apply if that public officer, the approving officers duty, his duty is to sign several
documents, because if he only signs one document during that time he cannot invoke the Arias Doctrine.
The duty of that public officer is probably to sign several documents. That is his regular work, maraming
ganon. Yung mga utos or review permit. Mayors, for example, are signing up of documents on a daily
basis and, therefore, he has no reason to doubt the work of his subordinates then he could (perform) in
events no. That's what they call the Arias Doctrine because it is an Arias Doctrine because that was first
that defense was first applied to the Supreme Court in the case of People versus Arias. That's why they
call it the Arias Doctrine.

It has been adopted by many, many cases, one of whom is now the Press Secretary. Yung Press
Secretary natin, he was charged as mayor of Muntinlupa, eh. He invoked that defense in the irregularity
in the audit. Ayan do not mention his name ha? But, anyway, he cannot deny kasi decision of the
Supreme Court eh. He was a beneficiary of this Arias Doctrine.

Republic Act 3019 Section 3 Paragraph H

Now, the other acts punishable under Section 3, you just read them yung prohibited transaction having
interest with the transactions or kasi if you are a government official, you can do divest of your interest
in private entities. There are several transactions prohibited by law for you to be engaged into, but most of
those transactions apply to local government officials. Yung ano bawal yon eh, yung, let say a mayor
who engages in cockpit, yung operation of a cockpit that prohibited under Local Government Code. Yung
ang sinabing prohibited transactions. So, if there is a law prohibiting a public official to engage in this
prohibited transaction, then he will be liable under this provision.

Republic Act 3019 Section 3 Paragraph G

Then the one that is also very important, the latest decision of the Supreme Court, is entering a contract
grossly disadvantageous to the government. Kaya sinususpetsyahan dun sa ano eh. That is a case that
might have precipitated the news report that a lady justice was receiving money from ano yun. That is
one of the cases because of that decision, because of that gross inexcusable - the entering into a
contract that is grossly disadvantageous to the government.

Now, you look at Section 3-E at saka yung gross, grossly disadvantageous to the government. Di ba
parang mag pinsan yan? It's almost the same, eh. The only problem is that when you charge a
government official under Section 3-E, then you have to prove evident bad faith. But when you charge
somebody else with gross - entering into a contract grossly disadvantageous to the government, the law
does not require an evident, bad faith, 'di ba? Walang requirement don, eh. So, but the problem, however,
include what is grossly disadvantageous of the government? So, it will be a mere interpretation for what is
favorable and what is not favorable to the government.

But when you cannot prove, that's what they all usually do, you cannot prove Section 3-E because you
have to prove evident bad faith in order to be liable under Section 3 and then you cannot, likewise, prove
undue injury or you cannot establish unwarranted benefits, then you charge those persons for entering a
contract grossly disadvantageous to the government.

What happened in the case of People versus Go, that is the case of People versus Go. The Government
officials in the Department of Communication, those who entered into a contract, yung PIATCO, they
were charged with several offenses because there were several contracts entered into by the government
with private individuals. So, some cases were filed under Section 3-E, that means that caused undue

4D 2007 90
injury to the government. But there was a case filed under a contract entered into grossly
disadvantageous to the government because probably they cannot prove undue injury and they cannot
prove evident bad faith. So, they were charged for entering into a contract grossly disadvantageous to the
Government.
They filed a case for the dismissal of the case before the Sandiganbayan, including Mr. Go, a private
individual. It was denied by the Sandiganbayan, so Mr. Go went to the Supreme Court. The first
resolution of the Supreme Court in that it sustained the Sandiganbayan. That it was proper for them to be
charged with violation of Anti-Graft Law entering into a contract grossly disadvantageous to the
government. But the problem is that Mr. Go is not a public officer, he is a private individual. So, in a
motion for reconsideration, Mr. Go, a private individual, raised the issue that he could not be charged with
entering into a contract grossly disadvantageous to the government because that can only be committed
by public officers. A private individual does not enter into a contract grossly disadvantageous to the
government.

So in a motion for reconsideration, the Supreme Court reversed itself and then dismissed the case
against Mr. Go, a private individual, because the act of entering into a contract grossly disadvantageous
to the government can only be committed by a public officer. So, they say that is one of the reasons why
I do not know. They say it is also a property, a big property in Caloocan. That might be the reason why
those reports came out in the Newsbreak and in Malaya. Whatever it is ha, bahala sila. Anyway, it is now
being investigated eh, okay? Okay. The other acts you just read them. Madali lang yan eh, prohibition,
bank interest.

Republic Act 3019 Section 13 Suspension and loss of benefits.

Now, let's go to another area in 3019 baka I was expecting question on this because it all it is actually a
provision in 3019 about suspension pendente lite. Have you heard about suspension pendete lite? It is
different from preventive suspension, ano? Suspension pendente lite is a suspension that is meted by
courts mostly by the Sandiganbayan pending the termination of a criminal case. Criminal case yan. So,
suspension pendente lite is a preventive suspension in a criminal case.

When you speak of preventive suspension that is a preventive suspension in an administrative case. So,
suspension pendente lite is a suspension pending in a criminal case. So, therefore, if it is a suspension
pendente lite that is impose by the court by reason of a criminal case file before the court. Unlike in a
preventive suspension in administrative cases as provided for in the Ombudsman Law, Republic Act
6770, the suspension of a public officer pendente lite is automatic. Automatic yan, once the information is
considered valid.

In other words, you do not prove anything except that you are charged with violation of Republic Act 3019
that is Anti-graft, you are charged with crimes committed by public officers in the Revised Penal Code and
you are charged with the commission of fraud against the government, and that the information is already
valid.

So, there are two requirements:
1) The information is already valid.
2) You are charged with those that I mentioned in 3019 or those crimes punishable under the Revised
Penal Code from Article 203 to 245 or any act of fraud that maybe committed against the
government.

Now, no ifs or buts, that's what they say. No ifs or buts. In other words, you cannot argue that the
evidence of guilt against you is weak. Wala kang magawa. When the information is valid, you cannot do
anything except to serve your suspension pendente lite.

So, when is the information considered valid for purpose of suspension pendente lite? When the accused
is already arraigned, then that means that the information is already valid because you can no longer cure
a defect the information once the arraignment is concluded. You can only raise the issues of prescription,
double jeopardy, di ba, after arraignment.

4D 2007 91

But any defect in the information, this is as raised in a motion to quash, and then you are now arraigned,
then that is time you can already be suspended pendente lite. You cannot argue that the evidence of guilt
is weak. You cannot argue that you did not commit the crime. You cannot argue that you are wrongfully
charged, it is motu proprio. There is even no need of a motion to file against under (motion to be
prosecuted) for you to be suspended pendente lite.

Now, what is good about the suspension pendente lite unlike in preventive suspension? Probably yung
administrative law you have studied this, di ba? If you are elected official for example, during your term
from 2004 to 2007, then you are now charged administratively, di ba? And then you are preventively
suspended. You can only be preventively suspended during your term of office from 2004 to 2007 of the
acts committed while you were an incumbent public official. So, that if you are now re-elected after 2007,
you cannot now be preventively suspended for an act, administrative act, that you committed during your
previous terms. 'Yung ang preventive suspension. Hindi na pwede because the re-election by a people
is the best evidence that the best judge of your administrative acts, eh. Your acts although not criminal,
ano ha? So, therefore, you can no longer be preventively suspended.

But in suspension pendente lite, so let's say you are an incumbent governor from 2004 to 2007. You were
charged criminally for an act committed during that term. Now, you are charge with the Sandiganbayan,
in the meantime, you are now a congressman. After 2007 you committed an act in 2005, you are charged
in 2007, but at the time that you were charged, you are already a congressman. Can you be suspended
pendente lite for an act committed when you were governor, when in fact you are already a
congressman? Yes. Unlike in preventive suspension, administrative ,yes, you can still be suspended if it
is a suspension pendente lite wherever you are as long you as you remain a public official.

That's what happened to one of the congressmen. When they suspended him he was a governor, now he
was a congressman, they suspended him. He was quarreling with us. He went to the Supreme Court. Our
decision was sustained and what he did was sabi niya wag lang suspension pendente lite, mag-leave na
lang ako without pay, 90 days. If you serve the purpose, okay lang eh. So, instead of being suspended,
he made it appear that he was on leave for 90 days without pay. I cannot question it, eh. That's the effect
of a suspension pendente lite.

Republic Act 3019 Section 11 Prescription of offenses

Now, the other thing that you should know about Republic Act 3019, I think we have discussed already,
yung prescriptions of crimes under 3019, ano? Because 3019 is special law, therefore, the prescriptive
period of the crime prescriptive period or offenses under special law is governed not by the Revised
Penal Code, but Republic Act 3326 the Law on Prescription.

I think I told you already about the case of Romualdez versus Marcelo. Remember this case of
Romualdez versus Marcelo. That we do not apply the provisions of the Revised Penal Code on the
second part of second sentence of Article 91, that when the offender is outside of the Philippine
Archipelago, then the prescriptive period will be suspended. The crimes punishable under special law,
that Article 91 is not applicable. Okay. So, you know already the doctrine.

The doctrine there is that we cannot apply the Revised Penal Code as a supplementary law or suppletory
law to Republic Act 3326 which is a law on prescription because the applicability of the Revised Penal
Code or the supplementary or suppletory character of the Revised Penal Code is only applicable to
special penal laws, laws that define crimes with corresponding penalties. Republic Act 3326 is not a penal
law. Its a law on prescription. Therefore, the Revised Penal Code can not be applied suppletorily or
supplementarily.

Republic Act 6713 Code of Conduct and Ethical Standards For Public Officials And Employees

When you want to know about 6713, Republic Act 6713 is the law on code of conduct. The code of
conduct of government officials or public officers, rules of conduct. Dapat dyan alam lang niyo yung mali.

4D 2007 92
Nepotism is punished under 6713. Sometimes I call this law of 6713 as the law of on impropriety.
Impropriety, you do not divest, you double compensation, moonlighting. The other one is you fail it is
actually a repetition in 3019 because in 3019, you are required to respond. You have to respond with
inquiries from the citizens. If you do not respond within reasonable time, then that's punishable under
Republic Act 3019. What are the acts punishable under RA 3019? If there is an inquiry made, that
inquiries should be answered within reasonable time.

Under Republic Act 6713, that is reiterated under 6713. But 6713, it sets a period in which to respond to
an inquiry. Dun sa 3019, wala. Reasonable time lang. In 6713, there is a specific period. I think it's 15
days. Magrespond lang within 15 days from receipt of the inquiry.

Then the other act that is punished is moonlighting, failure to act on time of the inquiries, and then failure
to file SALN, sworn assets, liabilities, and net worth. It is required in our laws of the government service to
file every year sworn asset, liabilities, and net worth.

There may be two violations under this omission on SALN. And sometimes they call it SALN sworn asset,
liabilities and net worth.
1) Nonfiling.
2) The other one is nondisclosure.

Nonfiling, if they do not file, then you are liable under 6713. If you file, but you did not disclose your
assets, then you'll also be liable for nondisclosure of assets. Kaya lang dyan that is why we acquitted
Erap for perjury because if you do not disclose with your SALN, which is under oath, then they charge
you with perjury under Article 183. So aside from being charged with violation of 6713 for nondisclosure,
then you are, likewise, charged with perjury under Article 183 because there is a malicious, I mean, there
is a false narration of facts required to be disclosed under 6713 made under oath. Then pa-filan ka ng
perjury, di ba?

But we acquitted Erap because perjury, as I told you last time, perjury is not only false narration of facts -
deliberate, malicious false narration of facts. Then the other one is that, I think under Section 11 or
Section 8, there is a compliance procedure under the law 6713 that if a government official files his SALN,
he could be given time to correct if there is an error in his SALN. So, therefore, if he is not given the
compliance procedure, under the law, then it will be premature to file a case of perjury against him
because he should be given time to correct his SALN. That's why we acquitted him on perjury.

The problem there is that they did not charge him with violation of 6713 because there is no violation.
They said that there is no crime in 6713 because he filed his sworn assets, liabilities, and net worth. Then
they charged him with perjury. So, they acquitted him. Sabi nila bakit naacquit? Bakit naacquit sa perjury
yan? Nagsinungaling. Eh, di niyo naman binigyan ng pagkakataon na i-correct, eh. That is required
under 6713.

END

Revised Penal Code: Articles 246-266 Crimes Against Persons

I will not follow the sequence in the code. So instead, what I will do is I will group the crimes according to
the severity of the violence. We are now in crimes against persons. Therefore, we will start with 246 up to
266 including 266-A which is the new law on rape. It is otherwise called Republic Act 8353. When we talk
about crimes against persons, the intention of the offender is actually to commit violence against a
person. There may be other crimes or there may be violence, but the crime is not a crime against
persons. If the intention of the offender from the very beginning is to commit violence, then that is a crime
against persons except if the crime now is rape because you do not commit violence. Thats not the
element. I mean theres an element, but the purpose of rape is not to commit violence. Otherwise, the
involved rapist will not enjoy. In fact, there was one of congressman who objected to the transfer of rape

4D 2007 93
from 335 to 266-A. It is used to be crime against chastity but the members of Congress, the women
members of Congress, insisted that it should be transferred to a crime against person. Mr. Wetness
objected. There was one apostle who objected. Ive heard there was a quarrel among the members who
insisted that it should remain as crime against chastity because the intention of the offender is to
penetrate, not to commit violence. Anyway, they lost. So now, its now in crimes against persons.

Now, what you will do is that if the purpose is to commit violence, then you will have to determine what is
the extent of the wound of the victim. Now, if the victim dies, then you will have at least 5 choices. So,
there will be 5 possible crimes that maybe committed if the victim dies. You have the parricide under 246,
then you have murder under Article 248, and then you have homicide under 249, then you have death
during a tumultuous affray under Article 251, and then infanticide under 255. So, its very easy. When the
victim dies, then you ask a question. Then youll just make your choice from among those 5 crimes where
the victim dies.

Then, of course, you know what is parricide. The offender and the offended parties come from the same
bloodline. So, it only includes the ascendants and then descendants. So, the relationship is ascending
and descending. So, you killed your son, or you killed your daughter, you killed your father, you killed your
mother. So, it is ascending and then descending, except if the victim is the spouse because you are not
related to your spouse. It is relative by consanguinity, ascending, and descending. Therefore, the
collateral relatives are not included. So, you killed your brother, you killed your sister. Thats not parricide
because the relationship is collateral. Its not ascending or descending, so very easy. Regardless of the
manner of killing your ascendant or your descendant, that is always parricide. What makes it a crime of
parricide is the relationship of the offender and the offended parties.

Now, if the victim, however, is less than 72 hours that means less than 3 days, then the crime is always
infanticide. Supposing the mother kills her son or her child and the child is only 2 days, whats the crime?
Is that parricide because you killed your children? Or is it infanticide? That is infanticide. Because under
the second paragraph of infanticide, the law says that if he is killed by the mother to conceal her honor or
dishonor or what, then the crime is infanticide. So, therefore, by provision of 255, you kill the mother
kills the daughter or the child, the crime is infanticide, although there is a relationship.

Now, if there is no relationship and the victim is more than 72 hours, then your choices will be murder or
homicide. So, no relationship or if theres a relationship, but outside of relationship in a crime of parricide,
the victim is more than 3 days, then you will be left with two choices between a crime of murder or a crime
of homicide or it may also be under Article 251, the crime of death during tumultuous affray.

'Yung death during a tumultuous affray, it occurs when two groups are not organized to kill each other.
When two groups are not organized its actually a rumble. Thats the meaning of 251, rumble, but the
two groups are not organized to kill each other. So, two groups beat each other and then probably they
quarrel and then somebody died. So, in the process, you cannot determine who inflicted the deathblows,
but you can identify who inflicted the blows. So, if you cannot identify those who inflicted the deathblows,
all those who participated in inflicting the blows will be liable for the crime of death during tumultuous
affray. But if you can identify who inflicted the deathblows, then it will not be a crime of death during
tumultuous affray. It may be homicide because you can identify the one who killed the victim.

Now, before the Anti-Hazing Law, this used to be the law that they apply. Yung ano yung hazing at that
time, you cannot determine who inflicted the deathblow. All those who participated will be liable. But if he
is identified, then those who are identified who have inflicted the deathblow will then be liable for a crime
of homicide. Lets say this is the case involving your fraternity here Di ba? Dun sa ano yung never
mind because there are members kasi rito, yung iba, di ba?

Thats the problem. So, there were several persons who ganged up on somebody else theres no intent to
kill. If there is no intent to kill, that cannot be a crime of murder. It can only be a crime of homicide. So, in
other words, if it is a crime of homicide because you can identify the one who inflicted the deathblow,
there is no problem. But if you cannot identify those who inflicted the deathblow and then there is a sort of
a rumble under 251, that is death during tumultuous affray. Now, what happened in that fraternity is that

4D 2007 94
when you go into an initiation, nobody has the intention to kill a neophyte. There is no intention. There is
likewise no conspiracy. Because in conspiracy, there must be an intent to kill from the very beginning. But
if the victim dies, whats the crime committed? If you can identify the one who inflicted the deathblow,
then he will be liable for a crime of homicide. If you can identify those who inflicted the blows but did not
lead or did not lead to the death of the victim, that will only be physical injuries. Thats what happened to
them. Two were convicted for a crime of homicide. The other two were convicted for a crime of physical
injuries, di ba? Tama ba yun? So, anyway, we will go back to murder or homicide? This is the question
that was asked in the bar.

S: Sir, right now, regarding the death caused in tumultuous affray - Ah sir, could it be or there must be a
confusion or (unintelligible) Sir, I do not like the

No, the death during tumultuous affray is actually two groups who do not come into an agreement to kill
each other. Because if there is an agreement to kill each other, then you do not apply 251. You should
have probably two groups see each other and then they quarrel and then somebody died in the process.
That is death during tumultuous affray because there is no intent to kill. Because if two groups come into
an agreement to kill each other, then theres an intent to kill from the very beginning. So, what happens in
251 is that two groups see each other, then probably they quarrel and then somebody died. That will be
251. But in so far as hazing is concerned, there is no more problem because after that case, there is
already a law on anti-hazing. The Anti-Hazing Law will now apply to those who are hazing a neophyte
and then the victim dies. Medyo mabigat yan.

Let's go to Article 248-249. Hindi ba ang daming acquitted doon? An appeal to the Court of Appeals tama
yan, eh. Because there is no intent to kill from the very beginning. There is no conspiracy to commit the
crime presence at that time. He could not be liable. Yun ano dun, yun ang - thats the gist of the decision
of the Court of Appeals. Kaya apat lang ang naging convicted, di ba? Dalawa yung homicide, who are
identified to have inflicted the deathblow. Those who inflicted blows that did not contribute to the death of
the victim, only physical injuries. These I will be explaining later on when we take up physical injuries,
okay?

Now, murder and homicide. Article 248 enumerates the qualifying aggravating circumstances. These are
the same circumstances that youll find in Article 14. These are actually aggravating circumstances, but
they change the nature of the crime if the killing is affected by any of those mentioned in Article 248. Fire,
explosion, evident premeditation, treachery, abuse of superior strength, the use of a motor vehicle,
cruelty, and so on. So, you study those in Article 14. But if the killing is not attended by any of those
mentioned in Article 248, then the crime is homicide. Now, the most important thing that you have to
remember - this was a quarrel that we had when we were answering the problem in the bar exams. Kasi,
you know, when you intend to kill somebody, and then you killed him, and it is attended by any of the
qualifying aggravating circumstances in Article 248, then it becomes a crime of murder. So, if you kill
someone with treachery, evident premeditation, abuse of superior strength, with the use of a motor
vehicle, or with the use of fire, explosion, derailment of a locomotive, or in consideration of price, reward,
then the crime becomes a crime of murder. But supposing you kill someone without the intent to kill, but
in the process the killing might have been attended by any of the qualifying aggravating circumstances,
you cannot consider that as a crime of murder. It is only a crime of homicide. Example, you kill somebody
with the use of fire. When you kill somebody else with fire or explosion, then the crime becomes a crime
of murder.

Now, there is an old case which we discussed last time when we prepared the examinations in criminal
law. The problem kasi then yung nag-fire ng ano he fired a gun to scare those who were rushing to the
stage. He fired the gun and then the bullet ricocheted and then somebody was hit, then suffered injuries
requiring 12 days of medical treatment. So, the problem there is whether or not that is intentional and
therefore, the crime will be serious physical injuries or there is - or it is not intentional. So, in other words,
when the killing it may happen when the killing - when the killing takes place, you might be confronted
with 3 possible crimes. It may become murder. It may become homicide. It may be reckless imprudence
resulting in homicide. Okay. When the killing is attended by any of the qualifying aggravating
circumstances, then it becomes a crime of murder. However, if there is no intent to kill from the very

4D 2007 95
beginning, no intent to kill from the very beginning even if the killing is attended by a qualifying
aggravating circumstance, that cannot become a crime of murder. That becomes a crime of homicide.

So, the old case of People vs. Pugay, ano ha, its like this. There were 3 boys. There were creating a joke
among themselves. As part of the joke, Mr. A poured gasoline over the body of the victim, Mr. C, as part
of the joke. Kumuha ng gasolina, binuhos. That was Mr. A. Then Mr. B got a match and then he ignited
the gasoline in the body of the boy and then he got burned and died. So, if you look at the facts of the
case, then you're asked a problem. What is the crime committed? The first thing that will come to your
mind is that the killing is attended by fire and therefore that should be a crime of murder. Do you follow?
Because he died by fire. But the Supreme Court said, No, that cannot be a crime of murder because
there was no intent to kill from the very beginning. The intention only was to play a joke. It was a part of
the joke and therefore, they did not intent to kill the victim. So, thats what I am saying that even if the
killing - it would appear that it is attended by qualifying aggravating circumstance. If there is no intent to
kill from the very beginning, the crime becomes a crime of homicide. Okay.

But there is also you know, what happened in that case? There were two crimes committed. The one
who poured the gasoline is liable for reckless imprudence because if that was a joke, then he could have
exercised the required diligence of a good father of a family in playing a joke because a joke is a lawful
act. Thats correct. Joke is a lawful act, thats part of the joke. But the one who ignited the gasoline is
liable for a crime of homicide because there is no intent to kill from the very beginning and the victim dies,
then the crime becomes homicide. The one who ignited the gasoline - So, thats ano, thats a good
decision. Why? Because as we have studied in Paragraph 1 of Article 4 when you perform a lawful act,
and then different from what you have intended to commit, then that is unintentional crime. I mean, you
were performing an unlawful act, although different from what you have intended to commit, then that
becomes a crime of homicide, di ba? He dies. Although different from what he intended to commit. But if
you are performing a lawful act, in the performance of such lawful act you caused the death of somebody
else, that cannot be homicide. That cannot be murder. It becomes a crime of reckless imprudence
resulting to homicide. Do you follow?

Magiging reckless imprudence resulting in homicide. Example, you fire a gun in a public place. As a
result, somebody is killed. It does mean you have no intention to kill, but you are performing an unlawful
act because firing a gun is a crime of alarms and scandal. So, whatever the consequence of that firing of
the gun, you will be liable for a crime of homicide. But if you are performing a lawful act like you are
scaring the crowd because they were already rushing to the stage. Ang nakalagay dun sa problem, they
were rushing to the stage and then he tried to push them back. But they insisted, so he fired the gun to
warn them, to scare them so that they will not go up to the stage. Was he performing a lawful act? He
was performing a lawful act because it was lawful for him to scare. So, whatever is the result of that lawful
act, the result is reckless imprudence. That is not an intentional crime so it becomes only reckless
imprudence. The problem with the Supreme Court is that there is a case in March 2006. I think
Calimutan. The case is People vs. Calimutan, penned by Associate Justice Chico-Nazario. May nag-
away. Then naayos na, naayos na sila. Then he threw a stone. The back of the victim was hit. He did not
suffer any injury only to find out that his spinal column was affected. So, he was operated, and, as a
result, he died. Sabi ng Supreme Court reckless imprudence yan eh. Thats not reckless imprudence.
Thats an intentional crime because his throwing a stone is wrongful. It can never be a lawful act. But they
said that he did not exercise the required diligence of a good father of a family of throwing a stone. Tama
ba yan? Yes?

S: Sir, lets say for example, a policeman fires a warning shot and the bullet hit somebody else.

P: Reckless imprudence yon.

S: But aren't policemen required to fire a warning shot before they fire at the escapee or the offender?

P: Well, thats part of their rules of engagement. They should first fire a warning shot.

S: Yes, sir. What if that warning shot is the one that killed somebody?

4D 2007 96

P: He will be liable for reckless imprudence. He will be liable because he has no intent to kill. The only
purpose is to warn the escaping prisoner. That will be reckless imprudence.

S: My question is with regard to the bar exam question. He fired the gun. So, you said that because he
fired the gun in order to scare, it becomes a lawful act. Sir, what Im saying in that particular question, do
we still need to qualify the firing, why is it lawful?

What we did was to give an alternative answer. Kasi they were to scare kasi. We do not know what is in
the mind of the examiner. But the first answer is reckless imprudence. Probably the examiner wanted only
to determine whether you know what is reckless imprudence or intentional crimes. The answer is reckless
imprudence resulting in less serious physical injuries. Then, we allow an alternative answer. If the
examinee, however, interprets the scare as unlawful act, then it should be less serious physical injuries.
So, theres an alternative answer. Thats what we do. Kasi we do not know whats in the mind of the
examiner. And I will give another problem later on 247, a very interesting problem.

S: Sir, yung followup ko dun, sir, is the fact that he was part of the security force, sir, was it the material
part of the answer?

P: No, I think what more of what you understand from the - what does the examiner want? Thats the
problem with the examination like that because we do not know whats in the mind of the examiner. So,
we allow an alternative answer depending on your answer. Ganun ang ginagawa kasi you don't know
what's in the mind. I will give you another problem later on where we quarrel and so far as 247 is
concerned.

S: Sir, regarding on the exam, would like to understand because since the policeman are required to fire
a warning shot. But he did not exercise of that lawful act, which was required according by law in case
somebody as a reason why reckless imprudence.

P: The difference kasi of reckless imprudence and intentional crimes under Paragraph 1 of Article 4 is
that when one is performing a lawful act, so, it will depend on you if that act is lawful. If you answer is that
if the act is lawful, then you should be consistent with your answer. Now, if your answer is that the act is
not lawful and therefore performed only - you performed with reckless imprudence then your answer
should also be consistent in your finding of reckless imprudence. Thats why in that problem, if your
answer is that, the act is lawful, then you should be consistent with what crime committed. If you claimed
that the act is lawful, then it should be less serious physical injuries, so that it will be consistent. But if
your answer is that the act is lawful and therefore failed to perform the required diligence of a good father
of a family then it should be consistent with the reckless imprudence resulting in less serious physical
injuries. But if what you claimed is that the act is unlawful then it should also be consistent with less
serious physical injuries, remove the reckless imprudence.

So basically, the key element is really is the diligence of a good father of a family. So let's say for
example, in a bank robbery and then the policemen were outside, and then they fired a warning shot and
it went up to the sky. That will be lawful.

S: So, and then the bullet goes up and And then somebody the bullet goes down, and hit somebody.
Then the policeman are said to have exercised the diligence of a good father of the family. So, despite
the death resulting...

P: Reckless imprudence.

S: But still

P: That would still be reckless imprudence.

S: So, how do you

4D 2007 97

P: No. If your defense is that there is no reckless imprudence then you justify the injury. Then probably
you can put up a defense dyan, it's just mere accident.

Accident under Article 12. So in other words, you have to be consistent with your conclusion. What I am
saying is that whether it is lawful or not if you say that if they are not liable then you have to justify your
answer. And probably that may be outside of his will, and therefore, it is a mere accident. No intent to
cause injury and there is no fault. It will depend on your appreciation.

Okay. So, that will be murder or homicide. It will depend on the intention of the offender. Now, we are
through. We have taken up treachery. You know already what is treachery. There are two requirements.
(1) The attack must be sudden and the other one is (2) that the offenders deliberately or consciously
adopted ways and means in order to commit the crime between impunity, without their lives being
endangered or without giving the victim the opportunity to prevent or repel the attack. So, you know that.

So, these are the crimes when the victim dies. Now, if the victim does not die then that will be a bigger
problem. If the victim does not die then that will be a bigger problem. Why? Because if the victim does
not die then there will be several crimes. It maybe less serious physical injuries, it may be slight physical
injuries, it may be serious physical injuries. It may also be attempted or frustrated felony.

Then we took up in Article 6, how do you distinguish attempted and frustrated felony and physical
injuries? How do you determine the intent to kill? So, if there is therefore intent to kill and the victim does
not die, then it will now be easier for you to determine what is the crime committed. It will be attempted or
frustrated. It is frustrated when the wounds are mortal or fatal and therefore the victim could have died if
no medical assistance was given. If it is not, then it is attempted. The problem is how do you determine if
it is attended by intent to kill? So, you have several factors. I told you in Article 6, you have to determine
what is the weapon used. You have to determine the manner of committing the act, and then if there were
utterances that accompanied in the commission of the act then you also determine what were the
utterances. So, it does not necessary mean that when one is injured with the use of a gun, there is
already intent to kill. You have to take into consideration several factors.

The most important one is in the manner on the execution of the act because you may be using let's
say handkerchief, as I told you handkerchief. The handkerchief is not a lethal weapon capable of killing.
But in the manner of using the handkerchief, it might show an intent to kill. Pag ini-strangle ka ang
ginawa - or you are choked with handkerchief then the manner of using shows an intent to kill. So, it
depends. So, it will be attempted or frustrated if there is intent to kill. If there is no intent to kill, then you
have three choices as a rule. So, you have your 263, serious physical injuries; then you have your 264,
less serious physical injuries. And then 266, slight physical injuries, tatlo.

Yung serious physical injuries dapat imemorize nyo yan, 263 because - 263 becomes very important
when you take up 294 on robbery with violence. Yung 263 becomes important because of the provisions
in robbery with homicide or robbery with violence under Article 294.

Like for example, what is serious physical injury number one? When one becomes imbecile, insane, or
impotent. Imbecile, insane, impotent, then the crime is serious physical injuries.

And then you have Paragraph 2 when you become blind or when you lost one eye or any part of your
body except reproductive organs or organs then the crime becomes serious physical injuries under
Paragraph B of 263. Or you leave a scar, permanent scar, you lost a finger, or a toe then the crime is
likewise serious physical injuries under Paragraph C, or when it requires a medical treatment of more
than 90 days that is also serious physical injuries. Or when there is incapacity of more than 30 days,
incapacity or it will require a medical treatment of more than 30 days that is also a serious physical
injuries. So, you remember the numerations of serious physical injuries for purposes of 294, Paragraph 2,
3, 4 of 294. Okay.


4D 2007 98
Now, what about the other injuries that may be sustained, are you liable? Now, less serious physical
injuries is determined by the number of days of incapacity and medical treatment. If the incapacity is more
than 9 days but not more than 30 days, less serious physical injuries. If the treatment requires more than
9 days but not more than 30 days, then that is likewise less serious physical injuries. If the treatment does
not exceed 9 days, or not more than 9 days, or he become incapacitated for not more than 9 days, then
that becomes slight physical injury. However, if it will not require any prolonged treatment or incapacity,
then the crimes becomes ill-treatment or maltreatment under 266. That is also slight physical injury, but it
is better to call it maltreatment or ill-treatment under 266. Walang injury - may injury but it does not
require prolong treatment. Pumunta ka sa hospital, pinauwi kana pwede kanang magtrabaho, yun thats
maltreatment or sometimes they called it ill-treatment under Article 266.

What about serious intentional mutilation or intentional mutilation. What are these crimes? Now, serious
intentional mutilation, it will depend on what is mutilated. If what is mutilated is a reproductive organ, then
that is serious intentional mutilation. Any other part of the body mutilated other than the reproductive
organ is what we called intentional mutilation. It becomes serious when it is reproductive organ. It is
intentional mutilation when it is not a reproductive organ. But mutilation may also be a serious physical
injuries. If you cut off one finger, that is also serious physical injuries. You cut one finger that can be also
intentional mutilations. How do you differentiate the two? If the intention is only to injure, then 263. But if
the intention is to mutilate, then that is intentional mutilation. Akin yung kamay mo tapos pinalo mo ng
martilyo, intentional mutilation yun. But in the process of a quarrel, nag away kayo, and then one of the
fingers was cut off because of the quarrel, then that is serious physical injuries.

Now, you go to 247. This is now the problem that was asked in the bar, 247. Sabi ko yung mga law
students from Ateneo, I think they were able to answer this problem. 247 is an absolutory cause. So,
there is no such thing as attempted or frustrated death during tumultuous affray. There is no such thing.
The crime becomes physical injuries during tumultuous affray if the victim does not die. There is no
attempted or frustrated. It is only infanticide, parricide, murder, and homicide where you have attempted
or frustrated. There is no such thing as attempted or frustrated death. If the victim does not die, then it is
physical injuries.

Then you go to 247. It is an absolutory cause where the victim who has committed the crime but he is not
criminally liable by reason of public policy; therefore, that is an absolutory cause. So, if the law says that if
a spouse surprises the other spouse in a sexual intercourse with another man or a woman, and then
immediately thereafter kills one or both of them, then the person shall be liable for the penalty of
destierro. But if nobody dies then there is no penalty. Of course, immediately thereafter that means that it
allows a reasonable amount of time to expire one hour is immediately thereafter. So, if you surprise
your wife or your husband in the act of sexual intercourse and then there is a gap of one hour from the
time that you surprise your wife with the act of sexual intercourse at the time that you kill your wife that is
still covered. The immediately thereafter there does not necessarily means immediately after you saw
your wife. Interpret ng Supreme Court yan law student na yan kay People vs. Francisco Abarca. Have
you heard about that case in the 80s? That is the famous case of Abarca. I do not know if he was
accommodated. What happened kasi kay Abarca, he was a law student in Tacloban. He came to Manila
for a bar review for 6 months review. The bar exam then was November. So, he left the beautiful wife with
two young children when he came to Manila. Of course, he loves his wife so much. So, after the bar
exams, after a period of seven months, six months for the review, and then one month for the bar exams,
he went back to Tacloban. Then of course, the first thing that he did when he arrived in his house was to
look for his wife, natural. Then when he opened the door he saw his wife in the act of sexual intercourse
with the doctor. Now, the problem with Mr. Abarca is that, he did not do anything after he saw his wife in
the act of sexual intercourse. He went to a friend and then barrowed a gun, Armalite pa. And then he
went back to the house after a period of one hour has already lapsed. Of course, the man was no longer
there. So, he fired the gun to his wife. The wife survived. And then he went out from the house. He looked
for the man. The man was already playing mahjong with some of his friends then he fired the gun. And
then all of them survived, but all of them have suffered injuries.

So, he was charged with - what is the crime charged? Ha? Ano? Complex crime. Walang namatay.
Complex crime or frustrated murder complexed with attempted murder. Then he was convicted by the

4D 2007 99
lower court for frustrated parricide because the wife survived and for a complex crime of frustrated murder
complexed with attempted murder, so far as the man because there was a lapsed of one hour. The
interpretation of the lower court is that he should have killed or he should have fired the gun immediately
after. So, he went to the Supreme Court, he was acquitted. Why was he acquitted? Of course, he was
taking up law, probably, he wanted to become a lawyer then the man was a doctor, between a lawyer and
a doctor. Of course, the Supreme Court will choose the lawyer.

So, do you know what they thought about that one hour? The Supreme Court said that immediately
thereafter does not refer to a fixed period of time. It is rather that at the time he fired the gun, he was not
yet in control of himself because of what he saw. So, he's not - the problem with Mr. Abarca is that after
the bar exams came out, he failed in the bar. Until now, he is not yet a lawyer. Then the doctor already
died. Alam mo naman sa probinsya He went to another place practice his profession. He had no more
patients. He became a drunkard, and then he died of sickness. Of course, sino pa maging pasyente nya?
OB-Gyn yun eh nakipag-sexual intercourse sa pasyente nya!

Then, you know what happened with Mr. Abarca? They reconciled.

He reconciled with the wife?

Yeah. They had another two children. He reconciled with his wife. Now, he is a manager of He is
they're making good in Tacloban. Well known family 'yan eh. But he did not take the bar anymore. But he
was convicted for reckless imprudence. First, the conviction there was reckless imprudence because he
was performing that is what we are saying. Because an absolutory cause is lawful act, you are not
criminally liable. So, when he fired the gun against the man, he was performing a lawful act. But he was
negligent because other persons were shot. So, he was convicted of reckless imprudence resulting in
physical injuries. Convicted sya ng reckless imprudence resulting in physical injury. But of course, if he
wants to take the bar exam, he can still take the bar exam, kasi wala namang covered ang conviction
dyan. You know why he did not take the bar exam? Because he reconciled the wife, he said that I will not
leave my wife anymore. That is a true story. You ask all those from Tacloban they know the family. So,
that is what I meant by that immediately thereafter.

Now, the question in the bar exam is this: Mr. A, he was charged with a crime of murder because he
killed a paramour but he was able to put up this defense of death under exceptional circumstances under
247. And then the court acquitted. Then the court did not find him guilty of the crime of murder but
imposed a penalty of destierro. Destierro ang penalty nyan eh, and then in the same order, the court
required the accused to pay the indemnity of 50,000 pesos for the death of the victim. So, he imposed a
penalty when he found that the person is not liable. But because there is a penalty of destierro, so he
imposed a penalty of destierro, because that is a penalty, he also ordered the payment of 50,000 as civil
indemnity. Is the order is correct? I told the students, sabi ko the destierro in 247 is not a penalty. The
destierro there is for the purpose of protecting the offender because he is prohibited from entering a
certain radius to be protected from possible revenge or harm from the heirs of the victim. 'Yun ang
purpose nun. Therefore, thats not a penalty. If it is not, therefore a penalty, then it is wrong to impose a
civil indemnity of 50,000 pesos. Yan ang sagot.

The other problem is, just as well, we have some problems with that question. The second question was,
while suffering a penalty of destierro, he entered the prohibited area, and found, and then he was caught
in the act of smoking or using dangerous drugs. Question? Is he entitled to Indeterminate Sentence Law?
No. Probably, what is in the mind of the examiner is that, you are not entitled to Indeterminate Sentence
Law if you evaded sentence. Thats one of the disqualifications. Ang disqualifications ng Indeterminate
Sentence Law, then you have death, reclusion perpetua, life imprisonment, prison, discretion of prison,
habitual delinquency. And when the penalty is one year or less, or evaded sentence. So, when you go to
a prohibited area covered by a penalty of destierro, that is evasion of sentence, and therefore, you are not
entitled to Indeterminate Sentence Law because thats one of the disqualifications.

Now, the problem, however, is at that in the second crime, the crime that he committed, while he evaded
sentence is illegal use of dangerous drugs. And the penalty of illegal use of dangerous drugs is six

4D 2007 100
months rehabilitation. So youre not really entitled to Indeterminate Sentence Law because if you are
convicted of use of dangerous drugs under Section 15, the penalty is six months rehabilitation. And
therefore, you are not really entitled to Indeterminate Sentence Law because Indeterminate Sentence
Law is applicable only to imprisonment of more than one year. Mali yung premise ng tanong eh, di ba?
Baka kako ang kadalasang saguitin eh, not entitled to Indeterminate Sentence Law because the penalty
of illegal use is six months rehabilitation, not imprisonment. Ngunit ang gusto ng examiner there is
evasion of sentence. May evasion of sentence but the crime that he used in the problem, there is a
penalty of only six months rehabilitation. So we put an alternative answer that if the answer is not entitled
because the penalty of use is only six months rehabilitation, that will also be correct. Nagkamali yung
premise.

Okay, then the other one is the this has not been asked in the bar exam. The second part, or the last
part of 247 because what you think of 247 is applicable only to spouses. It may also apply to the daughter
and their seducer. That means the daughter and her seducer so, in other words, the father kills the
daughter. Thats what the law says. This law applies also to the daughter and her seducer. So, what does
that mean? It means, therefore, that there is a crime of qualified seduction or simple seduction being
committed. Then you have to refer yourselves to 337 and 338 of the Revised Penal Code to understand
that. Under 337, the law provides that when a girl between the ages of 12 and 18 consents to carnal
knowledge or even sexual intercourse through abuse of confidence, or committed by domestic servant, a
teacher, or those of religious calling, then the crime becomes a qualified seduction, as long as the woman
is of good reputation.

Now, you go to the second part of 337, and then there is a seduction there, of the daughter, but what is
the law that is applicable is the first part of 337. The other one is Article 338, the crime of simple
seduction. When the girl between the ages of 12 and 18, virgin, consents to carnal knowledge through
deceit, then that becomes a crime of simple seduction. In other words, the gravamen of the offense in 337
and 338 is that, 337, the young girl consents to a sexual intercourse because of the abuse of confidence
of the offender. Then in Article 338, the young girl consents to a sexual intercourse because she was
deceived by the offender. Like for example, between the ages of 12and 18, she consented to a sexual
intercourse requested by the boyfriend. Sabi ng boyfriend marahil eh, o sige pumayag ka na. Bakit
papakasalan naman kita eh. I will support you. And then natamaan ng pangako, as usual. Pangako ng
pangako yung lalake, di ba nabola na yung babae. And then the girl consented to sexual intercourse,
believing that the boy will marry her. So what happens? Buntis yung babae, then the boy did not anymore
show up. That is simple seduction because she should not have consented to a carnal knowledge if not
for the promise to marry, pero delikado yan. But of course, that is seduction.

Yung qualified seduction naman, lets say teacher, the girl is between the ages of 12 and 18, and then the
teacher abused the confidence of the student, 17 years of age, and therefore, consented to a sexual
intercourse, that is a crime of qualified seduction, do you follow?

Alright, you go back now to 247. If the daughter now is being seduced, and there is an ongoing sexual
intercourse between the daughter and the offender, in a qualified seduction or in a simple seduction, and
then the father kills the man or even the daughter, 247 applies as an absolutory cause. That is the
application. Kaya lang unfair don sa daughter. But the law says, in so far as the daughter and the
seducer, hindi sinabi na seducer lang ang pinatay.

S: Sir, how is that so you have conditions precedent, do you have to be liable for the crime of seduction
before you call

P: Hindi naman. It does not necessarily mean that a conviction is necessary. What he can prove is that
he killed them because there was an ongoing seduction. No need for a conviction. Anyway, as you all
know, in your rules of criminal procedure, if you put up that absolutory cause, then the burden will be
shifted on the part of accused. He just convinced that there was an act of that there was a seduction
being committed but as I said, thats very hard to established. The only problem is


4D 2007 101
S: So, sir the mere fact of one being a teacher and the other one being the student between 12 and 18
does not automatically make it a seduction, sir? Qualified seduction?

P: If you would make it a qualified seduction, the sexual intercourse is not to abuse of confidence and the
girl of good reputation. Although the law says, virgin ka, virgin, ano ha? That virginity refers to good
reputation. Even if somebody loses her virginity she may still be of good reputation, meron ganon eh di
ba? Okay, so you have to refer to 337 and 338. But anyway, I hope that we can reach crimes against
chastity despite of the time.

Okay, and then, you go to intentional mutilation. What is intentional mutilation? When the purpose is to
mutilate a reproductive organ, serious intentional mutilation yan eh. Anong reproductive organ, alam na
natin yon? You know the penalty is harsh. Anong penalty ng serious intentional mutilation? Para kang
pumatay, ganun? Reclusion ano? Reclusion perpetua. Its like a crime of murder, reclusion perpetua. Eh,
para na rin patay kasi yung victim. Wala ng pag-asa. Putol na yung kanya e.

Then, you go to intentional abortion. Duel? Just read what is duel. Its a crime ha. Yung referee liable din
yan sa duel.

Then, you go to intentional abortion or unintentional abortion. What makes it intentional is that the
purpose is to kill the fetus, but if the killing is not intentional, then it becomes unintentional. So you have a
pregnant woman, she quarreled with the husband. The husband suspected that the fetus being carried by
the wife is not his. So gusto nyang patayin yung bata. Binugbog nya yung tiyan nya. Then the mother and
the fetus died. What would be the crime? Then that will be parricide with intentional abortion because the
purpose is to kill the fetus, the wife died. But if the purpose is to kill the wife and then the wife died,
including the fetus, then the crime is parricide with unintentional abortion. Its a complex crime under
Article 48 because you are committing two crimes with only one criminal resolution. But supposing, they
are not related. The killer is not the womans spouse. The woman is killed and then the fetus died. Then
you have to determine what is the purpose of the offender. If the offenders purpose is to kill the fetus,
then it will be murder or homicide depending circumstances surrounding the killing of the mother or of the
woman, with intentional or unintentional abortion. It will depend on what is the purpose. But if the purpose
is to kill the fetus, and therefore, there is no intent to kill the woman, but the woman died, then that will
only become homicide with intentional abortion. But if the killing is attempted with treachery and then the
purpose is to kill the woman attended by treachery or evident premeditation, then it becomes a crime of
murder complexed with unintentional abortion. It could be very hard to conceive a crime where the
intention is to kill the fetus and then the killing of a woman becomes a crime of murder. Mahirap yon. If
the purpose is to kill the fetus, then the killing of the woman will only be homicide because there is no
intention to kill the woman. The intention only is to kill the fetus and the woman dies, is homicide with
intentional abortion. But if the purpose is to kill the woman attended with treachery then the fetus likewise
died, then the crime is also murder with unintentional abortion. Mahirap yun murder with intentional
abortion, very hard. Unless the intention of the offender is to kill both the woman and the fetus, eh baka
mag separate crimes yan. It will become separate crime because you have two intentions now. One is to
kill the woman and the other one is to kill the fetus. Although, it may not happen. But, theoretically, there
are two intentions, ah separate crime yan. Theoretical yan but it may not happen.

S: Sir, pano pag single act?

P: Depende na yun. Kasi kung patayin mo, lets say patayin mo yung nanay sa likod. This one is an
actual case. It think I told you about the case of Inocencio Gonzalez. Alam nyo yon di ba? O ano ang
sinabi ng Supreme Court, if there an intent to kill from the very beginning, then the crime only becomes
homicide, thats why he was liable for a crime of homicide. What happen there was he was very lucky
because the fetus survived, but the one who was killed was shot with the same bullet that cannot be
attempted or frustrated, its only physical injuries.

Okay now, we go to 254, illegal discharge of firearm. Alam nyo na yun what is illegal discharge of firearm.
When the gun is aimed without intent to kill, then illegal discharge of firearms. When the gun is loaded
with bullets but the bullet did not fire, then that will be frustrated illegal discharge. When the gun is not

4D 2007 102
loaded with bullet aimed at somebody else, but the offender did not know that there was no bullet, but his
intention only is to aimed the gun without intent to kill, whats the crime? Impossible crime of illegal
discharge of firearm.

Okay. So lets go to 263, the one I was telling you. Now, you read this together with 294, paragraph 2-5
so that you will already understand what Im saying. You will find out in paragraph 1 of Article 294 that on
the occasion of robbery, homicide, rape, intentional mutilation, or arson is committed, the penalty
reclusion perpetua or death. Now, in paragraph 2, when the injuries sustained are those one in
subdivision 1 of 263, di ba? In paragraph 2 of 294, that if the injuries sustained by the victim are those in
subdivision 1, then that is robbery with serious physical injuries. And then in paragraph 3, if the injuries
sustained are those one in subdivision 2 Article 263 or in paragraph 4 in subdivision 3 of Article 263, then
the crime will also be robbery with serious physical injuries. In other words, yung paragraphs 2, 3, and 4
of Article 294, the crimes there denominated would be robbery with serious physical injuries. Walang
pagkakaiba. Three, four, five serious physical injuries lahat yan except in paragraph 5 of 294, if the
injuries are just like or less serious physical injuries, then you denominate the crime of simple robbery, in
paragraph 5 of Article 294. Now, what is so important with 263?

Now, if you go to 295-296, supposing four men committed a crime of robbery, all armed and therefore
they will look like a band, di ba band? So, four armed men, malefactors committing a crime of robbery,
band is an aggravating circumstance, hindi ba? Now, you look at the succeeding Articles in 295-296, if it
is committed by a band, nakalagay dyan, then the maximum penalty shall be imposed. If it is committed
by a band, then the maximum penalty is unbailable. The question therefore is this, ang sinasabi don sa
committed by a band, it refers only to those robberies with violence referring to paragraphs 3, 4, and 5 of
294. Nakita nyo ba? Ang sinasabi rin band, can only be appreciated if the robbery falls in 3, 4, and 5 of
Article 294. Do you follow?

Okay. Now, if on the occasion of robbery, the victim became blind or became insane because of the
robbery, committed by four armed men, what is the crime committed? Or if the problem is on the occasion
of robbery, a person was injured requiring 90 days of incapacity or requiring more than 90 days of
medical treatment, that is also serious physical injuries. Four armed men, ano ang difference non? So
thats the problem. So the problem is, if the robbery falls under paragraph 2 of 294, and the robbery falls
in paragraph 3 or paragraph 4 of 294, committed by four armed men or more than four armed men, what
is the crime committed and whats the difference?

Now, if the robbery with serious physical injuries falls under paragraphs 3, 4 or 5 of 294 then the crime is
robbery in band. The band there is used in the denomination of the crime because it is committed by a
band. Robbery in band. Now, if however, the robbery with serious physical injuries falls under paragraph
2 of 294, he became blind and became insane, became imbecile, ano ha, committed by four armed men,
then denominate the crime as robbery with serious physical injuries. The band is merely an aggravating
circumstance. That is the interpretation. Kung ang robbery mo eh 3, 4, 5, committed by a band, they you
denominate the crime as robbery in band. But if your robbery falls under paragraph 1 and 2 of Article 294,
then denominate the crime as robbery with serious physical injuries aggravated by a band. Not robbery in
band. Its not covered by 295 and 296. So thats why if the robbery if the serious physical injuries is
subdivision 1 of 263, then robbery with serious physical injuries committed by a band as an aggravating
circumstance. But if the serious physical injuries fall under subdivision 2, 3, 4 and 5 of 263 committed by
four armed men, the crime becomes robbery in band. Do you follow? Thats what I was saying.

Okay. Now, less serious physical injuries will be between 9 and 12. So madali yan eh. Walang
masyadong enumerations yan. Between 9 and 12 lang yan. Likewise, in slight physical injuries not more
than 9 days. So that this is slight injuries but remember that slight physical injury is always a light
felony. Light felony yan. That is a light felony and therefore, it cannot be complexed with other crimes
against persons. Less serious physical injuries pwede din i-complex yan because of the penalty are not
less serious physical injuries, I mean slight physical injuries because that is a life felony. So, we now go to
the crime of rape. Mr. Patajo, are you ready?

Yes, sir.

4D 2007 103

P: What is rape?

S: A rape is committed if a man forces himself to have carnal knowledge with a woman.

P: Hindi naman ganun. Indulges. A man indulges in carnal knowledge of a woman. So, if a man indulges
in carnal knowledge of a woman in any of the following circumstances, yan. Number one?

P: Number one, sir, is to force, intimidation and threat.

P: Number two?

S: Sir, through fraudulent machination or grave abuse of confidence

P: Number 3 yan. Letter C yan. Deprived of

S: Deprived of reason or otherwise unconscious.

P: Letter C?

S: Letter C, letter C, sir to

P: Yan fraudulent.

Fraudulent machination or to abuse of authority.

P: Number 4?

S: Number 4 is below 12 or demented, sir.

P: So, in Paragraphs 1, 2, and 3 is consent an element? Is non-consent an element of the crime of rape
in paragraphs A, B, and C?

S: In A, B, and C, sir, consent is an element.

P: Without the consent is an element. What about Paragraph D?

S: Sir, the material consent is the material.

P: Even if the woman consents. So, how do you call the rape in Paragraph B?

S: Sir, statutory rape.

P: So, there are two statutory rapes?

S: Yes, sir.

P: One is less than 12 and then demented.

S: Yes, sir.

P: What do you understand by a person demented?

S: Sir, a person who is demented is actually mentally ill, sir.

P: Obserbahan mo kung mentally ill yan, maraming kasing stages ng mentally ill.

4D 2007 104

S: Sir, the first demented, the mental capacity of the person is equal to that of a minor who's probably
mentally ill.

P: Hindi naman. Para sa exception yan eh. Ang demented diyan, one who cannot give intelligent
consent. In other words, you want to have sexual intercourse with a woman, hindi niya alam kung mali o
tama iyon, eh. In other words, she cannot give an intelligent consent. Okay.

Now, lets go to force or intimidation. What do you understand by okay, carnal knowledge muna. What
do you understand by it? The law requires carnal knowledge or sexual intercourse?

S: Sir, carnal knowledge.

P: So, its not sexual intercourse.

S: No, Sir. Penetration is not an essential element.

P: So, what is then the element?

S: Sir, there was the intention to

P: To penetrate? Wala, Kung my intention to penetrate baka maging attempted rape lang yun.

S: Because he has intention to lay her down and -

P: Lie down? Why you cannot do can you not do it in some other positions? Kailangan may intention to
lie down?

You use that phrase, "the intention to lie down" when you are talking of a crime thats either attempted
rape or acts of lasciviousness. You use that What? Probably what you want to convey is slightest
penetration. That is carnal knowledge, slightest penetration. So, a woman claims to have been sexually
ravished or raped. A consummated crime of rape, but she says that upon medicolegal examination or
after a genital examination shes found to be still a virgin. In other words, no hymenal laceration, no
injuries on the hymen, and therefore, the doctor says, you are still a virgin. But she claims that a crime of
consummated crime of rape was committed against her. How will you rule?

S: Sir, I would still rule against the accusers because penetration is not an essential element or it could
be consummated.

P: So, hindi sabi niya, Youre still a virgin. How can you claim that youre sexually ravished when in fact,
you are still a virgin? How will resolve that?

S: Sir, because for a hymen to be broken to is not an element of the crime. Basically, sir, there must be
some sort of penetration.

P: What?

S: Sir, it can be the slightest penetration, sir. First -

P: It is not a requirement because slightest penetration basically committed in the crime. When do you
say there is a slightest penetration?

S: Sir, the woman could not be

P: But that is the totality.


4D 2007 105
S: Sir, the labia

P: The opening, the opening. Its either labia majora or the labia minora, the outer lip or the inner lip.

S: Yes, sir.

P: What about if touches the face? O, bakit? Pwede din natin sabihin yan. What crime? Is that slightest
penetration?

S: No, Sir.

P: So, what is it? Pwede bang malaman kung anong purpose ng lokong yan. So, once it touches the
opening, that means the labia majora or labia minora or the outer lip or inner lip it becomes the crime of
consummated crime of rape. If he does not touch the labia majora but touches the face, anong tawag
dun? Ako di ko alam ang tawag eh, but I can understand what Im saying. I know what Im saying. Its not
the opening but it touched a part.

S: The private organ, the mouth.

P: Mouth? Opening lang yang sinasabi, not the mouth. The face is like this, here, here. Around. Not on
the opening but around it.

S: Sa may singit, sir?

P: Ang layo naman. Its like that here on the face here, not on the lips. So, what is the crime?

S: Its not consummated rape. If you can prove it that there is intention to lie down the victim it is
attempted rape.

P: Then thats attempted rape. Sometimes some say, intent to lie down with the woman or in sometimes
they call it - intent to penetrate. Because lying down is ano eh broad yun, eh. Pinahiga mo yun eh, thats
lying down. But there is no intent to penetrate, eh. So, if there is intent to penetrate, but the problem is
how do you know if there is intent to penetrate? How will you know? It still depends on the facts.
Supposing the man insisted on inserting his private organ, but he was prevented by the girl, so that he
could not insert his private organ. Then that is sure intent to penetrate. But there was no penetration
slightest because the woman forced the man, di ba? Ganun yun, eh. May intent to penetrate but because
there is no slight penetration, that will become a crime of attempted rape. Now, the law likewise says, that
in a crime of so, if the victim, therefore, is between the ages of 12 and 18, what are you going to
establish in order that one will be liable for a crime of rape? If the victim is more than 12, never mind 18,
more than 12, you want the accused to be convicted of the crime of rape. He is not demented. She is
already more than 12. What are you going to do?

S: Sir, the rape was consummated against her carnal knowledge was consummated against her
reason.

P: You have to prove. Now, if the carnal knowledge was attended with force or intimidation.

S: Paragraph 8, sir.

P: From Paragraph 8, what do you understand by force? What is intimidation? According to you, through
force or intimidation. What do you understand by force? Force that cannot be resisted? In other words, in
order - if the woman cannot resist it, and then there is carnal knowledge? It becomes a crime of rape
because the force cannot be resisted? So, should it be irresistible force?

S: Yes, sir.


4D 2007 106
P: Sobra yun pag yung force that cannot be resisted.

S: Sir, I think this force is any type of force, sir.

P: Not necessarily force that cannot be resisted.

S: Yes, sir, as long as it is enough for her not to be able to prevent the intent to penetrate.

P: Thats correct. What about deprived of reason? What do you understand by deprived of reason or
otherwise unconscious, is there a force there?

S: Sir, if she was drugged sir or -

P: She might be asleep or was boxed. What about a woman whos sleeping? A woman who is sleeping.
Can you do a crime of rape when the woman is sleeping? Is she unconscious?

S: Yes, sir. She is probably unconscious. Assuming that there is a possibility that

P: There was an old case, I think 10 years ago, when the woman was already sleeping but she did not
resist. If she is sleeping and then you go on top of the woman and then she wakes up - of course she will
wake up. Then, she did not persist, ayun baka walang rape yun because she did not resist, eh. When a
woman is sleeping and then you go on top of her she will be awaken. But if she does not resist at that
time, walang rape iyon. That is not unconscious. What is unconscious is that, she only discovers that
somebody inserted his private organ after shes awakened. Yun ang unconscious or deprived of reason.
What about sleeping? There was an old case, where the accused was convicted because what happened
there was she was sleeping. Then when she was sleeping, somebody went on top of her. Naramdaman
niya eh. But before that she thought that it was her husband. Hindi nagrereklamo. Sabi niya ah, husband
ko to. Okay lang. Ang problema after he inserted his private organ, I do not know kung bakit ano- ah,
Hindi ito ang asawa ko! Hindi ito ang asawa ko! Hindi sinabi sa case kung bakit, eh. Naramdaman niya,
hindi pala yun ang asawa niya. Baka maliit e, o iba yung korte. That is still a crime of rape. She did not
resist him because she thought then that he was her husband. Yun, sinabi ng Supreme Court, rape yan.

Then there was another case in Palawan. Actress yun ng British, eh. Kasama yung boyfriend then they
have been drinking, nag inuman sila dun. Then the woman was a littler tipsy, probably tipsy, nakatulog.
Because this case came later than the first one, so the boy yung ano dun, yung parang bellboy doon sa
hotel. Yun pala ang ano, he went on top of the British stage actress and then he charged the boy with
rape and he was convicted in the lower court. But in the Supreme Court the boy was acquitted because
she was not totally asleep. She was conscious. It does not fall under otherwise conscious kasi she
testified on cross examination that she could feel what was being done to her. So, if she felt theres
something but she did not resist. She only resisted after eh. And then the other problem is she fails to file
the case, belatedly. Hindi niya agad fi-nile yung kaso, eh. So, ang suspetsa ko dun, the boyfriend later
discovered that she went to bed with another man, and the boyfriend discovered, fi-nilan niya ng rape,
iyon ang suspetsa ko. So, that boy was acquitted in follow up. Swerte. Nakalibre!

So, if you are tipsy, sabi nga, you are not deprived of reason, you are not unconscious. So, delikado.
Yung na-drug marahil, pwede yun. Na-drug and then went to sleep, ayun. The law is very clear kasi
deprived of reason. If you are not deprived of reason or otherwise unconscious then you will not fall under
Paragraph 1. Fraudulent machination, wala pang naco-convict diyan sa fraudulent machination na yan.
Dinagdag nila diyan, hindi ko alam what do they want to convey. Ginawang estafa yan. That should be a
crime of estafa, panloloko, eh. Nilagay sa rape, eh. A prostitute can be the subject matter of rape? Can a
prostitute file a case of rape?

S: Yes, sir.


4D 2007 107
P: The woman of questionable morality can be the subject matter of rape? Yes. The law does not make a
distinction. Unlike in the crime of qualified seduction and simple seduction, the woman as a rule should
always be of good reputation, but not in a crime of rape. So, what is fraudulent machination?

S: Sir, its the employment of

P: Yun nga ang problema dun. The example that they gave you in congress is that, lets say even a
customer. Youre a prostitute, you have a customer and then you agreed that you will pay the prostitute,
lets say in the amount of 5,000 pesos. Then after that she agreed to have a sexual intercourse because
you will have to pay her 5,000 pesos. Now, after the sexual intercourse, the boy said, No, I will not pay
you, pulis ako eh. Libre ang pulis, eh. According to Congress, rape yun. Thats the meaning of rape.
Thats rape because she should not have agreed to sexual intercourse if not that is now fraudulent
machination. Fraud, eh. Di ba ang estafa can be committed also through fraud? Likened to estafa yun eh.
Or you have a prostitute the asking price is 5,000 pesos. Then sabi niya, Hoy, tama na sayo isang libo
eh. Hindi ka naman pala magaling. So, 1,000 lang. Thats a crime of rape. That is fraudulent
machination. Wala pang nagaganyan eh. Meron na ba? Wala. The prostitute will charge the customer? If
she does that, she will lose all her customers. She will not do that. They included that, but that was not
there before the amendment, but they included that. Okay. So, more than 12, you have to prove without
the consent?

Between the ages 12 and 18, ha, as long as it does not fall under qualified or simple seduction. So,
between 12 and 18 you always prove that is done through any of those mentioned in Paragraph A, B, and
C. In all cases. There is one exception. When the rape is commitment by the father over the daughter or
stepfather or stepdaughter even if the daughter consented to a carnal knowledge as long as the daughter
is between the ages of 12 and 18 that can still be a crime of rape because according to the Supreme
Court, the moral ascendancy exercised by the father by reason of parental authority substitutes for the
required force of intimidation in a crime of rape. Kasi daw pag more than 12 daw less than 18, pag sinabi
daw ng tatay walang magawa yung anak because of the ascendancy. But if the daughter is already more
than 18, consented to a sexual intercourse requested by the father, the father can no longer be liable of a
crime of rape. Why? Because there is no parental authority to speak of. But the father cannot escape
liability, he will still be liable. He can still be liable for a crime of qualified seduction under the second
paragraph of Article 337. Walang lusot ang tatay, eh. Palagi yun. Kung more than 12, less than 18, nag
consent yung anak, rape yan. Kung more than 18, nag consent yung anak, hindi rape yan, but the father
may be liable for qualified seduction under the second paragraph of Article 337. Nakalagay dun sa
second paragraph ng 337; even if the daughter is more than 18 and is not of good reputation, consents to
a sexual intercourse of the father, the crime is qualified seduction. Kaya walang lusot ang tatay. Dapat
naman, di ba? Okay. So, there is no crime of frustrated rape, Mr. Patajo, ha. Why no crime of frustrated
rape.

S: Sir?

P: Why no crime of frustrated rape?

S: Well, sir, this is a type of penetration was not done because the

P: Yes, because the man did not succeed, so he was frustrated. Now, theres no crime in frustrated rape
because slightest penetration makes it a consummated crime of rape, so only attempted rape. What is
dog-style rape? Do you know what is dog-style rape or missionary rape? Decided case yan. And I will tell
you why, huwag kang tatawa. Babae pang justice ang ng file ng decision na iyan. Si Justice Carpio-
Morales. She distinguished between missionary rape and dog-style rape.

Missionary rape is when the woman and the man face each other. So, frontal ang rape. Dog style is dog
style, patalikod. Now, the difference between the two is that, when it is a missionary rape, it is a simple
rape. Dog style rape is, likewise, a simple rape but aggravated by ignominy. Aggravated by ignominy.
That means under Paragraph 17 of Article 14. It is still a simple rape but there is now an aggravating

4D 2007 108
circumstance of ignominy or moral suffering under Paragraph 17 of Article 14. Not treachery. Hindi rin
mistake of the blow.

People v. Siao, that's a 2001 case. That is also a good question because supposing Mr. Pataco, you
rape the woman, missionary rape. So, that is a simple rape. And then later on, pinatalikod mo, dog style
rape. And then later on, you want again to insert your private organ, it penetrated the anal orifice -
mistake of the blow. Its not the private organ. Oh, question? Pwede mangyari yun, eh. Question, what is
the crime? What are the crimes?

S: Sir. What are the crimes, sir?

P: Oo, what is the crime or what are the crimes? Kung ilan crime yan bahala ka kung ilan. You try to
understand the problem. Tatlong crimes yun. The frontal rape is simple rape. And then the second one is
the insertion of the private organ, dog style. That is also a simple rape aggravated by ignominy. The third
one is another form of rape which we call rape through sexual assault. The insertion of the private organ
into the anal orifice is a sexual assault as a form of rape. Ganun ang sagot nun. Kasi there is an old case
that when you rape when you insert your private organ, ano ha, into the private organ of the female,
then that is rape. And then later on, you insert your private organ into the anal orifice. Sabi ng Supreme
Court that is moral moral suffering, ignominy. But because that is already a crime in itself under 266-B,
that now becomes a consummated crime of sexual assault as a form of rape, because it is not inserted
into the private organ of the female but to the anal orifice. That is not a mistake of the blow.

S: Sir?

S: Sir. Question, sir?

P: You want to try it?

S: No.

S: Why? Whats the question?

S: Sir, just to be clear, when you change position you commit another

P: Yeah, three crimes yan. Rape is consummated the moment that there is a slightest penetration. So, if
you committed a crime of rape frontal and then afterwards dog style, thats another form of rape.

S: Sir, go back to missionary rape.

P: You go back to?

S: Missionary rape.

P: Eh, di pangatlo na yun.

S: Then go back to frontal, four times?

S: Yes.

S: Sir, shouldnt the focus be on the criminal resolution? So, when the assailant is raping the victim and
then well, it's a continuous criminal resolution. So, even if he, ano so, theres only one crime of rape
aggravated by the law because of the dog style. But it doesnt matter kung how many times, but because
of the single criminal impulse

P: Tuloy-tuloy lang sabihin natin nag-Viagra siya. Hindi, for every thats theres no break, eh.


4D 2007 109
P: There is no break.

P: You read the case of People vs. Joseph Orilla, 2004. That will answer your problem. People vs.
Joseph Orilla where the Supreme Court said that in that case the man ejaculated twice. So, ilan crimes of
rape? He ejaculated twice, ano. Sabi ng Supreme isa lang crime of rape. Because according to the
Supreme Court consummated crime of rape is determined by how many times the private organ touched
the opening. So, in other words, you there is one consummated crime of rape, ha. Inalis mo. Tapos
regardless of the interval of time, ibinalik mo. Pangalawang rape yun. Bawat hugot, isang rape yun. That
is the implication. It is determined by the number of times the private organ penetrates the private organ
of the female.

S: Sir, following that argument, sir, let's say nag-change position, sir. 'Yong-position na ipinalit hindi dog
style, sir. Will that be two cases also?

P: Oo, dalawa yun. But the problem is how will you able to prove it, ano. Proving it is another thing but
theoretically if you read that case of Orilla, dalawa yun. Now, if you are the accused, then and then you
believe that you are guilty, prove that there is only one. That will be your defense. But if you can put up a
defense that you did not commit a crime of rape, better. But if you cannot put up a defense, sabihin mo,
isang rape lang. Thats the case of Orilla. By implication, thats the meaning. Yes?

S: Sir, is it true that saying that if there is no ability to penetrate, there should there cannot be any
kind of rape like attempted rape? Sir, what if it is the intention of the accused to really penetrate like it
can be a lascivious act. Can he say that its only act of lasciviousness because theres no attempt to ah,
theres no ability to penetrate?

P: What do you mean no ability to penetrate?

S: Sir, the private part cannot stand up.

P: Then, try a Viagra. May joke nga dyan sa Viagra, Chalice ba yung isa? Chalice ba? Chalice? The
church now is convincing everybody to use chalice and Viagra because it is consistent with their belief
resurrection of the dead. But do not tell that to the public. Dont tell them that the joke came from me. That
will be a matter of defense, eh. Because if you the private organ of the male, ano, he places his private
organ into the private organ of the female. Then, therefore but there is no erection, then there must be
something wrong with that man, ha. Matter of defense, eh. But if there is absence of erection, it will be a
matter of defense, eh. But I doubt if that will be only acts of lasciviousness if really there is an intent to
penetrate. Kasi ang the reason why there is a distinction between attempted rape kasi at saka acts of
lasciviousness. If you look at the definition of acts of lasciviousness in 336, it is merely lewd design, eh.
The lewd design there is merely for the commission of lascivious acts, short of penetration. Pindot-pindot
lang.

Ngayon, if your interpretation is that it is done merely to satisfy ones lust through lewd design, acts of
lasciviousness yun, hindi ba? So, how will you distinguish now if thats acts of lasciviousness or lewd
design? Then, it will depend on the intention of the offender because more than lewd design is attempted
rape, kasi. So, if your problem is that walang erection, incapable of erection, ah, mahirap i-prove yun, eh.
You're incapable of erection, siya lang nagsasabi nun. Then, that will be acts of lasciviousness if theres
no intent to penetrate, hindi ba? What I am saying is that, if there is no intent to penetrate, eh bakit
nandun kung may absence of erection? Bakit nandun sa ibabaw yung lalaki? Conducting surveillance?
Hindi ba? That will be a matter of defense. Sa tingin ko that will still be attempted rape if you can prove
that there is an intent to penetrate.

Kasi yung case dun, you know, this is a case actually involving penned by Justice Kapunan, eh. The
girl testified that there was no actual penetration, ano ha. But he was convicted of consummated crime of
rape in the lower court. They went to the Supreme Court. Ang findings ng Supreme Court, acts of
lasciviousness lang, eh. There was no slightest penetration. There was no slightest penetration. But base
on the testimony, lumalabas that the man only placed his private organ on the private organ of the

4D 2007 110
female. And then, the woman felt something liquid. Oo, coming from the male organ. Sabi ng Supreme
Court, acts of lasciviousness lang yan. Bakit? If he had the intention to penetrate and then that liquid
substance came from the organ of the male, then he could have inserted it. But nandun, eh. The problem
kasi with that case is that the woman was not consistent of the facts she was saying, eh. Hindi malaman
kung hinubaran o hindi, eh. So, conclusion ng Supreme Court, he only masturbated and then placed her
private organ. So, he only masturbated and then he placed his private organ. That is only acts of
lasciviousness because there is absence of intent to penetrate. Well, they resolved the case in favor of
the accused, eh. Yun ang mahirap. They resolved the case in favor of the accused. Biro mo ang layo,
consummated crime of rape, tapos acts of lasciviousness. Ang baba ng penalty, di ba? That was
attempted rape. So, the penalty should be prision mayor. So, what is sexual assault as a form of rape, Mr.
Patajo?

S: Sir, the sexual assault as a form of rape is committed by, again, any person through the following: 1)
By the insertion of the penis in the oral or

P: Anong oral, anong oral?

S: Mouth, oral orifice or anal orifice.

Anal.

Anal orifice, or by inserting any instrument inside the genital or the anal orifice.

P: So, it can be committed against any person that means that the victim maybe a boy, maybe a girl. The
offender may also be a boy, may also be a girl. It does not matter. Now, what you insert is a private organ
of a male into the mouth of any person or anal orifice. Who becomes the offender? The insertion of the
private organ into the mouth or to the anal orifice. Who is the offender?

S: The offender is the one who is inserting the penis.

P: The one who is inserting? I think it will depend who employs force.

S: So, what, sir, kung right to have an erection.

P: Hindi pwede yan. Yung the same sexes yan eh. Hindi pwede yan. That is why the law says any
person.

S: So, sir, its either.

P: Its either. It will depend as to who is the one who is employing force. What about the instrument or
object? Inserted to the?

S: The genital or anal orifice.

P: So, private organ of any person.

S: Male or female (unintelligible)

P: So, if it is inserted to the private organ, then it refers to a woman, not the private organ of a man.

S: No, sir.

P: Can you not insert an instrument or object into the private organ of the male? But the law says any
person, eh, or instrument or object on the anal orifice of any person. Yun ang any person. Even if he is
undergoing treatment for hemorrhoids? Minsan itong batas kasi ano eh, because the law says instrument
or object, eh. Thats why the question in one of the cases that was brought to the Supreme Court, I think

4D 2007 111
thats in 2003, whether or not that instrument or object includes a finger includes a finger because the
law says instrument or object. The law does not say instrument or object or any part of the body except
private organ. Nakalagay dun instrument or object, eh. So, any instrument or object is something that is
not part of the body, kasi instrument or object, eh. So, a man now, if a man touches the private organ of a
male, a male person touches the private organ of male person against his consent, is that covered by
sexual assault as a form of rape?

S: Sir, what sir.

P: Okay, you insert a vibrator into the private organ of the female against her consent, there is no
problem. Thats covered. You insert an instrument or object into the anal orifice of any person that
becomes also a crime of sexual assault. As long as the purpose is to satisfy ones sexual lust, ha,
because these are all crimes involving satisfaction of ones lust. You touch the you use your finger in
touching the private organ of the female, what is that?

S: Sir, act of lasciviousness sir.

P: He use the hand of a male third person. He touches the private organ of a male person. Whats the
crime?

S: Act of lasciviousness, ata.

P: Hindi ba covered yan ng ano, sexual assault? That is covered by sexual assault. The Supreme Court
already interpreted that instrument or object includes fingers or any part of the body other than the private
organ of the male. If it is the private organ of the male, then it becomes a crime of rape. If any part of the
body, the tongue, the fingers, that is sexual assault as a form of rape. Kaya yung genitalia na sinasabi
mo. That also applies to male person. Oh, lets say a male person forces another male. Okay. You
undress and then touch his private organ. Ginanun niya. Thats covered by sexual assault as form of
rape. Okay. So, thats not anymore acts of lasciviousness. Thats already been settled, ano ha. But if you
touch the private organ of the female, then afterwards in one occasion you went up and then touch the
breast of the woman. Yun, dalawang crimes yun. The touching of the private organ of the female is a
sexual assault as a form of rape and the touching of the breast or you fondle the breast. Thats a crime of
acts of lasciviousness under Article 336. Do you follow?

Okay. Now, sexual assault as a form of rape, that is insertion of the instrument or object or the insertion of
the private organ. It maybe male-female, female-male, or the same sexes. Now, if the victim of the crime
rape dies, whats the crime committed?

S: Sir, it is qualified rape.

P: No, thats a crime of rape with homicide. That is a special complex crime. That is a crime of rape with
homicide. If the rape is attempted but the victim dies, what is the crime? It is attempted rape with
homicide. If the victim of rape did not die, is he committed a crime of rape? The victim did not die, what is
the crime? Rape. What about the injuries? She almost died.

S: Attempted qualified rape, sir.

P: Rape? Qualified rape? No. All the injuries now will become the element of violence as a crime of rape.
Qualified rape, why? Because the victim is suffering injuries?

S: It could be, sir, qualified rape.

P: If this is already unnecessary, is there such a crime as rape with attempted homicide? Or rape with
frustrated homicide? There is none because that is a special complex crime. That is not a complex crime
under Article 48. What about if a vibrator is inserted in the private organ of the female, and then the

4D 2007 112
female died? You inserted a vibrator into the private organ of the female, and then the female die. Of
course, the insertion is without consent. What is the crime?

S: Sir, rape with homicide.

P: Thats a crime of sexual assault as a form of rape with homicide. That is also a special complex crime.
Nakalagay sa law. If the victim dies on occasion of sexual assault, then the penalty shall be reclusion
perpetua. So, that becomes sexual assault with homicide as a special complex crime. Okay. We
continue, ah. Hindi na pala kayo nag-break. Kawawa naman kayo.

Now, next Wednesday, so that you can follow the sequence, ano, you read the paragraph, you read
Section 5 of Republic Act 7610, child abuse. Section 5 of Republic Act 7610, child abuse. So, that we will
make a connection between 8353 on statutory rape, and then, likewise, sexual violence under Republic
Act 9262. That is the law on domestic violence. Republic Act 9262, VAWC. So, you look at sexual
violence under 9262 and then we will connect it with the crime of rape. Kasi, there are some problems
kasi dito, eh. Anong law ang applicable, 7610? Meron din Rev. 7610. Meron din sexual violence sa 9262.
Ano ang i-apply mo, Revised Penal Code 7610 or 9262? Di ba? And then afterwards, we go to 267
kidnapping and serious illegal detention up to Article 267, all crimes involving deprivation of liberty. You
read together with Article 286 grave coercion, ano, 267 crime involving deprivation of liberty. You read
together with Article 286, and then Article 342 on forcible abduction. Kasi magkakapinsan itong crime na
ito, eh. Magpipinsan. And then, Section 7 of Republic Act 7610, human trafficking and child trafficking.
Section 7 of Republic Act 7610 and Section 4 of Republic Act 9208 on human trafficking para alam nyo
ang distinction, ano ha. Is the crime either be forcible abduction, maybe grave coercion, maybe
kidnapping, maybe child trafficking, maybe human trafficking? Pano mo i-apply yan? Ang dami. Then
afterwards, I will give another assignment.

Sir, is slightest penetration rule apply also to the what sexual assault as a form of rape?

No, there is none.

So, there must be insertion.

Consummated parati yun.

RA 7610 (Anti-Child Abuse Law) and RA 9262 (Anti-VAWC Law) in Relation to Article 266-A.

Article 266-A. Rape: When And How Committed.

So we took up sexual assault as a form of rape and then we also took up rape as defined in Article 266-A.
And then we also took up assault, sexual assault with homicide, rape with homicide as a special complex
crime. Not complex crimes under Article 14. So you know already sexual assault as a form of rape. You
know what is missionary rape, you know what is dog-style rape. And then I told you that it will depend on
the ages of the victim. If the victim is less than 12, what do you call this rape? Statutory rape. If the age of
the victim is more than 12 and less than 18, consented with carnal knowledge, usually, there is no rape.
Except when it is committed by the father on the daughter because the moral ascendancy as arising from
parental authority substitutes the force or intimidation required under the law of rape. And then if the
victim is more than 18, consented with carnal knowledge, definitely there is no rape. If it's committed by
the father, the father is still liable for the crime of qualified seduction under the second sentence of Article
337. So walang escape ang father.

Qualified Rape

Then there is another group of crime which is rape. This is what they call the crime of qualified rape. But
qualified rape because of Republic Act 9346, they say the qualified rape has been mooted by 9346
because you can not anymore impose the penalty of death. Why? Because a qualified rape is, one, when

4D 2007 113
the rape is offended by a qualifying circumstance mentioned by law when it is properly alleged and
proven during the trial then the mandatory penalty of death shall be imposed.

So because of the Death Penalty Law and therefore the penalty of death can no longer be imposed, sabi
nila wala daw qualified rape. Meron pa rin qualified rape. Only that you can not impose the penalty of
death because there will be a difference between saying that there is there is no crime. So that is the
crime of qualified rape. It's not mooted because there is still a crime of qualified rape. What is only
prohibited with the imposition of the penalty of death.

So what is then qualified rape? If the rape is attended by any of the 10 circumstances in the law on rape:
If the victim is less than 18 years of age and the offender is the father or stepfather, or common law
husband, or stepdaughter, or the daughter of the common law wife. Now, if you properly allege minority
and then the relationship and then prove them during the trial, then the penalty of death shall be imposed
because you can not impose the penalty of death, then you invoke the penalty of reclusion perpetua.
Kaya lang, you know, in Supreme Court, probably they do not really want to impose the penalty of death.
Yung allegation of minority in that crime of qualified rape is not merely to allege that the victim is a minor.
You have to allege what is the actual age of the victim at the time of the commission of the crime of rape.
So, if you allege with the information that she was then 18 years of age - that is not correct. You have to
allege that she was 17 or 16 or 14 at the time of the commission of the crime of rape and the accused is
her biological father or stepfather. If prove those during the trial, then the penalty of death shall be
imposed.

There are many. If the victim is7 years of age. If the accused was suffering from a sexually-transmitted
disease and, at that time, he knows that he was suffering AIDS or sexually. And then if the victim was
pregnant and the accused knew that she was pregnant. The offender is a police or member of the military
and the victim is under the custody. The victim is of a religious calling, nun, nirape yung madre, naku po,
penalty of death 'yun. So those are the circumstances that will qualify the crime as a crime of qualified
rape, properly alleged and proven during the trial.

Republic Act No. 7610 Special Protection of Children Against Abuse, Exploitation and Discrimination Act

Now, before we go to 267, then we go to other laws that may alter or change your answer if you know
what is the law that is applicable. So, let's go to Republic Act 7610 which is the Law on Child Abuse.

Now, 7610 or Child Abuse became effective sometime in 1993. So, 1993 came ahead than the Law on
Rape because the new law on rape became effective sometime October 22 -I think it's October 22, 1997.
So nauna yung Child Abuse Law than Republic Act 8353.

Republic Act No. 7610 Section 5 Child Prostitution and Other Sexual Abuse

If you go to Section 5 of Republic Act 7610 and then you read, likewise, Section 5, the law says that if the
victim of crime of rape is less than 12, then the law that is applicable is the law on rape in the Revised
Penal Code. So, therefore, if the victim is less than 12 under Section 5 Paragraph B, then the law that is
applicable is the Revised Penal Code because that is a statutory rape. Provided, however, that if the
victim is more than 12 and less than 18, then the law that is applicable is Republic Act 7610 unless the
crime is acts of lasciviousness, then the penalty to be imposed is the penalty under Republic Act 7610,
that's Paragraph B.

So what do you mean by that? It simply means that if the victim is less than 12, then in the crime of rape
then the law that's applicable is Republic Act 8353 or the Law on Rape in the Revised Penal Code. If the
victim who is raped is more than 12 and less than 15 then the law that is applicable is Republic Act 7610
because she is more than 12 and less than 18. Okay? Do you follow?


4D 2007 114
Twelve to 18, rather. Because the statutory rape is 12 to below. It should be its good that you corrected
me. It should be 12 to 18. Thats 7610. Not more that 18. More than 12, but not more than 18. The other
one is less than 12 because that is statutory rape.

Republic Act 9262 Anti-Violence Against Women and Their Children Act

Now, if however there is a relationship between the offender and the mother of the victim or the offender
has a relationship with the victim, covered by Republic Act 9262, that is the Law Of Domestic Violence
Against Women And Children, then the law that is violated is 9262 because Republic Act 9262 is the Law
On Domestic Violence Against Women And Children.

The VAWC or 9262 covers four kinds of violence:
1) Physical violence.
2) Sexual violence.
3) Psychological violence.
4) Economic violence.

Apat ang violence sa RA 9262. Of physical violence, of course, you know is physical violence. Pag sexual
violence, then those sexual violence that may be punishable under the Revised Penal Code. When you
speak of psychological violence then it is a violence that is committed against the victim psychologically.
Tinatakot mo, tine-threaten mo, yon ang psychological. Or when the violence is economic violence. When
the woman is prohibited from enjoying your property and, therefore, the husband does not give her any
money. Sabi, "Sweetheart, punta ako sa Rockwell." "Wala. (unintelligible) maglakad ka!" "Bigyan mo ako
ng kwarta. "Magnakaw ka nalang. In other words, he does not allow his wife to enjoy, then that is what
they call economic violence.

Now in 9262, however, that's the problem, there are penalties for physical violence, psychological
violence, and economic violence. But, there is penalty of sexual violence, but the 9262 covers sexual
violence. Life, nakalagay doon, rape, acts of lasciviousness. There are many choices in 9262, but there is
no penalty of sexual violence.

Now, when is 9262 applicable? It may apply to the following relationships: When the act is committed
against a wife, former wife or has a common child. Naanakan niya, common child or has had dating
relationships or has had sexual relationships, and their children. That means that committed against
women; those I mentioned wife, former wife, has a common child, has had dating relationships or has had
sexual relationships, and their children. Therefore, these are the victims.

So, if these are the victims, therefore, the law covers sexual violence, what law now will be if the offender
is the stepfather? The offender is the stepfather of an 11-year-old girl. So, a man is living with a woman
who has a child of their own, and they had sexual relationship. They are living together as husband and
wife. But the stepfather of the child later can be and then 11-year-old girl surrendered herself,
consented to a sexual intercourse requested by the stepfather. So, he will find now that is a crime of rape
that his statutory rape because the woman, the girl is less than 12 even if she consents, that is always
rape.

But, the law says in 9262, that if the victim is the child of a common law wife and there's a sexual
violence, the law that is applicable is Republic Act 9262. But, there is no penalty for sexual violence in
9262. So what rule is violated? The laws violated would be Republic Act 9262 in relation to the law and
rape in the Revised Penal Code. Do not answer it immediately as Revised Penal Code because the
relationship of the offender and the offended party is covered 9262. So, violation of Republic Act 9262,
otherwise known as the Law on the Violence Against Women and Children in relation to statutory rape
under the Revised Penal Code.

Now, if however, there is no relationship between the offenders. So, a man was walking and then he saw
a little girl, 11 years old, not related, comes up to the girl, then gives her candy. Then after giving candy,
the girl consented to a sexual intercourse or carnal knowledge. What is the crime committed? Then the

4D 2007 115
offender will now be liable under the Revised Penal Code because that is statutory rape and there is no
relationship covered by 9262, in so far as the offended and the offender are concerned.

Okay. Now, if the victim is more than 12 and less than 18, so a man raped a girl between the ages of 12
and 18. What is the law violated? Definitely the Republic Act 7610 as provided for in Paragraph 2 of
Section 5 in relation to the law on rape in the Revised Penal Code.

But if there is a relationship between the offender and the offended parties covered by 9262, then the law
that is violated is Republic Act 9262 in relation to the law on rape in the Revised Penal Code. Do you
follow?

Republic Act 9262 Section 5 Acts of Violence Against Women and Their Children

Okay. So, let's go to Section 5. Now, Section 5, as I've said, covers victims of child abuses less than 18
years of age or those more than 18 years of age who cannot properly manage themselves. That means
those are suffering from mental disorder, covered yun by child abuse because they think like a child.
Hindi lang less than 18 yon and also those who cannot properly manage themselves because of mental
deficiency.

Now, in letter A, that is now the indifference between a woman who is more than 18 years of age who is
raped. If a woman is raped beyond and her age is beyond 18years of age, then the law that is violated
is the law on rape in the Revised Penal Code.

Okay. So, a girl was sold by her mother. A girl was sold by her mother. Probably, the girl was 11 years of
age to a foreigner who likes to have young children. The girl was, likewise, raped. The 11-year-old girl
was, likewise, rapes. And then because he's a foreigner, you went to the highest court in Pasig. What is
the highest court in Pasig? Victoria Court. Andun sa (unintelligible). That is the highest court. And with the
consent of the owner of the motel, allowed the foreigner and the girl to rent a room where he could use
the girl for sexual abuse. But the girl consented, she was raped. The mother, likewise, was raped. Ganon
ang nangyari kay Inday eh. Mamaya sabihin ko sa'yo.

So what happened? So, consented? What is the crime or what are the crimes? Are there crimes
committed? There are three crimes committed there because she is less than 18 years of age. In fact,
she is 11 years of age. The mother will be liable under Section 5 Paragraph A as a procurer. Thats the
meaning, pimp, under Section 5 Paragraph A.

The foreigner will be liable to the crime of rape. Why crime of rape? Because the girl is less than 12 years
old, that is always rape under the Revised Penal Code.

Now, the administrator of the motel who knew of what the man did to the girl because he allowed them to
go inside the room will be liable for violation of Section 5 Paragraph C. The owner, the administrator, of
the place where the act is committed is likewise liable under Paragraph C.

Now, if however the girl is more than 12, but less than 18, what's the crime committed? There could be no
rape. Why no rape? Because the woman consented, more than 12 na eh, less than 18, di ba? But still the
foreigner or the mother would still be liable under Paragraph A, still a procurer. And then the man could
still be liable under Section 5 under the second part for the crime of child abuse. Thats the meaning of
child abuse or sexual exploitation. And then the place where it took place is still liable under Paragraph C
of Section 5. Walang lusot diyan eh.

But, supposedly, if the victim is more than 18, allowed herself to be used, it doesn't anymore fall under
Republic Act 7610 because she is already of age. She is not considered as a child for purposes of
Republic Act 7610.

So, the bar exams last year or 2 years ago, the examiner combined the provisions of Section 5 and the
law of rape. Maganda yung tanong eh. Ang ginawa niya, the mother allowed her daughter to be used by a

4D 2007 116
foreigner, and the foreigner instead of having sexual intercourse with the girl, he inserted a vibrator in the
private organ and she dies, di ba? She dies inside a motel where the administrator or the manager
allowed the foreigner to engage in that lascivious act inside the motel.

Ang tinanong ngayon anong crimes committed. Anong crimes? Yung mother is still liable as a pimp,
procurer. What about the foreigner in so far as the girl is concerned? He is liable for the crime of assault
sexual assault with homicide. Ang sabi nila homicide daw eh. Ang sagot nila homicide, why? Because
there was no intent to kill from the very beginning. He did not intend to kill the girl, and she died. Kako, no.
Ano yan, sexual assault because if the sexual assault - there is also what they call statutory sexual
assault. Di ba kung rape, statutory rape. But if you do not insert your private organ, but instead the
instrument or object, it becomes sexual assault. Therefore, you do not also prove consent in material
consent is immaterial instability is less than 12. So, if she died, if the girl consent, immaterial. Consent is
immaterial if the victim is less than 12. If she dies, if the girl consented to the insertion of a vibrator and
she is less than 12, then the crime is sexual assault with homicide under the Revised Penal Code as
amended by Republic Act 8353. And, then, the man who the (manager) of motel will still be liable under
Paragraph C pf Section 5. Do you follow?

Yon ganon. Maraming sumagot homicide daw eh, because there was no intent to kill. Hindi kako sexual
assault yan with homicide because she is less than 11. So, everybody agreed that that should be the
answer. So, that was the answer in the bar exams. Eh buti nalang ganon lang ang tanong he. Mahirap
kase pag pinag they ask you a question, and then probably the answers could be found in two or three
special laws. Yun ang mahirap. Like in the next topic, of course, you know already what is battered
woman syndrome, di ba? Under 9262, we took that up when we took up Paragraph 1 of Article 11, the
defense of battered woman syndrome, okay.

Revised Penal Code Article 267 Kidnapping and serious illegal detention

Let us go now to kidnapping and serious illegal detention under 267. Before we go to 267, I told you to
read those 267 together with 286. Yung grave coercion. yung forcible abduction under Article 342, child
trafficking under Section 7 of Republic Act 7610, and then the Section 4 of Republic Act 9208 on human
trafficking. Kasi lahat ito taking yan eh of person. It is involved the taking of a person.

Now, when you speak of 267, the intention of the offender is to deprive the liberty. 'Pag 267, deprivation
of liberty. Para mas madali ninyo maintindihan. 'Pag 286 sa grave coercion causing somebody to do
something against his will ang grave coercion 286. You force somebody with the use of violence or
intimidation against his will whether it is punishable by law or not.

Revised Penal Code Article 342 Forcible abduction

Then we go to 342, to forcible abduction, it may only be committed against a woman. The purpose there
is to commit lewd design. In other words, you force a woman to go with you in order to commit lascivious
acts, lewd design, ano? Excluding rape. Only lewd design. Lewd design does not include rape.

Republic Act 7610 Section 7 Child Trafficking

And then when you talk of child trafficking under Section 7 of Republic Act 7610, then it is the sale of a
child or when the child is used in a barter, in a sale, sale or barter of a child.

Republic Act 9208 Section 4 Acts of Trafficking in Persons

Now, when you talk of violation of Section 4 of Republic Act 9208, then it simply means that the person
likewise is sold, recruited, in exchange, and so on, but there is a purpose in Section 4. It's like also sale or
barter ano ha. But in Section 7 of Republic Act 7610, the mere act of selling or barter is already
punishable under Section 7 of Republic Act 7610.


4D 2007 117
But in Republic Act 9208, aside from the selling, aside from the exchange, abduction, aside form
marriage for convenience, there is a purpose. Merong purpose. Bakit binibenta mo yung bata? For sexual
exploitation. May purpose yun. For involuntary servitude, for bondage, for sexual abuse, and so on,
prostitution. May purpose, which may be included in Section 7. Okay, do you follow?

Kidnapping and grave coercion

Now, as we go over to kidnapping and grave coercion, para alam ninyo ang ibig sabihin. The kidnapping
is a serious illegal detention, there must be an element of lock up. Ang grave coercion, there is no yet
lock up.

Example ng lock up. Lock up doesnt necessarily mean (detaining) a person, kidnap in an enclosure. Ang
kidnapping and serious illegal detention, there is no need that you should be placed in an enclosure or
inside the house or inside the (unintelligible) and so on. What is sufficient is lock up. Ano yung lock up?
When your freedom or your liberty or your freedoms have already been completely restrained. Meron ng
lock up yon. Like what? You are tied with your hands or your feet. Tinali ka sa punongkahoy, tinali ka
doon, nilagyan ka ng blindfold. Nilagyan ka sa bunganga mo ng handkerchief so that you cannot talk and,
therefore, you cannot see, you cannot talk, you cannot move. Yun ang lock up. If there is already lock up,
then from that moment, your liberty is already restrained. Kidnapping yan. Do you follow?

Now, even if the intention of the offender is to kidnap. If at the time that they were arrested, there was no
lock up, grave coercion lang yan. That is the meaning.

Example: A child was taken against her will. She was being brought inside the car. But before the child
could be brought to the car, the person was arrested. That cannot be kidnapping because at the time that
he was arrested, the child was not yet lock up because there was no yet complete loss of freedom, wala
pa. Pwede pa siyang sumigaw. Pwede pa siyang tumakbo.

In other words wala pang loss of freedom at that time. But that will not be a crime of kidnapping, that
cannot be a crime of kidnapping, but there should be a crime, 'di ba? Ano ang crime doon? Then that is
grave coercion under 286 because somebody is forced to do something against his will. And what is the
force? He is taken against his will, but theres no lock up, then it becomes grave coercion.

Sir, doesn't that make it an attempted kidnapping?

Mahirap i-prove yung attempted kidnapping here, hija sa totoo lang. Very hard to (conceive) a crime of
attempted kidnapping. Puwede pa nga niyan kidnapping for ransom, attempted, but I will tell you the new
doctrine in kidnapping for ransom later on. Hindi. Walang attempted because of that doctrine laid in
People versus Arnulfo Astorga. That is the meaning of because it was first held in the case of People
versus Arnulfo Astorga on lock up.

Kidnapping and serious illegal detention, and forcible abduction

Now, if it is now a woman, pag ang inabduct mo iyong babae, dalawa ang possible crime yon. It maybe
kidnapping and serious illegal detention or forcible abduction under Article 342. The only difference is
that, iyong forcible abduction youre also making a woman against her will, eh. The only difference is that
is the purpose.

You abduct a woman against her will in order to commit to lewd design. Lewd design except rape ha.
Lewd design is you commit lascivious acts, eh. Your purpose of taking the woman is to commit lascivious
acts. Probably, ayaw ka nya. Ayaw 'yong lalaki panget, eh. Iyong lalaki gusting-gusto, so he abducted the
woman and then started kissing her against her will, 'yon ang forcible abduction. The purpose is not to
deprive her liberty, 'yon.

Kidnapping and serious illegal detention, and child trafficking


4D 2007 118
Now, so 'yon ang mga main distinctions, but I will tell you later on what are the doctrines to all these
crimes. Now, if you go to Section 4 of Republic Act 7610, child trafficking, you will find there in 267, that if
the victim of kidnapping is a minor regardless of the period of detention, that is always kidnapping and
serious illegal detention. Basta minor yan o babae yan, if the purpose is to deprive her liberty, that is
always kidnapping and serious illegal detention, di ba, under the last enumeration in Article 267.

But, there is a crime of a child. The victim of a trafficking under Republic Act 7610 under Section 7, there
is also a crime of trafficking. Okay. Now, in Section 7 of Republic Act 7610, the child is not taken against
his will or her will. The child is sold. Binebenta 'yong bata or ipinapalit sa iba, barter, yon. So, that could
not be kidnapping because the taking is with the consent of the custodian probably or the mother or the
father. But, it becomes a child trafficking, because it is punished by Section 7 as selling or use in a barter.
Okay.

Kidnapping and serious illegal detention, and human trafficking

Now, you go to Republic Act 9208, the law on human trafficking under Section 4, hindi ba? Sa Section 4,
tingnan natin 'yong enumerations dun. It may include maraming acts that are punished. I think it's from
GA, B, C, D, E, F, G, H up to eight enumerations, ano ha, eight enumerations. But you look at the acts
punished under Section 7, recruitment, employment abroad, sale, barter, employment abroad, adoption,
marriages for purposes of going abroad, and then you have also employment abroad, or also getting
arranging travels abroad for the purposemay purpose dun, except in Paragraph G.

In other words, all the enumerations from A to H, because the last one is when persons are used in
armed activities, iyong ginagamit na mercenaries. That's the last part. Except in Paragraph G, the only act
that is without the consent is found in Paragraph G. Nakalagay dun sa second part of Paragraph G, when
a child is abducted against his will or with violence, nakalagay dun.

In other words, in Paragraph G, when the child is abducted with violence or against his will, nakalagay
dun eh. Why is it not that is not kidnapping? Because when you talk of human trafficking or even child
trafficking, it's supposed to be that the transfer of the person is with the consent of the mother or the
victim. 'Yon ang ibig sabihin ng trafficking.

Unlike in kidnapping and serious illegal detention, the taking is always against the will, and, therefore, it
becomes deprivation of liberty. Bakit sa Paragraph G, nakalagay dun the abduction of a child, di ba, with
violence, but still it is not kidnapping. Bakit human trafficking under Section 4? Because of the purpose.
Because of the purpose, and what is to sell? Nakalagay dun what is the purpose, for the purpose of
selling his or her organs.

In other words, let's say, I got a child against his will with violence. If my purpose there is to deprive his
liberty, then that is kidnapping and serious illegal detention. You cannot deprive his liberty. But if a child
against his will, I take him, then I forced him to donate, I forced him to sell his organ, the kidney or any
vital organ, di ba? Then the law that is violated is Section 7 of 9208.

Now, if you now go to the enumerations from A to H, ano ha, except the Paragraph G, 'yang purpose ng
trafficking enumerated by law is either for prostitution, sexual exploitation, involuntary servitude, debt
bondage, then on the last Paragraph, Paragraph H, for the purpose of armed activities, mercenaries.

In other words, to differentiate it from Section 7 of Republic Act 7610, iyong Section 7 of Republic Act
7610 basta nagbenta ka ng bata 7610 na 'yon. Walang purpose eh, ibinenta mo inexchange mo, 7610
'yon. Ngunit kung nagbenta ka, adoption by a foreigner, arranging a marriage so that you can go abroad,
arranging a group tour in order that you can go abroad, di ba, employment abroad to bring you abroad,
lahat yan for the purpose of may purpose dun, either sexual exploitation, involuntary servitude, debt
bondage, prostitution, and so on. The law that is violated is in Section 4, 9208. Except ang isa lang.
Except that if the child is abducted for the purpose of selling his or her organs under section in the
Paragraph G, even if he is abducted against his will, if the purpose is to sell his organs, that is not

4D 2007 119
kidnapping and serious illegal detention. That will fall under Section 4 of Republic Act 9208 by express
provision of law, hindi ba?

Ngayon, the problem however is - we now go back to 267. There is another crime of kidnapping of a
minor under article 270. So, do not be confused. So, therefore, if you are asked a problem in my class or
in the bar exam and the victim is a minor, you read very carefully the questions.

Oo, pag deprivation of liberty, sigurado ka 267. Ngunit kung walang lock up, grave coercion. Ngunit kung
child trafficking, then Section 7 Republic Act 7610. For purposes of exploitation or any of the purpose or
any of the purposes mentioned by Section 4 Republic Act 9208. But, there is also a crime of kidnapping
of a minor under 270. Kaya kung kidnapping ng minor yan, dapat and complete answer is if the answer
falls under 267, they can denominate the crime as kidnapping and serious illegal detention if the victim is
a minor.

Revised Penal Code Article 270 Kidnapping and failure to return a minor

Because if your answer is kidnapping of a minor, mali 'yan. Because that is different 270 is different
from 267. Iyong 270 kidnapping of a minor is committed when the person in custody of the child is
required to return that child to the person who has lawful custody of that minor and he refuses, the crime
is 270.

Kidnapping of a minor or failure to return a minorbuti pa sagutin mo na lang failure to return a minor.
Kasi ang time frame ng kidnapping or failure to return a minor. It is different from kidnapping and serious
illegal detention in 267. Nakita nyo ba sa 270? Do not be confused with that provision with 267. Okay.

Let's go to some problem areas in 267. Although the problem was already in the bar exams two years
ago in the case of People versus Larraaga, et al, ano ha. Kaya lang dun sa question na 'yon meron
kaunting diperensya. But anyway, it was already decided by the Supreme Court. The Supreme Court just
recognized that when the victim in kidnapping is killed or a crime of homicide is committed or murder is
committed or rape then it is now a special complex crime. It is now special complex crime, not a complex
crime under Article 48. So, you denominate the crime as kidnapping and serious illegal detention with
homicide, tapos sinabi nila puwede pang murder or rape as special complex crime. Okay.

Now, when the victim is not a child or is not a female, then the detention should last for more than How
many? Three days. Kidnapping and serious illegal detention. Or when the crime is committed by
simulating public authority, simulated publicpumunta ka binuksan ka sa bahay mo then sabi mo pulis
ka, hindi ka naman pulis, that is simulating public authorities, sumama ka then that is kidnapping and
serious illegal detention regardless of the number of days or detention or when physical injuries or threat
are committed, then kidnapping and serious illegal detention. Madali 'yon.

The problem is kidnapping for ransom. What you read in the book, the crime becomes kidnapping for
ransom when there is an actual demand for ransom even if your ransom is not paid. In other words, if
your child is taken against his will and then the kidnapper calls up the parent, O, give me your money or
else something will happen to your child. Even if the money is not given, under the old doctrine, that is
kidnapping for ransom even though if there is no - mere demand for the payment of ransom is kidnapping
for ransom.

Ayun ang bagong decision ng Supreme Court 2006. Even if there's no demand for ransom, if there is
already intent to demand ransom that is already kidnapping for ransom.

So, even if there is no actual demand, if there is intent to demand ransom that is kidnapping for ransom.
Yon ang bagong decision. Paano malalaman mo kung may intent to demand ransom. If there is no
demand, paano mo malaman? Because under the law kasi nakalagay dun, because the law itself says, if
the purpose is to demand ransom, then it becomes kidnapping for ransom. So they interpreted when
there's a purpose, if the purpose is to demand ransom, then it becomes kidnapping for ransom, di ba?


4D 2007 120
So iinterpret nila ang purpose, if there is an intention then it becomes kidnapping for ransom. How will you
determine if there is no demand, hindi ba? But, anyway, that's the decision of the Supreme Court so we
have to follow. So its not only mere demand. But if there is intent to demand ransom, then it becomes
kidnapping for ransom.

Revised Penal Code Book 2: Articles 269-302 with Cattle Rustling Law

We will have to leave some of the Articles after 271 and 272, although there are some important
provisions. So I think we ended up in Article 267. And then, we discussed some provisions of part of P.D.
9208 on trafficking in Section 4, and also trafficking in Republic Act 7610 under Section 7. Then, we
discussed kidnapping and serious illegal detention in 267. And then I think we took up also slight illegal
detention under 268. If the circumstances do not fall in relation to the provisions in 267, then the crime he
committed is slight illegal detention under Article 268. And then, we took up, I think, a part of Article 342
on forcible abduction of a woman. If the purpose includes lewd design against a woman, then the crime is
forcible abduction under Article 342.

So, I assume that you know already the distinctions between trafficking under 7610, which is merely the
sale or barter of the child without any purpose, and then versus Paragraph 4 Section 4 of 9208. Then, if
purpose or purposes of the trafficking will be those mentioned in Section 4, then the crime that is
committed in 9208 is sexual exploitation, servitude, debt bondage, the use of mercenaries, sale of
organs. Then the law that is violated is Section 4 of Republic Act 9208.

Article 269: Unlawful Arrest

So, we'll proceed to 269. Then, I told you also that if there is no lock-up and the initial intention of the
offender is to deprive the liberty of an individual, but there is no real lock-up, then the crime is grave
coercion under 286. Now, if there is intent to demand ransom, then the crime is kidnapping for ransom. If
the victim dies, then kidnapping with serious illegal detention with murder or homicide.

Now, 269 is the crime of unlawful arrest. The counterpart provision of 269 is Article 124. In Article 124,
arbitrary detention is committed by a public official who detains any person without any legal ground,
whereas unlawful arrest is committed by a private individual. Probably, this refers to a citizen's arrest.
When the arrest is not with any legal ground committed by a private citizen, then the crime is unlawful
arrest.

Article 270: Kidnapping and Failure to Return a Minor

And then 270, the one that I reminded you last time, that when the custodian of a minor is ordered to
deliver to the lawful custodian the minor, then the crime is kidnapping and failure to return a minor under
Article 270. I told you last time under 270. I told you last time that do not confuse with the crime of
kidnapping and serious illegal detention where the victim is a minor and if not, with a failure to return a
minor under Article 270.

Now, 271, 272, 273, 274, you just read them. They refer to crimes involving abandonment, forcing a
minor to abandon his home. They have slavery, when one is taken against his will in order to enslave
him. You just read them.

Article 275: Abandonment of Person in Danger and Abandonment of One's Own Victim

Now, we'll go to 275. That's very important. Abandonment of one's victim and abandonment of a minor
under 275, or a person in the verge of death. So, there are actually three acts that are punished under
275.

1) If you caused injury to another through reckless imprudence. So you are driving a vehicle and then
you hit a bystander. Then, you injured him. And then, you abandoned him. That is a crime, aside from

4D 2007 121
reckless imprudence. So, aside from reckless imprudence resulting to physical injuries, if you abandon
your victim, you are, likewise, liable for a separate crime of violation of Article 275, abandoning your
victim. But that provision is only applicable to reckless imprudence, not applicable to intentional crimes.
So, if you stab somebody else with the intent to kill, but your victim does not die and then you leave your
victim, you will only be liable for frustrated or attempted, but no separate crime of abandonment because
abandonment of one's victim is applicable only in reckless imprudence.

2) The other one is abandonment of a person in the verge of death. This one was asked in the bar
exams, I think, eight or nine years ago. A person was dying at 12 o'clock in the evening somewhere in
Luneta Park, Luneta in Manila. He was already dying. A person saw him already dying but did not give a
helping hand. So, the question is: Is he liable under Article 275 for abandoning a person in the verge of
death? That question can be answered by first knowing if that place is uninhabited or inhabited. That law
is only applicable when the place is uninhabited. Now, whether or not Luneta at 12 o'clock is uninhabited
or inhabited, then that will give you the proper answer. Sabi daw nila uninhabited because at 12 o'clock
there are no persons in Luneta, but that should be inhabited. So, there is no crime because Luneta Park
is not uninhabited. It is inhabited. Even if there are no persons at Luneta Park at 12 o'clock, that does not
make the place uninhabited because Rizal is there. Nandun si Jose Rizal.

Now, what is an uninhabited place? When there are no people at any given time. If it so happens that
there are no people at that time, that does not make the place uninhabited. Let's say, in the evening at 12
o'clock, there are no persons around the area. There are many houses. Is that uninhabited? That is not
uninhabited. That is inhabited. So, there is no crime. 275 is not applicable.

3) Then, the other one is when you abandon a child less than seven years. That is also abandonment
under 275.

Article 277: Abandonment of Minor by Person Entrusted With His Custody; Indifference of Parents

Now, 276, you just read. Walang mahirap sa 276, abandonment also. It is in 277 that's also very
important indifference of parents. There are two acts that are punishable actually in 277.

1) The first part is that you deliver the person without the consent of the guardian or the parent to any
institution.

2) The second part is indifference of parents. When the parents have financial capability if they are
financially capable and they do not give education to their children, that's a crime under Article 277. That's
a crime of indifference of parents. Kinakailangan daw' yan, 'pag may kuwarta ka, paaralin mo 'yung anak.
What if 'yung anak ayaw mag-aral? Wala ka nang magagawa. So, that's the second part of 277.

Article 278: Exploitation of Minors

278, I believe, has already been amended by Republic Act 7610 exploitation of minors. It may fall under
child abuse. 'Yung act is punishable. Why? Because the minor children is less than 16 years of age or
below, or sometimes 12 years of age or below, they are required to perform dangerous tricks. 'Yung
kumakain ng apoy, espada, circus. That's true. That's 278. 'Yung dangerous falling, 'yung acrobats, 'yung
kumakain ng apoy, o kumakain ng espada, yung mga acrobats, circus. Those are punished under Article
278. But if the acts fall under child abuse, then the law that is applicable is Republic Act 7610.

Article 280: Qualified Trespass to Dwelling

Now, 279, you just read 279. Let's go to 280, which is more important grave threat. Grave threat and
light threat under no, that's dwelling rather. Qualified trespass to dwelling. And then 281, other forms of
trespass. Now, there are two crimes punished under 280.

1) One is trespass to dwelling.


4D 2007 122
2) And the other one is qualified trespass to dwelling, which is different from your violation of domicile
under Article 128. Because in Article 128, it may only be committed by public officers tasked to make
seizures or searches in dwellings or domicile; whereas in Article 280, it is committed by persons other
than public officials, when one enters the dwelling of another without the consent of the owner of the
house. The other one is when the entry is done with violence, threat, or intimidations, then it becomes
qualified trespass already.

So, if it a mere entry without the consent of the owner, then it becomes a crime of trespass to dwelling.
But if the entry is attended by violence, then it becomes a crime of qualified trespass to dwelling. The
question that is usually asked is: Supposing the entry is not done through violence, but right after you
enter the dwelling you commit violence against the owner of the house? So, if the problem is you are
prevented from entering, then you box the owner of the house and then you enter. So, there's no
problem. The crime is qualified trespass to dwelling.

But supposing you enter and then later on you caused injury to the owner of the house. What's the crime
committed? The entry is not accompanied by violence. But if the entry is accompanied by violence, there
is no problem. But if the entry is not accompanied by violence and then after the entry, violence is
committed, what's the crime committed? Will it be trespass to dwelling and another crime? Or qualified
trespass to dwelling?

Now, the violence required of qualified trespass to dwelling should not be so serious. It is merely violence
in order to cause entry. Now, if you enter the dwelling without any violence, but right after the entry the
owner of the house says, "Why did you enter?" and then you box the owner of the house. In other words,
if the violence is still in connection with the entry, then it's still qualified trespass to dwelling. Pag pasok
niya, "O, ba't ka pumasok?" Sinuntok mo. In other words, if the violence has something to do with the
entry, even if the violence took place after the entry, the crime is still qualified trespass to dwelling. But if
the violence has nothing more to do with the entry, then dwelling now becomes aggravating circumstance
if there is another crime committed.

So, you entered the dwelling then you killed the owner of the house right after the entry. That is not the
violence required of qualified trespass to dwelling. The violence should not be so serious. It is merely an
act in order to it is an act because you are prevented to enter. That's the meaning of violence. But if you
commit more than what is required as violence, then there will only be one crime committed. That's
homicide or murder, or frustrated murder, or even attempted murder or frustrated homicide, or attempted
homicide. If there is an intent to kill, dwelling now becomes an aggravating circumstance. Dwelling now
will become an aggravating circumstance.

Article 281: Other Forms of Trespass

Now, 281 is other forms of trespass. You correlate this with Article 312 on occupation of real rights or
occupation of real property. 312. Now, other forms of trespass, there are two things that may happen.
This involves a vacant property. Now, if the vacant property is not fenced, it is not fenced and then you
enter, then nobody is preventing you from entering. Open space. If it is an open space, you enter, there is
no crime committed because nobody is preventing you. But if the owner is in the property and then he
prevents you from entering, that is other forms of trespass because you are being prevented from
entering a vacant property.

But supposing the owner is not there, but he fenced the property, so that's now the application of 281. An
enclosed estate, you enter that enclosed estate, what is the crime committed? That is other forms of
trespass. Why? The putting up of a fence of a vacant property is a manifestation on the part of the owner
of the property that he does not allow anybody to enter. So, if it is an enclosed estate and then you enter,
then it becomes a crime of other forms of trespass under Article 281.

Is there a need for an express prohibition? Do you need to be there during entry or a sign will suffice?


4D 2007 123
No. Thats what the law says you have a sign of "No Entry," that will be sufficient because that's a
manifestation. The only reason why it is a crime of other forms of trespass under 281 is the putting up of a
fence. The putting up of a fence is a manifestation on the part of the owner of the property that anybody is
prevented from entering.

Now, you connect this with Article 312 because 312 is likewise an entry to a real property. The only
difference, however, in 312 is that if the entry is attended with intent to gain. Sa 312, there is an intent to
gain. When the entry is done with violence, and there is an intent to gain, then the crime is found in Article
312. Usually they call it the crime of occupation of real rights or occupation of real property. It is like
robbery. It is like robbery of real property. However, it does not fall in robbery because robbery is carrying
away of the personal property. You cannot carry away the land. Otherwise, if you dig the land and then
carry away the property, then by the time you finish it, then you will see beautiful women on the other
side. Why? Because on the other side is Brazil, di ba? Ang daming magagandang babae dun! So, you do
not call it robbery, you call it occupation of real rights. 'Yun ang pagka-iba ng 281. If it is merely an entry
without the owner of the property or without the consent of the owner, other forms of trespass.

So, in other words, supposing you enter a property, you are contesting that you are the owner of the
property when, in fact, you are not the owner. Then you started building your house inside that property
because you claim that that is your property. Wala nang anti-squatting. That used to be a crime of P.D.
772, anti-squatting, because what is punished in P.D. 772 was to enter and then build a makeshift. 312 is
when you enter and then claim that that is your own property. That is the meaning of intent to gain, so the
crime will be 312.

But if you just merely enter an enclosed estate period, the crime is Article 281. If you enter and then build
a house, claim that that is your property, then the crime is 312 under crimes against property.

Article 282: Grave Threats

Now, 282, grave threats. Itong grave threat, sometimes they confuse grave threat for robbery with grave
threat, or sometimes grave threat with grave coercion. Some of the students do not know how to
distinguish between grave threat, grave coercion, and robbery because there are two kinds of grave
threat under Article 282.

1) One is a threat constituting a crime, when the threat will constitute a crime and subject to a condition,
which condition may take place in the future, either fulfilled or not. So, it is a threat constituting a crime
and subject to a condition, which condition shall take place in the future and it may be fulfilled or not.

2) And Paragraph (b) is any other form of threat.

Grave threat is where the threat is bodily harm against your property, you person, your honor, in any of
those mentioned in Article 282, that is grave threat. So, pag sinabi lang,"Papatayin kita", that is grave
threat because the threat is serious. Bodily harm. But if you say, I will kiss you, does that constitute a
crime? It may fall under Article 285 which we will discuss later.

So let's take the case of the first part of grave threat. Ang grave threat at saka grave coercion hindi
parehas 'yan. Ang grave coercion is to force somebody to do something against their will, against his will,
whether allowed by law or not. Yun ang grave coercion. Grave coercion is continuous, persistent and
continuous. May ibang purpose ang grave coercion. There is a purpose of grave coercion. In grave
threat, what is punished actually is the threat employed.

So, let's take the case of the first form of grave threat which I will use as an example. Supposing I tell Mr.
Zosa, "Give me your money tomorrow or else I will kill you." So, there is a threat of bodily harm
constituting a crime because "I will kill him" is a crime. And then it is subject to a condition, I will kill him if
he will not give his money tomorrow. So, there is a threat of bodily harm, so that's the first element. It
constitutes a crime because killing is a crime, and then it is subject to a condition that will take place in
the future and the condition is that he will give me money tomorrow or else I will kill him. So, what is that

4D 2007 124
crime? Okay. But supposing, "Mr. Sosa, give me your money now or else I will kill you," so there is also a
threat. "Give me your money" also, the same purpose, is to extract the money from you.

What's the difference between the first one and the second one? The first one is that the threat is subject
to a condition that will take place tomorrow. The second example is that it is immediate. So, "Give me
your money now or else I will kill you." So the only difference is that the giving of money now takes place
right now or else something will happen to you right now. In the first example, give me you money
tomorrow or else I will kill you. So, so it is subject to a condition. But in the same manner, in both cases, it
would appear that the purpose of the offender is to get money from you. "Give me your money or else I
will kill you." "Give me your money tomorrow or else I will kill you." So, almost the same.

But they are not the same for purposes of 282. The first one is a crime of grave threat. The second one is
a crime of robbery. Why? The only difference is the condition that will take place in the future. So, let us
try to analyze why the first example is a grave threat. "Give me your money or else I will kill you
tomorrow." Then the law says, whether that condition is fulfilled or not. So, I threatened him now. If I
threaten him now, "Give me you money tomorrow or else I will kill you." Is it not that I'm already
committing a crime? "Give your money or else I will kill you tomorrow." Is it not that I'm already committing
a crime? Meron na. What is the crime I'm now committing? I'm now committing grave threat because
there is a bodily harm. "Give me you money or else I will kill you tomorrow," so there is already grave
threat because there is threat of a bodily harm and the threat constitutes a crime, that is killing.

So tomorrow, let's say, the time now comes for the fulfillment of the condition. Nagkita kami. Wala akong
kuwarta. "Give me your money." Wala akong kuwarta. Kahit ano, gagawin ko. So, if he does not give me
the money, you are liable for a crime of grave threat because the threat was employed the day before.
So, let's say, "Give me money tomorrow or else I will kill you." Is it not that the day before there is already
a grave threat? So that if it is tomorrow now, whether they have money or not, there is already a
consummated crime of grave threat. There is no need for you to fulfill that condition because the law says
even fulfilled or not.

Now, if the money is there, you give the money, that is still grave threat. That is not a crime of robbery
because the giving of the money is not immediate. So, "Give me your money or else I will kill you," and
then you give now the money. What is the crime? Is that grave threat? No, that will now be a crime of
robbery because the threat that you employed now is the element of robbery with violence or intimidation.
So, now it becomes a crime of robbery.

Now, in the second example of grave threat or the one that is the part of the second Paragraph of 282,
then it is not subject to a condition. You just point a gun, "Papatayin kita," of course, do not pull the
trigger because there will be another crime committed. "Papatayin kita." Walang kondisyon. That is grave
threat.

Article 283: Light Threats

Now, if the threat, however, does not constitute a crime, then it may be Article 283. There is a demand for
money, that is the meaning of light threat, or even 285 under Paragraph (c), any form of threat.

I will give you an example. You are a writer in a publication. "You give the money or else I will expose
your wrongdoings as a government official." So, I'm a journalist. "Give me money or else I will publish
your criminal acts that you are committing as a public official." Is publishing criminal acts a crime? That is
not a crime so it does not constitute one. But there is a threat and the threat is if you do not give money,
then I'll do something, then I will publish it in the newspaper. So, that is not a crime. The act is
accompanied with threat not constituting a felony or a crime, but it also takes place in the future. It will
take place in the future. "If you do not go and give the money tomorrow, then I will publish an article about
your wrongdoings." That is a crime of light threat under 283.

But be careful because under Article I think its 356, kaya may conflict na mga writers. In 356, that may
be punished as a crime of blackmail. That's 356. You look at your 356. When you threaten to publish if

4D 2007 125
that writing will amount to a libelous article, then it may be a crime of blackmailing under 356 if the
purpose is to extract money from the private offended party. Tingnan mo sa 356, parang almost the same
as 283. But 283 is committed when it is likewise subject to a condition. As long as the wrong threatened
to be committed does not amount to a crime or a felony, and then it is subject to a condition that may take
place in the future, that is Article 283.

Now, but if there is no demand for money, let's say, I will publish libelous articles against you. There is no
demand for money but there is a threat. What is the crime committed? Then the crime would be
Paragraph (c) of Article 285. The mere threat is a crime of other light threats under Paragraph (c) under
285. To differentiate it from 283, yung 283 kasi subject to a condition. Yung 285, it is not subject to a
condition. So any other form of threat is punished under Article 285.

Now, in so far as the other threats in 285, yung you arm yourself during a quarrel, as long as it is not in
self-defense in the heat of anger, I think 285, yes, that's Paragraph 2, other forms of threat. Yung 284,
that is a useless provision. Wala 'yang 284 na 'yan.

Article 285: Other Light Threats

There are three other forms of threat in 285. Today, during quarrel, you arm yourself as long as it is not
valid self-defense. Yung Paragraph 3, in the fit of anger, nagmumura ka, lahat-lahat. Light threat 'yan and
any other threats without any condition, in Paragraph (c) that is 285.

Article 286: Grave Coercions

So, let's go to grave coercion. Medyo mabigat ang grave coercion. Bakit mabigat? Sometimes, grave
coercion is actually taking the law into your own hands when there is a legal remedy. 'Yan ang unang
isipin niyo sa grave coercion. One of the forms of grave coercion is taking the law into your own hands
when there is a proper remedy.

Example, somebody is renting your apartment and he does not want to pay. What is your remedy?
Apartment dweller. Youre the owner of the apartment. He is not paying. What are you supposed to do?
'Di ba File a complaint for unlawful detainer? That's your remedy. But supposing, in order to require him to
pay or in order that he can get out from the premises, you cut off the water line, you cut off the electricity.
That's a crime of grave coercion. That is taking to your own hands when there is a proper remedy. Or
somebody is indebted to you, then you force him or you force her to pay. That is, likewise, grave
coercion.

The other form of grave coercion is you force somebody to do something against his will. In order words,
like a woman, the woman does not like you. You forced her to go with you. That's grave coercion. There
is violence, which is different from grave threat. In grave threat, what is punished is the threat. When you
threaten somebody else, then it becomes grave threat or light threat. When it is grave coercion, the threat
may be the element of the coercion. So, if I threaten you and the purpose is to force you to do something
against his will, then it becomes grave coercion because the threat is now utilized. It is now the element
of the grave coercion.

Then, the other one is light coercion. You force somebody else to pay your debt. That is light coercion. Or
you force somebody else to work dahil may utang. Coercion 'yan. Lahat ng pamimilit, coercion 'yan.
Because it is against the law, because you are putting the law into your own hands, but the most
important one is light coercion or the unjust vexation as a form of light coercion.

Ano yung unjust vexation? Unjust vexation is a form of light coercion. Light coercion is causing
annoyance or you are vexing the senses of the offended party short of causing injury. Because once you
cause injury to another, it may no longer be a crime of unjust vexation. Kaya lang diyan sa slander by
deed, may sinasabi kasi ang Supreme Court let's say, slander by deed, I think, is punished in 359 to
explain what is light coercion.


4D 2007 126
Unjust vexation is a form of light coercion. Unjust vexation is merely pang-iinis. Nanilip ka ng babae,
peeping Tom. That is unjust vexation. Kissing a woman without lewd design is also unjust vexation.
Stolen kiss, that is unjust vexation, if the woman does not like it. Or peeping a woman is unjust vexation.
Short of injury, if there is no crime but there is an act committed, and the act is against the will of the
offended party, the safest crime is unjust vexation. 'Wag lang may injury.

Okay, like for example, the one that we studied in Article 132, I think. 'Yung offensive to religious feeling.
Yung nang-iinis, yung procession, nanggulo ka. If you did not harm anybody, there is a crime of unjust
vexation. Ganun din ang unjust vexation. Anything that will vex the senses of the offended party is unjust
vexation.

Now, I am reminded there was slander by deed sa 359. If you slap somebody else in the face in the
presence of other person, that is a crime of slander by deed, 359. Slander by deed. You know, slapping is
actually putting a person to shame. Buti pa sinuntok mo na. 'Pag sinuntok mo, probably injury 'yan, but
kung slap, slapping in our Filipino tradition, ano yan, pambabastos. So if somebody saw you slapping
somebody else, that is slander by deed. But if nobody saw the slapping, that cannot be slander by deed.
Lets say, there are only two persons inside the room, one slapped the other. That cannot be slander by
deed because you cannot besmirch the honor or reputation of somebody else if there are no witnesses.
Pero sa libel or defamation, meron parating witness 'yan. Kung walang witness, ini-slap ko, what is the
crime committed?

Now, if the person is injured and it requires treatment even only for a short time in other words, you go
to the clinic and then ginamot ka, ang crime diyan ill treatment because there is an injury, but the crime
will be slight physical injury under 266 that may become a crime of ill treatment. But if there is no injury
sustained, that may become a crime of unjust vexation because there is no injury kung walang nakakita.
So, that's the meaning of unjust vexation.

But supposing a woman is being followed by a man. The woman does not like the suitor. So, she goes to
school, followed by the man. The woman is not being touched. She goes to the church, followed by the
man. She goes to the house, followed by the man. Lahat ng pinupuntahan, sinusundan. Stalker ba.
Ngunit ayaw ng babae. Pangit, eh. Wala tayong magagawa. What is the crime committed? Unjust
vexation ba 'yan?

Now, there is a specific crime under Republic Act 9262. Under yung VAWC, yung violence against
women and children. That may no longer be a crime of unjust vexation. That is a crime of stalking. That is
now a crime of stalking. No more unjust vexation. Yung naninilip, yan. Peeping Tom is actually unjust
vexation. Now, if the woman does not complain or likes it, then you have to go nearer. Gawin mo, while di
nagrereklamo, you go nearer.

Then, the other crimes of unjust vexation, the non-payment of debt, they'll be forcing to pay, that's
coercion likewise. When you force somebody to work in order to pay the debt, other forms of coercion
'yan.

Now, I told you the distinction between grave coercion and kidnapping and serious illegal detention.
When there is no yet lock-up, grave coercion. If there is lock-up, it could now be a serious illegal
detention.

I was reading a book. It was saying that there is a crime of frustrated kidnapping and serious illegal
detention. Mahirap yung frustrated sa kidnapping and serious illegal detention because of the doctrine
laid down in the People versus Arnulfo Astorga, that when there is no yet lock-up, it becomes a crime of
grave coercion. And the case that is cited in that book is a case where it was decided when I was not yet
born. So, Philippine Reports...hindi na applicable 'yung case na' yun.

Mahirap because, let's say, if the man is taken against his will, but there is no yet lock-up, how do you
know if that is frustrated kidnapping? How will you know that the intention is to deprive his liberty? You
can only prove deprivation of liberty when there is lock-up. But if somebody has been taken against his

4D 2007 127
will, how can you conclude that the purpose is to deprive his liberty? But there is a crime committed. The
Supreme Court said that it's a grave coercion because you are forcing somebody to go with you against
his will. That is grave coercion. People versus Arnulfo Astorga.

Articles 290, 291, 292: Discovery and Revelation of Secrets
So, 200the other discovery of secrets, merong tatlo. The discovery of secrets are discovered through a
correspondence or the crimes involving revelation of trade secrets. They all are committed in so far as
revelation of industrial secrets. Tatatlo lang naman yan eh. Tatlo lang yan. Discovery of secrets through
opening of correspondence, revelation of secrets. You just read 289 , 290, 291 and 292.

Let's go to the more important ones. That's why I'm in a hurry so that we can finish robbery. 293 to Article
319. 320 up to 326 have been amended by the law on arson.

Crimes Against Property

So, let's go to robbery, theft, estafa, qualified theft. Yan ang importante. Now, like in crimes against
persons, like what we did in crimes against persons, if you want to know what are the crimes committed in
crimes against persons, we first determine if the victim dies. So, if the victim dies, then you can choose
what is the crime committed as long as you know the essential elements.

Likewise, in crimes against property. Crimes against property are those involving unlawful taking of a
property, involving receiving of property through deceit or fraud, or even destruction of a property. So, it
may be unlawful taking, receiving of property through deceit, or even destruction of a property. So, they
under this chapter, Crimes Against Property.

Now, when you speak of unlawful taking, then we are talking of those crimes involving asportation that
means unlawful taking. So, when I use the word "asportation," then that is the generic term for unlawful
taking. So, what are we going to do in order to determine what are the crimes committed?

Then, you have first to determine, one, the subject matter of the asportation. You look for the subject
matter of asportation, because by knowing the subject matter, then probably you can already answer the
question. As to the subject matter:

A) If the subject matter is a member of the bovine family. You know what is bovine family? Cattle. Bovine.
'Yung ganun ang paa. 'Yung kabayo, cattle. Then the crime is violation of P.D. 533. That is included in
your bar exams. P.D. 533, otherwise known as Cattle Rustling. That is the meaning of cattle rustling.

Now, if the subject matter is a motor vehicle. Then, there will beanyway, I will discuss all of these.
Parang ano lang eh, sinasabi ko lang so that when we discuss and then you review, then it will be easier
for you to remember.

B) If the subject matter is a motor vehicle, then the crime will either be qualified theft of a motor vehicle
under Article 310 or carnapping under Republic Act 6539. Alam nila Mr. Nolasco yan. So, it will either be
carnapping or qualified theft of a motor vehicle.

C) Then paragraph C, if the subject matter is fish taken from a fishpond, the crime is qualified theft under
Article 310. If it is not, then it may be simple theft.

D) If the subject matter is coconut taken from a coconut plantation, qualified theft. If it is not, simple theft.

E) The other one is mail matters. If the subject matter is mail matters, that is qualified theft under Article
310.

Then, you go to the next category, place where the crime is committed. Place as to the place where it is
committed. If it is committed along a highway, if the crime of asportation is committed along the highway,

4D 2007 128
then the crime may be a violation of P.D. 532, otherwise known as the "highway robbery." If it is not, it
may be simple robbery under 293.

Now, if the robbery, if the asportation takes place on the occasion of natural calamity. Natural calamity,
let's say, flood, typhoon, the crime is qualified theft under Article 310.

Now, if the asportation takes place in the place where there is a vehicular accident, and the victims are
the passengers, the crime is likewise qualified theft under Article 310.

If there is a fiduciary relationship between the offender and the offended parties, the crime is qualified
theft under Article 310. Eh, di tapos na.

We'll go first to robbery. What are the crimes of robbery? So, that we'll understand. Robbery. I will tell you
what are the laws that are applicable. Robbery - you can include one category as to the manner of
committing the crime of asportation.

One, if the unlawful taking is attended by violence or force upon things, the crime is robbery under Article
293. If the unlawful taking is not attended by violence or force upon things, the crime is simple theft under
Article 208 of the Revised Penal Code, under 208.

So, let's go to another topic. Let's go to robbery. What are the two kinds of robbery?
There are two kinds of robbery:

1) Robbery with violence, and the applicable articles are from Articles 294 to 298.
2) Robbery with force upon things, and the applicable provisions are found in Article 299 and Article 302.

So, I will explain. What do you mean by robbery with violence? So, there are two kinds of robbery. One is
robbery with violence. The other one is robbery with force upon things. When the robbery is directed
against a person, you want to deprive the possession or the property of another person, and then you use
violence, that is robbery. That is the meaning of robbery with violence. "Give me your money or else I will
kill you!" That is robbery with violence.

But when the subject matter of the asportation pertains to inhabited or uninhabited houses, therefore, you
enter the house and then rob the house. Then, the crime is robbery with force upon things.

But the subject matter of robbery with force upon things, dalawa lang:
1) Inhabited, which is Article 299.
2) The other one is uninhabited, which is Article 302.

Now, when we speak of robbery with force upon things, they only refer to those shelters which may
include either houses or buildings, whether public or private, or even ships. Barko, kasama 'yan. So,
outside of those mentioned by law, the crime cannot be robbery with force upon things.

Example, kotse mo, nandyan sa parking. Somebody broke the window in order to enter the car and then
valuables were taken from inside the car. The entry was done through the breaking of a door or a
window, the crime cannot be robbery even if there is force. Why? Because the car is not an uninhabited
or inhabited place, that's what I mean. So, only the uninhabited or inhabited places may be the subject
matter of robbery with force upon things.

Now, when you talk of theft, then the taking is without the consent of the owner, but there is no force,
there is no violence, there is no intimidation or even threat. If you are just sitting there, then somebody
took your book without your knowledge, 'yan ang simple theft, because the asportation is not attended by
violence or intimidation.

Robbery with Violence


4D 2007 129
So, lets now go to robbery with violence. Robbery with violence are those found in Article 294-298. So,
you have 294, Paragraphs 1-5, 'yan ang pinakamahirap. Itinanong na sa bar ito, nag-away away na kami
sa UP.

Number one when homicide, rape, intentional mutilation, or arson is committed on the occasion of
robbery, then the penalty shall be reclusion perpetua to death. This is the one that I was telling you about
the special complex crime because the law recognizes the commission of any of those four crimes on the
occasion of robbery. But the word there "on the occasion" should now include by reason thereof. Kasi
nakalagay, when on the occasion of robbery, homicide, rape, intentional mutilation, or arson is committed,
that meaning of "on the occasion" should now include by reason thereof.

So, if the killing is because of robbery, then it's still robbery with homicide. Thats why even if the killing
takes place after robbery, it may still be a crime of robbery with homicide. The law does not require that
the killing should take place before, during, or after as long as the robbery or as long as the killing is by
reason of the robbery, that is still a crime of robbery with homicide. Now, the killing there, under the law,
does not only include intentional killing. It may also include killing through culpa or reckless imprudence.

So example, there are three robbers who entered the bank. Now, if the robbers killed one of the guards,
walang problema yan because the killing is by reason of the robbery. Now, three robbers entered the
bank, the guards fired their guns, one robber was killed, that is still robbery with homicide. Because the
law does not require that the victim should be the robber or the offended party. Supposing three robbers
were inside the bank, and then later on they ran. One drove the vehicle. Then while driving the vehicle, a
bystander was hit by the vehicle. The bystander died. And therefore, he was not killed on the occasion of
the robbery. He was killed rather because he was bumped by the car. That is still robbery with homicide.
As long as the killing occurs by reason of robbery that's why the law is not limited to occasion thereof, it
may include by reason thereof.

So, that was the question in the bar exams you asked two Sundays ago. Sabi nila, hiwalay daw 'yun.
'Yung ibang nagtuturo sa ibang school, sabi, "hindi, separate crimes of robbery and homicide 'yan
because the homicide has nothing to do with the robbery." Hindi lang sinasabi ng law na "on the occasion
of robbery." It now includes by reason thereof. Basta may mamatay, kahit na anong klase, basta tungkol
sa robbery, robbery with homicide 'yan. Walang pinipili 'yan.

Now, if however, the killing took place ahead of the robbery, so the intention of the offender is to kill, like
what happened to a certain colonel. He was ambushed then he was killed. The intention was to kill, and
then later on they took his Rolex watch when he was already dead. Ano ang crime? Dalawang crimes
'yun. Crime is murder for the killing. The taking of the watch is theft. Because when the watch was taken,
there is no more violence employed because the victim is already dead. The violence is employed in
order to force the private offended party from giving his personal property. But if the victim is already
dead, you cannot commit a crime of robbery because the victim is already dead. So there will be two
crimes committed, murder and theft, not robbery.

Now, the other thing here is that - of course, I told you last time I think in Article 48 that if two or more
persons died on the occasion of robbery, then you denominate the crime as robbery with homicide. There
is no such thing as robbery with multiple homicide or double homicide. The excess killings will be included
under the generic term "homicide." So, regardless of persons who died, we denominate the crime as
robbery with homicide because that is a special complex crime. So, you do not anymore create the
additional homicides as analogous to aggravating circumstances of cruelty. Wala na yan. The old doctrine
has been overtaken by the doctrines later on in People vs. Rutan and People vs. Regala.

Also, in a crime of robbery with rape, if the victim is raped three times, there is only one crime of robbery
with rape. The other two crimes, never mind. It can no longer be treated as analogous circumstances,
analogous to ignominy. Wala na 'yon.

Now, if on the occasion of robbery, some died, some were killed, some survived, therefore, physical
injuries, whats the crime committed? Merely robbery with homicide. Those who survived or those who

4D 2007 130
suffered serious physical injuries are included likewise in the generic term "homicide." Walang crime na
robbery with homicide and physical injuries, no crime. Injuries there are included in the generic term
"homicide."

Now, if the victim does not die on the occasion of robbery, what is the crime committed? No crime of
robbery with attempted or frustrated homicide. No crime of attempted or frustrated murder. If the victim
does not die, then denominate the crime as robbery with serious physical injuries if the injuries are
serious. But if the injuries are only less serious, or slight physical injuries, then denominate the crime as
simple robbery. Walang robbery with slight physical injuries. Walang robbery with less serious physical
injuries. Less or slight physical injuries are covered by Paragraph 5 of Article 294. That is simple robbery.

Now, if on the occasion of robbery, somebody is killed and likewise somebody was raped, how will you
denominate the crime? Is it robbery with homicide? Then denominate the crime as robbery with homicide
and rape because rape is not necessarily included in the crime of homicide. So, if the victim is raped and
then later on killed, then robbery with homicide and rape. Why? Because homicide is killing. Rape is
giving occasion for birth. So, it cannot be included under the term "homicide." Rape is the other way
around.

Okay, then intentional mutilation, of course you know what is intentional mutilation. If on the occasion of
robbery, he is intentionally mutilated or arson, so only one crime. So, robbery with homicide, if all of these
crimes take place on the occasion of robbery, that is only one crime, a single indivisible crime.

Now, the one that I was telling you in serous physical injuries, dun the Paragraph 2, yung robbery with
serious physical injuries. When the victim became insane, imbecile, that is Paragraph 1 of Article 263,
'yung Paragraph 2. 'Yung paragraph 1 saka Paragraph 2 ng Article 294 will now become important when
the robbery is committed by four armed men. 'Di ba 'yung four armed men under Paragraph 6 of Article
14 - when four armed men commit a crime, then there are four or more armed men, malefactors, then
they belong to a band.

Now, under 295 and 296, the law recognizes that when the crime is committed by a band, then the
maximum penalty shall be imposed. 'Yun ang nakalagay. It's the same as band as an aggravating
circumstance because in aggravating circumstance, we increase the penalty but in no case shall exceed
the maximum. Alam natin 'yun. But supposing you are asked a question, what is the proper denomination
of the crime? Dun ka magkakaproblema.

So, four armed men killed somebody else on the occasion of robbery, whats the crime committed? There
is no problem. That is robbery with homicide but what about those four armed men who killed the victim?
How will you treat now the band? Then, the jurisprudence says that when the robbery is 294 Paragraph 1,
then denominate the crime as robbery with homicide. The band is now considered as an ordinary
aggravating circumstance.

Now, when the robbery with serious physical injuries is what is found in Paragraph 2 of Article 294, then
denominate the crime as robbery with serious physical injuries aggravated by a band. So you consider
the band as an aggravating circumstance.

Now, when the robbery falls under Paragraphs 3 and 4, other forms of serious physical injuries where the
medical assistance required is more than 90 days or more than 30 days of incapacity, when any part of
the body that is cut off, a finger, if there is a permanent scar, serious physical injuries lahat' yon. But the
victim does not become blind, I mean, does not imbecile, does not become insane, then these physical
injuries will fall under Paragraph 2, 3, 4 and 5 of Article 263 on serious physical injuries.

So therefore, if on the occasion of robbery, there were four armed men who committed the crime of
robbery, and then the victim fought back, and then they boxed the victim then they got his money. But he
stayed in the hospital for more than 30 days. He did not become totally blind. He did not become insane
or imbecile, but he suffered serious physical injuries. Apat ngayon 'yung armed men. So, how will you
classify the crime? That will now become a crime of robbery in band. Do not call it a simple robbery

4D 2007 131
aggravated by a band. Why? Because the serious physical injuries fall under Paragraph 2, 3, 4 and 5 of
Article 263.

So, if the robbery therefore is in Paragraph 3, 4 and 5 of 294 committed by a band, then denominate the
crime as robbery in band. When the robbery, however, is Paragraph 1 or Paragraph 2 of Article 294,
committed by four armed men, then denominate the crime as robbery with violence attended by an
aggravating circumstance of a band or robbery with serious physical injuries under Paragraph 2 of 294,
with the attendance of an aggravating circumstance of a band. Anong ibig sabihin 'nun? Kaya lang,
walang robbery with violence in band na ngayon. Robbery with homicide by a band na ngayon. 'Yung 3,
4, 5 lang, robbery with band. 'Yung 3,4,5 ng 294.

Now, if the victim dies, as I said, thats robbery with homicide. But supposing the victim dies, and then the
robbery is not consummated because the victim woke up, what is the crime committed? That is still a
special complex crime, but you denominate the crime as attempted or frustrated robbery with homicide.
Yung robbery, pwedeng mag-attempted, frustrated, tapos homicide. Kung consummated robbery, 'yung
victim hindi namatay, hindi mo pwedeng sabihin robbery with attempted homicide, frustrated homicide.
Saka walang crime na robbery with murder because homicide is used in it's generic sense.

Although in the case of People vs. Escote, sabi ni Justice Callejo, "In the crime of robbery with homicide,
treachery may be appreciated as long as the treachery attended the killing." You know, the general rule is
that there is no treachery in crimes against property because treachery can only be appreciated in crimes
against persons. Treachery, evident premeditation, abuse of superior strength can only be appreciated in
crimes against person. Therefore, if it is a crime against property, there is no treachery because robbery
is a crime against property.

But in one of the cases in People vs. Escote, sabi ng Supreme Court, "If the victim was killed
treacherously" so let say in a robbery, natutulog 'yung victim. Natutulog 'yung victim tapos nung
tinutukan, nagising. Pag gising niya, bang! Treacherous ang pag patay. So, he was sleeping when he
was killed. His personal belongings were taken. Ano ang crime? That is robbery with homicide. But sabi
ng Supreme Court, "Because the killing was attended with treachery, then the crime is robbery with
homicide, and then the killing is aggravated by treachery." It is not the robbery that is aggravated by
treachery because treachery is always inherent in a crime of robbery. Inherent crime 'yan. Pag
magnanakaw ka anong sasabihin mo? "Hoy, bukas nanakawan kita." You will not say that.

Also in robbery with homicide, cruelty can also be appreciated as an aggravating circumstance. If the
killing is attended with cruelty - habang ninanakawan, itinali s'ya tapos ipinakagat mo muna sa langgam,
tapos kiniliti, tapos unti-unting pinitik-pitik, tik, tik, tik, tikat ginanun-ganun then isang saksak lang. You
can kill him with only one fatal blow tapos pinahirapan mo 'yan. The crime is robbery with homicide, but
there is cruelty committed against the victim, 'yun robbery with homicide aggravated by cruelty in so far as
the killing is concerned. But you are not supposed to appreciate cruelty in crimes against property
because cruelty is only appreciated in crimes involving personal violence.

Article 299: Robbery in an Inhabited House or Public Building or Edifice Devoted to Worship

Then we go to 299. 'Yung 299 you read that together with Article 302. The 299 is robbery in inhabited
places. So, we are now moving to robbery with force upon things. The 302 is robbery in uninhabited
place. Now, the commission of the crime of robbery with force upon things under 299 is divided into two.
Two groups yan, eh. The manner of committing a crime of robbery with force upon things.

1) The first one madali lang naman intindihin yan. Bakit kamo? Eh kasi when we speak of force upon
things, then the subject matter is a house, or public or a private building. But it becomes a robbery with
force upon things because there is an unlawful entry. Unlawful entry. In other words, you enter the
premises. So, in other words, when you enter the premises, as long as there is an unlawful entry
regardless of the manner of the unlawful taking, that is always robbery.

Example: There are how many ways I think there are

4D 2007 132

a) When you enter by breaking a wall, or a roof, or a window. You enter. Kumuha ka ng nasa mesa. Let
say, you broke open the window, even if the valuable was on the top of the table, robbery 'yan because
what makes it a crime of robbery with force upon things is the unlawful entry. 'Yun ang first mode of
committing a crime. So, you broke open a window kahit na hindi ka ano ang kukunin mo dun, robbery
with force upon things yan because what makes it a robbery with force upon things under the first group
or manners of committing the crime is the entry. The entry is unlawful.

b) Or you enter a window there is no force, but you are entering an opening which is not intended for
entry or exit. Because if you enter an opening not intended for entry or exit, that is unlawful entry. 'Yung
window para saan ba ang window? Di ba para sa hangin. Hindi naman daanan ng tao 'yan eh. So, kung
hindi daanan ng tao 'yan, tapos pumasok ka. Kinuha mo yung nakalagay sa table yung kwarta, robbery
pa rin 'yun because the entry is unlawful.

c) Or by using any fictitious name or pretending the exercise of public authority. Kumatok ka sabi, "Hoy,
pulis ako." Naniwala. Pinapasok mo, unlawful entry 'yun. Regardless of the taking that takes place the
manner of taking the place like inside the house that is robbery with force upon things. 'Yun ang the
manner of committing the crime.

d) And the other is the use of a picklock, false key. Nabuksan mo then you enter. You take something
inside the house even you did not break open anything that is also robbery with force upon things.

2) Now the second mode there is an entry. So, what the law provides in 299 is the entry now is lawful.
It does not fall under unlawful entry. And what is it?

You enter an opening intended for entry or exit. Nakabukas 'yung pintuan. Di ba pasukan ng tao 'yan?
Pumasok ka sa loob ng pintuan. Therefore, there is no unlawful entry because it is an opening intended
for entry or exit. Somebody did not prohibit you from entering. Nakapasok ka eh. Nakabukas eh. Now, the
valuable at the top of the table, you took that valuable on the top of the table. Is that robbery with force
upon things? That cannot be robbery with force upon things. Why? Because the entry is lawful. There is
no unlawful entry. There is no breaking. But it will still become robbery with force upon things if after
entering when the entry is not unlawful you break open the receptacle, or cabinets, so the watch is inside
the cabinet. Pumasok ka. Binasag mo 'yung cabinet, kinuha mo 'yung valuables that is still robbery with
force upon things even if the entry is not unlawful. Or pamasok ka, the entry is not unlawful and then you
brought out the cabinet. Nilabas mo sa labas ng bahay. Pag labas mo sa labas ng bahay break open mo
'yung cabinet. It is still robbery with force upon things.

So, dalawang group yan sa 299. When the entry is unlawful, that is always robbery with force upon things
regardless of the manner of taking the valuables. But when you enter the inhabited house and the entry is
not unlawful. In other words, it does not fall in any of the enumeration in the first part in 299, but the
manner of taking the property is you broke open the receptacle or a cabinet in order to get the valuables,
robbery with force upon things. Or without opening it, you broke it outside and then break it open outside,
that is still robbery with force upon things.

Now, you go to 302 robbery in uninhabited places, halos magkaparehas 'yan sa 299 except for one. Ang
diperensya lang ng 299 inhabited at saka uninhibited, walang simulation of public authority. Kasi 'yung
299 sumagot pa kasi may tao, eh. "Hoy, pulis ako." Kumatok ka, syempre may tao. Binuksan mo ngayon,
299 'yun because there are persons inside, robbery in inhabited place.

Ngayon, pag uninhabited 'yan, you cannot commit that manner of committing a crime. Hindi pwedeng
kumatok at buksan. Walang tao, eh. Kumatok ka, uninhabited walang tao. So, you cannot commit the
crime of robbery with force upon things through simulation of public authority because they are no
persons inside. 'Yun lang ang diperensya ng 302 at saka 299. All the other acts committed that will
constitute robbery with force upon things under 299, pareho lang sa Article 302 except that.


4D 2007 133
Pag kotse, pumasok ka sa loob ng kotse walang roberry 'yan, theft lang' yan. Pumasok ka sa inhabited or
uninhabited even if you used force, there is no robbery. Robbery with force upon things only applies to
inhabited or uninhabited places, public or private buildings. Ngunit kung squatters area, robbery pa rin
'yun because the law does not say, "The house will be big or small," basta sinabi natin, inhabited or
uninhabited."

Anyway, I've told you already. Then what we will do next Wednesday, I will continue then you read what
I've told you. 'Yung robbery, 'yung qualified theft. At least when you come here, alam ko magagaling
naman kayo eh. So, we'll just review it. Madali lang ang criminal law eh. Sabi niya, "The questions are in
the book of ano?"

You know, we had a quarrel about the first question in the bar, "What are the penalties that can be served
simultaneously." The answer in the book of Reyes is only his opinion. The law does not say so. The law
does not enumerate. So, we wanted to protect the examinees. Kasi pag sinabi mo, "What are the
penalties that can be served simultaneously?" Marami 'yun. You try to enumerate, but that will consume
two pages of your booklet. So, sabi ko, "Dapat 'yan tama na kung inanseran niya triple penalty rule
because the answer is found in Article 70. So, I said, "Okay." So, they allowed alternative answers. Eh,
opinion niya lang 'yun eh.

But, do you know what I was telling you sa 247? Tinanong 'yun eh. I told them yung penalty sa
exceptional circumstances, 'yung destierro be careful ika ko. The penalty of destierro is not a penalty
under 247. That is for his protection. Marami yata ang nakakuka.

'Yung nagdrive ng vehicle, the one I was telling you that in a robbery with homicide whether it is through
negligence lahat-lahat, that is part of robbery with homicide because it does not only cover on the
occasion thereof, by reason thereof. Alam ng mga estudyante rito. Dun lang sa served simultaneously
because that is crazy yung question na 'yun eh. Sabi ko nalang, "What are the penalties that can be
served simultaneously?" Penalty of imprisonment. Fine, bahala ka na ng idagdag mo doon kung ano man
ang nandun. There's perpetual disqualifications, ilagay mo nalang lahat. Pahabaan lang 'yan eh. Lahat ng
penalties ilagay mo kung gusto mo, ganun lang 'yun eh. Syempre, you exaggerate. Then what are the
acts that are punished as inciting to sedition under 139 and 142? Scandalous libel, seditious work,
speeches, madami 'yun eh. And they were only asking for three.

For instance, sir, is it only enumeration?

Oo. Enumeration lang 'yun eh.

Three categories lang po ba 'yun?

Three categories, oo. And then the other one is sa remedial nun medyo ano eh, except for the one
question "What is global injunction?" It should not have been asked. Global injunction was actually there
is an old case I think its Maravilla. But it's actually enforcement of a foreign judgment. In injunction issued
by a foreign court in order to be effective here, then you have to follow what are the requirements under
the rules. A varied judgment, you go to court. Ganun lang. Ganun din sabi namin, "Any answer will do." It
is not part of remedial law. More on international law kasi intellectual property yan eh, Republic Act 8293.
But other questions sa remedial law are very easy.

Revised Penal Code: Book Two: Articles 303-315 with Carnapping

I think I jumped to 299 and then to Article 302. I was explaining about robbery with force upon things. The
only difference, as I said, that 302 cannot be committed by simulation of public authority.

Article 298 Execution of deeds by means of violence or intimidation.


4D 2007 134
We go back to Article 298 because there is a counterpart under 298, when one is forced or compelled
with the use of violence or intimidation into signing a document with intent to defraud, that's a crime of
robbery under Article 298. So, you are in front of somebody who signed a document, 'yun pala nililipat mo
na yung property sa pangalan mo with the use of violence or intimidation, that's a crime under Article 298.
He committed a crime of robbery, this is compelled, there is compulsion, and there is violence or
intimidation.

Article 315 Swindling (estafa).

Now, you go to Article 315, under Paragraph 3 Subparagraph A, you will find there also a crime of estafa
when one signs a document through fraudulent act attended by deceit. You go to 315, 'di ba they are
almost the same? You look at 298, you compel somebody to sign a document attended with violence or
intimidation that is a crime of robbery. You go to Article 315, which is a crime of estafa, under Paragraph
3, any other fraudulent act as follows:

Number 1: When a person signs a document through fraudulent act and it is attended with deceit. So, in
other words, in both articles, they refer to the signing of the document, but when one is compelled to sign
a document with violence or intimidation, that is a crime of robbery under Article 298. But if the signing of
the document is attended by deceit, then the crime is under Article 315 that is a crime of estafa.

You just read Article 301, 302, 303, 334, and 335, you just read them. They pertain to what are inhabited
and uninhabited places.

Article 306 Who are brigands; Penalty.

Let's go to Article 306, which is more important. Who are brigands? Now, under Article 306, if there are
more than three armed men, formed for the purpose of committing a crime of robbery in the highway or
for the purpose of extorting ransom, and then the crime then there is already a consummated crime under
Article 306. The crime is brigandage under Article 306.

So, the mere formation of at least four armed men for the purpose of extorting ransom or for the purpose
of committing highway robbery, then that becomes a consummated crime. If, however, the four armed
men actually committed highway robbery, then they will now be liable for a crime of highway robbery, no
longer liable under Article 306. What is punished in 306 is that before the highway robbery, there are four
armed men formed for the purpose of committing any of those crimes mentioned in Article 306. That is
already a consummated crime under Article 306.

But, if they actually committed a crime of kidnapping for ransom, then they will be liable for kidnapping for
ransom. Probably the four armed men now will be considered as a band as an ordinary aggravating
circumstance for highway robbery committed by a band as an aggravating circumstance. But if they do
not actually commit the crime of robbery in a highway or for the purpose of kidnapping in order to extort
ransom, they are liable under Article 306.

The problem, however, is that when there are only three armed men for the purpose of committing a
crime of highway robbery, and then they do not fall under Article 306 because under Article 306 there
must be more than three armed men. So, if there are three armed men for the purpose of committing a
crime of highway robbery or for the purpose of committing a crime of kidnapping with ransom or for the
purpose of extorting ransom, will they be liable under Article 306? No, they cannot be liable because
there must be at least four armed men. Then they will be liable under illegal assembly. They will be liable
under 146, I think.

Illegal assembly. Why? Because under illegal assembly, when there are armed men for the purpose of
committing a violation of a penal law, then they are considered as violating Article 146 that will be illegal
assembly. Because there are armed men for the purpose of committing any act punishable under our
penal statutes, then it becomes a crime under illegal assembly 146. But if there are four armed men for

4D 2007 135
the purpose of committing a crime of highway robbery, then the law that is violated is Article 306, because
it is specified kung ano ang purpose niyan. The law specifically cites the purpose of the crime.

Article 307 Aiding and abetting a band of brigands

So 307, I think, you will find there the definition of inhabited or habited. And then picklocks or false keys
Never mind. Picklocks, those or false keys, for that matter. There are three kinds of false keys. Just
read them.

Simple robbery versus highway robbery

Let's go to the crime of theft under Article 308. Before we go to Article 308, let's go back to the crime of
simple robbery under 293 and highway robbery. If a crime of asportation is committed along the highway,
four armed men committing a crime of highway robbery or commit a crime of asportation along a highway,
is that a crime of highway robbery, because the crime of asportation is committed along the highway?
Just because it is committed along the highway it becomes a crime of highway robbery under PD 532.

Highway robbery is now defined in Presidential Decree 532 where the unlawful taking takes place along
the highway, then it is highway robbery. That's what you find in the PD 532, but the Supreme Court said,
in the case of People versus Puno et al, the two brothers, Puno, no relation to Mr. Puno in 4-D. Kaya
hindi mo makalimutan, People versus Isabelito Puno, et al. Both of them are Punos. The Supreme Court
made a distinction between simple robbery under 293 and highway robbery under PD 132. Of course, if
the crime is committed along the highway, then it may be a crime of highway robbery, but that is not the
only factor that you will have to consider if that is a highway robbery.

There are three essential requirements of highway robbery.

1. The asportation should take place along the highway.
2. That the victim is not a predetermined victim.
3. The asportation and the act of robbery should not be an isolated one. There must be acts of robbery
committed indiscriminately.

So, I will give you an example how the Supreme Court explained the alleged ruling. What happened to
that case of Puno is that, she was robbed by their own driver and the boy. The driver is Mr. Puno, he had
also a brother working for the old woman. So they boarded the vehicle, the two brothers were driving the
vehicle along North Diversion. One of the drivers told the employer, "Ma'am, sorry na lang, my son is sick.
He is very sick, we need money and then we need money to buy medicine. So, sorry na lang. Do you
have money? We will not release you if you do not give us money because my son is very sick."

Then, they went to a bank and then withdrew money. After withdrawing money, she gave to the brothers
Puno and then they set free the old woman. So, they were charged with kidnapping for ransom from the
ground that there was deprivation of liberty and that the purpose of the deprivation of liberty was to exact
ransom from the employer. But when the judgment came out in the RTC through Judge Salazar, he
convicted the accused for highway robbery, because according to him, their purpose was not to deprive
liberty, but rather to take the money of the old woman because the statements were, "May sakit ang anak
ko. Kailangan niya ng medicine, kailanagan namin ng kwarta. Magwithdraw ka sa bangko, bigyan mo
kami ng kwarta. Kung di mo kami bigyan ng kwarta, hindi ka namin ire-release." So the purpose,
therefore, is not deprivation of liberty but in order to get money.

So, she said that is highway robbery because the crime was committed along a highway. Then the
Supreme Court said, "No, that is not highway robbery. You are correct. There is no kidnapping, because
the intention is not to deprive the liberty, but that is not highway robbery," the Supreme Court said. That is
a crime of simple robbery under Article 293. Why?

1. It is committed along the highway. So, there is element of asportation committed along the highway.

4D 2007 136
2. The victim was not a predetermined victim. In this particular case, the victim is predetermined
because they choose their victim who is their employer.
3. There must be indiscriminate acts of robbery, not only an isolated one.

Therefore, that is simple robbery.

So, what they said in highway robbery is that, highway robbery is like bandoleros. Yung mga
nagkakabayo sa Paso de Lima. Yun yung mga Mexican film when there is a train, they would run after
the train in their horses. Ganun ang highway robbery, they are like bandoleros. When they post
themselves along the highway and then anybody who passes there, any person who passes becomes a
victim of the robbers. So, they do not choose their victims. The act of robbery must not be an isolated
one. There must be acts of robbery committed indiscriminately. So, lahat ng dumadaan dun,
ninanakawan. That is highway robbery. So, if it's only one act of robbery, that's not highway robbery, that
is only simple robbery under Article 293. So, those are the basic distinctions between highway robbers
and simple robbers under Article 293.

The problem is, supposing it is a crime of robbery committed inside a bus. So, there are 10 passengers,
there are three robbers. All the passengers are robbed by the four robbers. So there are ten victims.
Question: Is that highway robbery or simple robbery because this time there are now ten victims?

Ang Supreme Court minsan, iba-iba. In one of the cases where the victims were all robbed somewhere in
Caloocan, sabi ni Justice Reyes, I think she was the one who gave the decision, that is highway robbery
because there were ten victims in one jeepney where one of the passengers died. A policeman died. In
other cases, that is simple robbery, applying the principle of continuado delito. If there are 10 victims on a
single occasion of the crime of robbery, regardless of the number of victims, as long as the robbery is
committed on one occasion, then the offenders are motivated with one intention and, therefore, that is
only one crime of robbery. It cannot be indiscriminate robbery just because there are ten victims under
Article 48, 'yung continuado delito. That should be only one crime of robbery. But if after robbing one
vehicle and then another vehicle is robbed by the same persons, 'yun ang highway robbery, where there
will already be two acts of robberies committed. But if it's only one act of robbery regardless of the
number, as long as the act of robbery is committed inside the jeep or a bus, that is only one act of robbery
or one crime of robbery.

Article 308. Who are liable for theft.

Then let's now go to the crime of theft. Theft, of course when the asportation or unlawful taking is not
attended by violence or force or intimidation, then it becomes a crime of simple theft under Article 308.
Before we go to Article 308, I'm reminded of one of the questions in the bar exams two years ago. Di ba
yung robbery with force upon things is committed when there is an unlawful entry. So, there is an unlawful
entry. Even if there is no unlawful entry, if later on a cabinet is broken inside or a receptacle is brought out
from the cabinet and then broken, then that is still robbery with force upon things. But supposing, the
robbers entered unlawfully and their intention is to rob the house and, therefore, there is robbery with
force upon things. But supposing while inside the house, they killed one of the owners of the house, he
was killed on the occasion of robbery, so how will you classify that crime?

It is robbery with force upon things from the very beginning because there is an unlawful entry. But on the
occasion of robbery, somebody is killed, so how will you classify that crime? Then the crime becomes a
crime of robbery with violence because on the occasion of robbery, somebody is killed. So, it now
becomes a crime of robbery with homicide because somebody is killed on the occasion of robbery. Then
the house will now be appreciated as an aggravating circumstance in dwelling. So that's a decided case
in involving a director before in the Department of Education who usually announces no classes in the
morning as early as 4 o'clock in the morning. Ano'ng pangalan nun? Dr. Nilo Rosas. He almost died
because of that case.

Of course, you know already that there is no more frustrated theft. Did I tell you that? There is no more
frustrated theft. Valenzuela versus People June 21, 2007. That might be asked in your bar exams next

4D 2007 137
year. Tanggalin yung ulo ko kung di itatanong yun. You know why that question will be asked in the bar
exams? The chairman of the bar exams next year is Justice Tinga, the one who wrote the decision in
Valenzuela versus People is Justice Tinga. Impossible kung di niya itatanong 'yan because the old
doctrines has been overturned by his doctrine.

Before, there is such a crime as frustrated theft, ngayon, wala na. Why? Because according to him, and
probably tama rin, because when you consider a crime of theft or robbery consummated, under the old
doctrine, there are two things that you will have to determine:

1. One, the offender is in full possession of the thing stolen?
2. And the other one, can he really dispose of the things stolen?

So, if he is already in actual possession of the things stolen and he can really dispose of the property
stolen in any manner that he would like to, then that is a consummated crime of theft or robbery. The new
doctrine now is that, why do you have to add another element of a consummated crime of robbery?
Robbery or theft is unlawful taking. So, once the property is unlawfully taken from the owner, it becomes
consummated. Why do you have to determine first if he can already really dispose of the property, why
should you think that is an element? In fact, in the definition of theft, there is no essential element of free
disposal of the property. It is the unlawful taking. So, they removed that second requirement and,
therefore, if they remove that second requirement, wala nang consummated theft.

Example, under the old doctrine, if you are caught inside the mall so here comes a shoplifter. Of course,
always a lady. Wala pa kong nabasang lalaki na naging shoplifter eh. Di ba? Meron na ba? Wala.
Bibihira. Why? They cannot conceal the thing stolen. Mga babae kasi they can pretend to be no offense
to the ladies ha? They can pretend to be pregnant. Itatago niya lang or they can insert the most of those
commit the crime of shoplifting or the shoplifters, rather, usually concealed the things stolen inside their
bras. They use oversized bra. Doon ipapasok then they pretend to be pregnant. Ipapasok dun. Eh sa
lalaki saan itatago? Wala namang bra ang lalaki. Kasi kung nagba-bra yung lalaki, bibili pa ng wig yan
para magmukhang babae, di ba? So, usually ganyan.

So, under the old doctrine, if one is caught before he could get out from the mall, that is frustrated theft
because he cannot really dispose of the property stolen if he will not bring it outside. So, that is frustrated
theft. But because of this new doctrine where free disposal or freedom to dispose is no longer an
element, the moment that you took property from another without his consent, it becomes now
consummated crime of theft.

Article 308 Paragraph 1

So, let's now go to the crime of theft. So, by merely taking the property of another without violence or
force or intimidation that becomes a crime of simple theft. But there are enumerations 1, 2, 3 under 308
where theft can likewise be committed hindi ba? You find something that does not belongs to you, you do
not return to the owner or to the authorities, theft yan. Pag kayo nakapulot nyan ibalik nyo ha. Theft yan
under Paragraph A.


Then Paragraph 2 has something to do with malicious mischief in Article 327. When you maliciously
destroy or damage the property of another and then make use of the damaged property, you are not an
accessory. You become liable for the crime of theft, hindi ba? When we took up Article 19, sinira mo yung
gulong or pinatay mo yung aso, di ba? You kill the dog because the dog bit your maid and you love your
maid very much and then you eat the dog meat with some of your friends. The one who killed the dog is
liable for malicious mischief. Those who benefited from the dog meat are liable not as an accessory under
Paragraph 1 of Article 19 but liable to the crime of theft by virtue of Paragraph 2 of Article 308.



4D 2007 138
And then the other one is Paragraph 3, you have to connect Paragraph 3 with Article 281 under forms of
trespass and the Paragraph 3 of Article 308 and Article 312, occupation of real property. Di ba we took up
Article 281? When you enter an enclosed estate that means that the owner prohibits the entry of other
persons. You'll become liable for other forms of trespass, is it not?

Now, when you enter an enclosed space and the later on you claim that that is your property, you use
violence or intimidation in entering the property, then you become liable for Article 312, occupation of real
right, because it is the entry of a real property which he intends to gain.

Now, what is Paragraph 3 of Article 308 which is a crime of theft? When you enter an enclosed estate,
then you start harvesting farm products or fish, di ba? The crime is or fruits from the trees, enclosed,
walang tao, naka-enclose, may punongkahoy diyan, may isda diyan, ninakawan mo yan. Theft yan as
long as it does not fall under qualified theft in Article 310 di ba? You fish from a fishpond, that is qualified
theft under Article 310 or you gather coconuts from coconut plantation that is qualified theft. So, therefore,
what is contemplated in Paragraph 3 of Article 308 would be the gathering of fruits other than that
coconut from plantation or the fishing of fish other than fish ponds because if the fish is gathered from a
fish pond, qualified theft. Usually, the law that is applicable here or the situation that is applicable here
yung enclosed estate ng mga prutas, nagnakaw ka ng prutas sa puno, theft ka niyan under Paragraph 3
as long that estate is enclosed.

Article 309 Penalties

Okay, then let's go to 309, you want to memorize? You want to memorize the 309?

No.

What is important in 309 is that the penalties there are like those in the crime of estafa. Theft and estafa
are the only two crimes where there penalties sometimes are dependent on the value of the thing stolen
for the subject matter of the crime of estafa. So, we usually consider 309 as a law that allows incremental
penalty. So, if you are asked What is an incremental penalty? in your bar exams, then they are referring
to a penalty of estafa and the penalty of theft. Because the penalty sometimes will depend on the value of
the thing stolen in theft and the damage caused in the crime of estafa. Yung ano, when the value of the
thing stolen is more than 22,000 pesos, that is found in Article 309 then for every 10,000 pesos in excess
of 22,000 pesos, an additional penalty of 1 year imprisonment but in no case shall the maximum penalty
be reclusion temporal.

So, let's say the value is 33,000 di ba? So, in excess of 22,000 pesos for every 10,000 pesos in excess of
10,000 pesos, there is an incremental penalty of 1 year. So, the penalty I think the penalty of theft is
prision mayor minimum and medium eh. Prision mayor minimum and medium if the amount does not
exceed to 22,000 pesos. But if the amount exceeds 22,000 pesos, then it shall be imposed in its
maximum and an additional penalty of 1 year in excess of 10,000 pesos. So, that means if it is 22,000
prision mayor ka. Pag meron kang 10,000 in excess of 22 dadagdag mo isang taon ha. But in no case
that the maximum penalty shall be 20 years or reclusion temporal. That's the meaning of incremental.
Only in the crimes of estafa and theft where the provisions provide incremental penalty. Kung ako
examiner diyan ang dami kong pwedeng i-tanong diyan eh tungkol sa penalty. Two-tiered penalty, three-
fold penalty, incremental penalty para mahirapan na sila. But they will ask you what is incremental
penalty, kung ako nagbakasyon yan baka examiner na ko, di ba?

Article 310. Qualified theft

Okay. Let's go to Article 310. Si Justice Callejo ang examiner ng Criminal Law. I thought they would be
asking the two-tiered penalty rule eh. Hindi niya tinanong eh. Favorite niyang subject yun eh, two-tiered
penalty rule. So he was the examiner. I'm surprised that he did not ask a question of two-tiered penalty of
which I will explain later on. Or the two-witness rule, paborito niya rin eh. He asked question of three-fold
penalty rule, but the question is enumeration eh. What are the penalties that can be simultaneously
served? You find that in Article 70, three-fold penalty rule.

4D 2007 139

Okay, so let's go to Article 310, qualified theft, where the penalty is two degrees higher that simple theft.
So, it becomes qualified theft because of the enumerations in Article 310 if committed by a domestic
servant or through grave abuse of confidence. Now, I really have to explain that.

Now, supposing the crime is committed by a domestic servant, is that always qualified theft? Because
some authors say that if it is domestic servant or grave abuse of discretion, their effect are two different
situations. So, therefore, if it is a domestic servant, there is no need to establish that is attended by grave
abuse of confidence. The grave of confidence pertains to other offenders. Like, for example, you have a
visitor. In old cases found in your book, you have a visitor. So, you allowed him to sleep in your house.
Ikaw pa ang ninakawan. Yun ang grave abuse of confidence because you trusted him, you allowed him to
sleep in your house, siya pa nagnakaw. Yun ang grave abuse of confidence. Because the element is not
only abuse of confidence eh.

Like in a crime estafa under Article 315 Paragraph 1. What is required in the crime of estafa is only abuse
of confidence. Grave abuse of confidence is different. It is more that abuse of confidence. So, when it is
the domestic servant, is it required that he gravely abuses the confidence of the master or the employer?
No. The grave abuse of confidence there refers to other offenders. But what is the requirement then of a
domestic servant? Just because she is a domestic servant, she stole from you and, therefore, qualified
theft. There is also some sort of confidence. There must be abuse of confidence by the domestic servant.

Example, you are here in the classroom. I always use that as an example. Then later on your domestic
servant is left in your house, but she has no access to your room. You lock your room, you lock your
cabinet, di ba? But she is your domestic servant. You went home and your domestic servant is no longer
there. She broke open your cabinet and then you have to take a bath because you've been out of the
house for the last 18 hours or 15 hours. You look for your underwear or bra and no longer there. It was
already gone. She ran away with your underwear. Question: Is that a crime of qualified theft just because
it is committed by domestic servant? That is not qualified theft. There must be some sort of abuse of
confidence not necessarily grave abuse of confidence. Mere abuse of confidence, yes, it will be crime of
qualified theft which is committed by domestic servant.

Example, you came here to school. She has access to your cabinet. In other words, you left if open
because you trust her. And then when you came home, she is no longer there and, therefore, ran away
your personal belongings, yun ang qualified theft. Because you allowed her to have access to your
personal belongings. But that is not grave abuse of confidence. It is merely abuse of confidence. So,
therefore, if it is a domestic servant, there must be some sort of abuse of confidence. Not just because
she is a domestic servant qualified theft na yan. Hindi.

And also in ano - one of the cases decided by the Supreme Court which is about the teller of a bank. She
receives deposits from a depositor, and then at the end of the day, she did not truly reflect in the deposit
slip the amount actually received by their deposits. Kinulangan niya. Instead of 300,000 pesos ang ni-
reflect lang niya 100,000 pesos and then 200,000 pesos, of course, she went home with the 200,000
pesos. Ang charge dun eh estafa. Anong crime yun? That is qualified theft. Why? Because there is
unlawful taking. We will take that up again when we take up estafa. What I'm saying here is that, in
relation to qualified theft, the teller is like a domestic servant. She is now entrusted to keep the money of
the bank, but she steals the money of the bank, then she becomes liable for a crime of qualified theft.
What is only required is abuse of confidence, not grave abuse of confidence. That becomes a crime of
qualified theft. Okay.

Now, the other thing is that when the subject matter of the theft is mail matters, then that's qualified theft.
Nagnakaw ka ng sulat, that's qualified theft. Or if the subject, when it is cattle, it is no longer a qualified
theft. What is the crime committed? Cattle rustling under PD 533, but under cattle rustling, it is not merely
the unlawful taking of a member of the bovine family. It also includes butchering of a member of the
bovine family without the consent of the owner. So, PD 533 does not only cover unlawful taking. It also
covers killing of a member of the bovine family without the consent of the owner. Baka akala niyo yung

4D 2007 140
PD 533 nagnakaw lang eh. Pag kinatay mo yung baka walang alam yung may-ari eh, yan. So, you have
to get the consent before you slaughter a carabao or a cow. Okay.

Then if the subject matter, likewise, is fish from a fish pond, coconut from a coconut plantation, it is also
qualified theft. The most important one yung ano theft committed on any or during natural calamity,
qualified theft yan. During flood, typhoon, qualified theft yan. Or when the victims are victims of vehicular
mishap or accident, qualified theft din yan. May nadisgrasya tapos yung nadisgrasya kinuha mo yung relo
niya, qualified theft yan. Not only simple theft, but qualified theft under Article 310.

And then when a subject matter is a motor vehicle, it is likewise qualified theft or even carnapping. Okay.
So, this time we have to explain. Now, if the subject matter of the asportation is a motor vehicle, what
crime is committed? Is it carnapping or qualified theft of a motor vehicle? Okay.

Now, RA 6539 or the law of carnapping may be committed in two ways. There are two ways to commit
the crime of carnapping:

1. One, when the taking is attended by violence or intimidation or threat. So, when you are driving your
vehicle and then somebody pointed a gun at you, "Give me your vehicle or else I will kill you," that is
carnapping. Because the taking is attended with violence, threat or intimidation.
2. The second manner of committing a crime of carnapping is under Paragraph 2 of the law, in any other
unlawful means. So, if the taking is unlawful, then that is also likewise carnapping.

Example, your car is parked at the basement, you are here inside the classroom, I hope it will not happen
ano. Just an example, when you went down after classes your car is no longer there. Somebody took
your car without your knowledge. What is the crime? That is, likewise, carnapping. The taking is not
attended by violence or intimidation, but the taking is in any other unlawful means. Why is it unlawful?
Because you did not allow him to get your car or your car is parked in your drive way, while you are
sleeping, somebody ran away the vehicle that is carnapping because that is also unlawful or in any other
unlawful means. That means that if the taking is not attended by violence or intimidation, but the taking is
without the consent of the owner, then it becomes likewise under unlawful means that is a crime of
carnapping.

But supposing you went to a car repair. So, you have your car repaired. Your agreement is that you will
reclaim your car after a period of 1 month. Then when you went to the car repair, the car is no longer
there. The owner of the motor shop ran away your vehicle with your vehicle. Question: That is a crime of
carnapping? That cannot be a crime of carnapping because the taking must be unlawful from the very
beginning. You allowed him to take your property because you want him to repair the car and, therefore,
that is not carnapping because carnapping is the taking is unlawful that means that the taking from the
very beginning is unlawful. That could not be carnapping.

Could that be a crime of estafa? No. What are the requirements of estafa? Minsan magkakamali minsan
yung when you speak of estafa, there are two essential requirements di ba? Sinasabi natin there must be
physical possession and there must be juridical possession, while in the crime of theft only physical
possession.

So, what's that juridical possession that we are talking about? How do you determine if it is attended by
juridical possession? When do you say there is juridical possession? Madali lang. You just ask yourself. If
you now file a case against him, can he put up a defense of ownership or unlawful possession of the
property? That is the meaning. If you now file a case against him and he can put the defense of being the
lawful possessor or can put up the defense of he being the owner of the car, meron juridical possession.
In other words, there is a juridical tie between the offender and the offended party. That is the meaning of
juridical possession. But in one case decided by the Supreme Court in People versus Santos that one
that I gave you as an example. Sabi ng Supreme Court don qualified theft yan ng motor vehicle because
there is no juridical possession to speak of, because the repairer cannot claim as the owner of the
property of the vehicle after one month because he is supposed to surrender the car to the owner. Hindi
ganon ang juridical possession.

4D 2007 141

The other example is this: You have a driver he is suppose to wait for you at 9:00 in the evening. He is
supposed to wait for you. So, he waited for 9:00. You assume that he is waiting for you at 9:00. The car is
with him, you authorize him to use the vehicle and, therefore, he is supposed to wait for you at 9:00. And
after 9:00, you can no longer find your driver on the basement. In other words, he ran away with your
vehicle and went to another town or province, you could no longer locate him. What crime did he commit?
That cannot be a crime of estafa because you only allowed him to take physical possession of the
vehicle, hindi ba? Walang juridical possession. Why juridical possession? Is there a juridical tie between
the owner of the vehicle and the driver, there is none. If you file a case against him, can he put up the
defense of ownership or can he put up the defense that is he is a lawful possessor? He cannot, hindi ba?
Walang estafa ron because there is no juridical possession.

Okay, crime, what is the crime committed? Is that a crime of carnapping? It cannot be a crime of
carnapping. Why? Because the taking of the vehicle must be unlawful from the very beginning. Because
nakalagay dun sa number 2, in any other unlawful means. The taking of the vehicle was lawful because
you allowed him to take possession of the property. Therefore, what is the crime committed? That now
becomes a crime of qualified theft of a motor vehicle. When the taking is lawful from the very beginning,
but if it's becomes unlawful later on, that is a crime of qualified theft. That is what the Supreme Court said
in People versus Santos. So, therefore, there is still a crime of qualified theft of a motor vehicle. Hence, in
carnapping, the taking must be unlawful from the very beginning. If the taking is lawful from the very
beginning but such became unlawful afterwards, it will be qualified theft of a motor vehicle.

Now, the problem there is that when in the occasion of carnapping, a person is killed, not necessary the
owner, nakalagay don if on the occasion of carnapping a person is killed, then the crime is what do you
call the crime? You cannot denominate the crime as carnapping with homicide because in Republic Act
6539, the law does not use the word or the term homicide. What the law uses is the word killed. So, in the
occasional of carnapping, a person is killed it, becomes a special complex crime. That is a special
complex crime. And, therefore, the crime should be denominated as qualified carnapping or what Justice
Davide said, that's what Justice Davide said yung case of People versus Medina. Qualified carnapping or
carnapping in its aggravated form, not a carnapping with a homicide because the law does use the term
homicide.

You only use the word homicide in a special complex crime when the law uses the word homicide. Like,
for example, when on the occasion of robbery, homicide is committed, gamitin mo yung robbery with
homicide. Or when on the occasion of kidnapping with serious illegal detention, homicide is committed,
gamitin mo yung homicide. Ngunit kung hindi ginamit yung homicide, killed lang, you make it qualified
carnapping.

Unless, of course, if the law itself says that that is a qualified crime like in the crime of qualified piracy. Sa
Article 123, the law already denominates the crime as qualified piracy. Nakasulat yun sa title e. Kung yun
ang ginamit ng law, qualified piracy, yun ang sundin mo. Although under Paragraph 6 of Article 123 if
homicide or rape is committed, do not denominate as piracy with homicide because the law itself
denominates it as a crime of qualified piracy. Ngunit kung walang nakalagay sa law on the proper
denomination of the crime, then you use qualified, that means qualified carnapping because the law does
not use the word homicide, killed. But if the law does not denominate what is the crime, but uses the word
"homicide," then denominate the crime as robbery with homicide because that is what is used by the law,
okay? Now, yes?

S: Sir, what if a motor vehicle was taken. The taking was lawful from the beginning and so it is a crime of
qualified theft. But then someone was killed later on. What is the crime?

P: That's a good question. Kasi yan when it is a qualified theft of a motor vehicle under Article 310 and
then supposing on the occasion so the driver ran away the vehicle. If two days or three days after,
policemen ran after him, and then as a result, there was a fire fight, one of the policemen was killed. So,
on the occasion of qualified theft, a policeman was killed. So, how will you denominate the crime?


4D 2007 142
Now, you could denominate the crime as qualified theft? Okay, so that's a good question. Kasi if it is
carnapping - if on the occasion of carnapping, somebody is killed then it becomes special complex crime
because under 6539, it recognizes the killing as a crime that really committed on the occasion of
carnapping. But if it is a qualified theft, the law does not recognize a crime of killing on the occasion of
qualified theft eh. So, if therefore, somebody dies on the occasion of the qualified theft, then you can still
complex the crime as qualified theft with murder or qualified theft with homicide, but no longer under the
principle of a special complex crime. It will be under the principle of Article 48 as a complex crime.

Ang maganda roon kung tatlo ang namatay. Suppossing in a carnapping, three died. How will you
denominate the crime? Regardless of the death because that is a special complex crime, you always
denominate the crime as qualified carnapping whether it is done with treachery or not, it is qualified
carnapping because that is a special complex crime. But if it is a qualified theft, if the crime committed is
murder, of course, you can qualify the crime as qualified theft with murder because that is a complex
crime under Article 48. That's a good question.

Article 311 Theft of the property of the National Library and National Museum

Okay, so lets now go to the other crimes no, 311, theft in the national Museum, pabayaan mo na yan. I-
memorize mo na yan, memorize, memorize lang ninyo yan, ano ha.

Article 312. Occupation of real property or usurpation of real rights in property.

So we are trhough with PD 352, PD 533 and the other crimes covered that we are supposed to take up.
Article 312 that is very important. That's where you find the doctrine alid down in People versus
Honorable David Altex, this has not yet been asked in the bar exams. So, if I am the examiner, I will ask
it. What is the principle of the two-tiered penalty rule and what is occupation of real right? So we studied
that when we also took up other forms of trespass. It is the occupation of a real property with the use of
violence or intimidation. With violence or intimidation with intent to gain, so it is actually a crime of
robbery, but you do not call it a crime of robbery because the subject matter is not a personal property it
is a real property. There is no such thing as robbery of a real property as I've told you. Kasi pag robbery
you have personal property and ran away. How can you run away with the real property? Eto parang land
grabbing. In other words, it is a crime of land grabbing under Article 312, but then grabbing is the term
used by the laymen, but actually it is a crime of occupation of real right or occupation of real property with
intent to gain.

What is the two-tiered penalty rule? You look at the penalty in Article 312 there are two penalties that may
be imposed:

1. Penalty of the imprisonment.
2. Payment of a fine.

Now the payment of a fine is fixed in Article 312. Maliit lang fine niyan. Di ba maliit lang? What is the fine
in Article 312? It's 200 to 500 lang e. Almost equivalent to arresto menor. That's a light penalty. Supposed
to be that's equivalent to arresto menor. Two hundred pesos fine, that is fixed. But if you look at the
penalty of imprisonment, the penalty of imprison is not fixed. The law does not provide for a specific
imprisonment under 312. But the penalty of imprisonment is dependent on the extent of violence that is
employed.

So that's why it is a two-tiered penalty rule because although the amount of fine is fixed by the law,
imprisonment is dependent on the extent of the violence that is used in occupying that property. So, if the
violence is equivalent to grave threat then the penalty of grave threat plus fine. If the violence is
committed and is attended or is committed through killing and, therefore, you commit a crime of homicide,
then the penalty will be the penalty of homicide. So, that is the meaning of the two-tiered penalty rule. The
penalty of imprisonment will be dependent on the extent of violence that has been employed in order to
gain entry into the property with intent to gain.


4D 2007 143
Article 314. Fraudulent insolvency.

Now, 313 is just simply 313 basahin na lang yan. Article 314, fraudulent insolvency. Of course, that is a
crime. You make it appear that you are insolvent in order to escape payment of credit or debts. That is
fraudulent insolvency under 314. Walang masyadong mabigat yan, just read it. But it does not mean that I
will not ask you a question on fraudulent insolvency.

Article 315. Swindling (estafa).

Okay, lets go to the crime of estafa under we will finish estafa and then we will go to the (unintelligible)
para may break kahit na konti. (Unintelligible). Okay na. I am only joking, I'm only joking. Okay. Let's go to
the crime of estafa. Yan may tinanong sa bar sa estafa, on falsification. Request yun ni where is that?

Okay, what is the difference between estafa and theft before we go to the crime of estafa? I've told you
already, yun sa estafa, when we speak of theft or robbery, the taking is always without the consent of the
owner. Unlawful yan. But when you commit a crime of estafa, the offended party actually gives his
property. There is no unlawful taking. He practically gives the property. In the other words, she consents
to the property, subject matter, of estafa. The offended - in fact, the law says or in fact authorities say that
in a crime of estafa, the offender receives the property from the offended party. In theft, the offended
party does not give the property. It is taken against her will because of the unlawful taking. Yan ang main
difference.

Of course, the other difference will be there is physical possession and, likewise, juridical possession and
what is juridical possession? -There is a judicial tie so that he can put up the defense of being the lawful
possessor or he can put the defense of ownership. Yun ang juridical possession. Kailangan magbigay ng
problems. Like in the case, an old case, it was reiterated in the case of Roble versus yun nga, yung
bank teller. The bank teller received deposits. Sabi ng Supreme Court dyan that is theft, qualified theft not
estafa. So, yung bank teller nag receive ng deposit di ba? And then later on she did not turn over the
amount of P200,000 as part of the deposit during the day, that is a crime of qualified theft, not estafa.
Bakit? You try now to apply the two tests. One, meron bang juridical? Meron bang physical possession?
Number two, is there a lawful taking or was the crime it offended party- did she consent to the parting of
her money- of his or her money? So, the teller understood.

Bakit qualified theft? Because when a teller receives the money from the depositor, that money becomes
the money of the bank. So, if the money now deposited in the bank is now the money of the bank, and
then she does not declare all those that were deposited during that day, she is actually unlawfully taking
the property from the bank owner. Because when it is already received in the bank as deposit, that money
becomes the money of the bank. So, if she gets a part of that, there is unlawful taking. Therefore, that's a
crime of theft. There is no juridical possession. Because if you charge now the bank teller, can the bank
teller put up a defense that she owns the property or the money taken by her? Can she put up the
defense that she the lawful possessor of the property? Can you now charge her? So, therefore, there is
no juridical possession of the money of the bank teller, do you follow?

Now, it would be different before we go to the it would be different if you are an employee salesman.
Pag salesman ka, your work is to sell the products of your employer. So, you get out in the morning,
you're a soft drinks salesman. In the morning, you bring out the sales or the products of your company
with the obligation to remit the proceeds in the afternoon, and entitled to a commission. You base your
pay on commission basis and, therefore, you have a duty to return the unsold products or to remit the
proceeds of the sale. But you did not remit the proceeds of the sale in the afternoon. You ran away with
the money, yon ang estafa, not qualified theft.

Why estafa under the second example? You charge him now, is there a juridical tie? There is a juridical
tie. He is entitled to a commission. So, if you charge him now, can he put up the defense that he
possesses the property? Yes, because he is entitled to a part of it, part of the money. Crime of estafa
yon, not a crime of qualified theft. That is covered by Paragraph 2. I mean, subparagraph B of Paragraph
1 of Article 315.

4D 2007 144

Let's now go to estafa, 315. The crime of estafa may be committed in three ways:

1. When by virtue of abuse of confidence or unfaithfulness, that's number one, which is not actually
deceit, because deceit is different from unfaithfulness or abuse of confidence. Deceit is deception.
Panloloko. Abuse of confidence or unfaithfulness is that you enjoy some sort of confidence from
another, and then you abused that confidence. So, that is not deceit. Because you are party to it. The
private offended party actually is a part of the transaction in Paragraph 1. So, that's not deceit. It is
abuse of confidence.

2. But when the element, however, is found in Paragraph 2, when prior or simultaneous with the
commission of a fraud through misrepresentation of false pretense committed prior, simultaneous
with the commission of the fraud, number two yan, yan ang deceit kasi may panloloko from the very
beginning.

3. Through any fraudulent acts and then you have the enumerations, do you follow?

Okay. So, let's go one by one. When it is in Paragraph 1, you will read in Paragraph 1 of Article 315,
abuse of confidence or unfaithfulness, dun sa Paragraph 1 it refers to alteration of the substance, quality
or quantity. And there is an obligation to do so even if the consideration is illegal. That's Paragraph 1,
hindi ba? So, yong Paragraph 1 ng 315, it is a borderline between a civil obligation and a criminal
obligation because if you read Paragraph A or Paragraph 1 by altering the substance quantity or quality
under obligation, even if the consideration is legal, it becomes a crime of estafa.

I'll give you an example; contract of sale. Is contract of sale civil in character or criminal in character?
Contract of sale? Civil in character yan, why? Because if the other party does not perform his act required
in the contract of sale like payment, he does not want to pay, anong remedy mo? Are you going to file a
case of estafa? No. Your remedy is specific performance, and therefore, that is civil in character. But what
makes it a crime of estafa in a contract of sale? When there is an alteration.

So, if the agreement, therefore, is to deliver a contract of sale of 100 bags of rice, and it specified that the
quality should be Milagrosa or the best rice ano ba yon? Milagrosa ba yon? Masarap na kanin sa Nueva
Ecija. Anyway, the best rice in Nueva Ecija. So, it is a contract of sale of 100 bags or 100,000 sacks of
rice, the best rice. So, if there is a breach of the contract of sale, that is not a crime of estafa. It is civil in
character. You cannot be imprisoned for a breach of contract, because that is not criminal. But what
makes it a crime and what make it an abuse of confidence?

You could have not entered into a contract for the delivery of 100,000 bags of rice, if it later on what he
delivers would be NFA rice. Yon. Ang pinag-agreehan nyo 100,000 sacks of rice, the best rice in Nueva
Ecija, ngunit ang dineliver nya NFA rice. What makes it now a crime of estafa? It is the alteration of the
quality that makes it a crime of estafa. Not the nonpayment, because it is nonpayment or non-delivery,
that is not a crime of estafa. That will be only civil in character. That's why there is no deceit here. It's not
deceit that makes it a crime, but it is the unfaithfulness or the abuse of confidence.

Or you entered into a contract, delivery of 100,000 sacks of rice, ang dineliver mo lang 80, so you alter
the quantity it is not a breach of contract of sale. What is an issue? It is the alteration of the quantity that
makes it a crime of estafa. Yon ang alteration from Paragraph 1. Pati yong illegal consideration sa
gambling. Hindi ka nagbayad. Delivery of shabu, you sold shabu, illegal yan. Ang binenta mong shabu
tawas. The agreement is to sell worth 100,000 of shabu, then afterwards what you deliver is tawas, you
altered the substance, that is a crime of estafa under Paragraph 1. Because even if the consideration is
illegal, but are you going to file? Di kulong ka. Ang penalty ng drugs ilan? Life imprisonment to death.
Estafa is prision correctional maximum to prision mayor, minimum. Of course, there is also incremental
penalty. So, that's the meaning of Paragraph 1.

Even in Paragraph 2. It should have been a civil obligation only, but it becomes a crime of estafa because
it specifically provides in Paragraph 2, yan yong sale on commission basis. Sale on commission basis is a

4D 2007 145
civil contract. Trust, based on all by trust, administration or any obligations when there is a duty to
deliver, it becomes a crime of estafa. But all those contracts that are mentioned in Paragraph 2 are civil
contracts. But what makes it a crime of estafa? Because there is an obligation to do so in any obligation
to do so, and there is a duty to deliver. But in a contract of sale, there is also a duty to deliver. Why it's not
covered by no, contract of sale is not covered in Paragraph 2. Ang covered ng Paragraph 2 are only
those mentioned by law, sale on commission basis, trust, administration, and with the duty to deliver.
Yung sale there is no duty to deliver. What happens in a contract sale is the exchange of delivery and
payment, hindi ganun ang duty to deliver that's required under Paragraph 1.

I'll give you an example. Sale on commission basis, what that does mean? You sell pieces of jewelry
within a certain period of time. If sold, then you have to remit or you deliver the proceeds. If not delivered,
if not sold rather, then you return the unsold pieces of jewelry within the period of one month. Hindi ba
civil contract lang yan? But what makes it a crime of estafa? Because you misappropriated or you
converted the thing or the subject matter. What makes it a crime of estafa is that instead of returning, you
converted it or you misappropriated it for your personal use. That makes it a crime of estafa. Yung trust or
yung administration, pumunta ka sa America, bestfriend mo, "Pare itong kotse wag mong gagalawin ha,
babalik ako after two months. Puwede mong gamitin, but after I returned ibigay mo sa akin." O di
administration. Pagbalik mo dito binenta nya. Usually, that is not a crime because that is a duty to return.
Probably your remedy under your contract is to file a case for a specific performance, yong kotse. But
because it is for administration purposes, and you converted it or you misappropriated it for your own
benefit, it becomes a crime of estafa. Yon ang estafa that will make it a crime of estafa when you
misappropriated or you converted it to your own.

Yan obligation with a duty to return. Humiram ka ng libro, hindi mo ibinalik, hindi estafa yon. Humiram
tapos hindi mo binalik yong libro, hindi estafa yon because you have only a duty to return. But if you
misappropriated it, you converted it for your own benefit binenta mo tapos yong kwarta sa iyo na yon,
that will now become a crime of estafa.

So, what makes it a crime of estafa is that you misappropriated it, you converted it for your own personal
benefit. Ganun, kaya ingat kayo diyan ha kasi may tinanong sa bar, manager ng rice mill. May utang so
ang ginagawa, yong sa kita ng rice mill binabawasan nya, kinukupitan, may ledger. So sabi nya anong
crime yan? Kako plunder yan may ledger pala. Tawanan sila sa ledger. Plunder yan may ledger eh. So
sabi nila that is qualified theft because applying yong doctrine sa Roque versus People, yong teller, bakit
qualified theft? But if you'll try to read the past, estafa yon because she has the duty to deliver. She
misappropriated it for her personal benefit. The money, that she has a duty to remit, to deliver. She
misappropriated it, estafa yon.

What about the act of falsifying the ledger? Nag-agree kami that should be considered as private
document. Ang hirap kasi sa estafa through falsification of private documents. Hindi kako dalawang
crimes yon. Hindi puwedeng magcomplex ang estafa through falsification of private document. It's either
estafa or falsification of private document. Hindi ba natin pinag-aralan yon? Walang estafa through
falsification of private document. It is either estafa or falsification of private document. Why? Because
they have common elements. Estafa damage, falsification of private document aside from falsification,
there must be intent to cause damage. Hindi puwedeng mag-complex. Parehong may damage e.

Sabi ng mga taga hindi ko na mentionin, tatlong professor ang nandun eh." Hindi, estafa yan, through
falsification of private document." Bakit? The act of falsification was committed in order to commit a crime
of estafa. Sige na, yan ba ang tinuro nyo? O sige.

Walang estafa through falsification of private document. It could have been better if there are two crimes
if the act of falsification was for the purpose of concealing the crime of estafa, puwede yon. But not
complex crime, two separate crimes. When the crime of estafa - I mean, when the crime of falsification of
private document was committed in order to conceal a crime of estafa, two crimes.

Now let's go to Paragraph 1 subparagraph C, taking advantage of a signature in blank. That is estafa.
Let's say you entrusted the document, may signature doon, then later on you placed there she is

4D 2007 146
counterfeiting all the properties in favor, estafa yon. Yong taking advantage of the signature in blank
document, yon. So that is abuse of confidence.

What is important likewise in estafa is this - what is novation? Yung novation, an original contract is
practically altered by agreement of the parties. Pag nag-alter, the old contract is practically abandoned
and then a new contract is entered by the two parties. Di ba ganun ang novation? When the subsequent
contract changes the first contract, then that is novation. So the question is, what is the effect of
novation? Does it extinguish criminal liability? No, it does not, as a rule. It is not found in Article 89 in your
Revised Penal Code.

Novation is not a ground to extinguish criminal liability, whether total or partial. But there is only one crime
where novation maybe a in the ground of extinction of criminal liability in estafa, but not all estafa. The
only estafa that can be novated is estafa under Paragraph 1 of Article 315. Novation is not allowed in
Paragraph 2 or in Paragraph 3. Why? Because in Paragraph 2, estafa, the act is false pretense or
misrepresentation. You cannot novate a misrepresentation. Or in Paragraph 3, you cannot novate a
fraudulent act. What you can only novate will be Paragraph 1 of Article 315 because the enumerations
there specifically A and B, ha? The estafa in A and B in Paragraph 1 can be novated because it is a
borderline between a civil contract and an obligation arising from a crime. Hindi kasama yung C kasi
taking advantage of a signature in blank yon.

So, if therefore - example, you entered in to a contract of sale on commission basis. So, the offender
failed to remit what should have been remitted by virtue of the sale of those items on a commission basis.
Nakita mo nga yung tao, sabi mo, "Hoy, hindi ka pa nagre-remit ah? 200 thousand." He misappropriated
it. He converted it to his personal use, then sabi nung offender. "Pwede mo ba ako pagbigyan?" "Paano
gusto mo?" "Pwede ba hulugan ko na lang?" Hinulugan niya. The payment will now be on installment.
Ino-novate na yung una. Instead of commission basis, it may now become a sale by installment, ah wala
na yung estafa roon because the second contract novated the other contract. That's the meaning of
novation. But, you cannot novate something that is false or fraudulent from the very beginning. That will
only apply in Paragraph 1.

Let's say yung quantity, diba? Kulang yung quantity, otchenta lang. 100 ang pina-deliver mo, otchenta
lang ang diniliver, tapos sabi niya, pwede ba mag-enter ng contract, babayaran ko na lang ng cash yung
kulang tapos nag-agree kayo, ang nangayri ngayon unpaid. Binayaran mo, that already novated the other
contract because you accepted something that is different from the first contract. In other words, they are
no longer the same, ah wala nang estafa doon, but only in Paragraph 1, A and B. Thats the meaning of
novation. But that is the only crime that can be novated in our criminal law statutory. It cannot be
appreciated in any other crime. Even in the crimes of estafa under 316. Other forms of swindling or other
forms of deceit under Article 318 or 319 or swindling of a minor under 318 or other deceit in 319. Hindi
pwedeng ma-novate yun in Paragraph 1 of Article 315.

But, let's go the second crime, our second estafa, when the act of misrepresentation or fraud pretenses
prior or simultaneous with the commission of defraud. So, what does that mean? Madali lang yung ano,
ehyung prior or simultaneous. Now, the reason why there is estafa in Paragraph 1 is the
misappropriation of convention or the cause of abuse of confidence sa Paragraph 1. What is the crime of
estafa under Paragraph 2? What is in the crime of estafa? The crime of estafa is that under Paragraph 2;
the private offender party could not have parted her goods for these goods. Hindi ko sana ibinigay sa'yo
itong property ko if you didnt employ misrepresentation or false pretenses. On other words, the
motivating factor why I parted with my goods is the fact that you fooled me through misrepresentation.

Article 315 Paragraph 2 (a)

So, let's take the case of Paragraph 2 (a). Let's the case of a job recruiter. By pretending to have
influence; we will use that as example by helping, by pretending to have influence. You are pretending to
have possessed influence or authority, and so on panloloko. So, here comes a job recruiter, she
announces "I can bring you to Iraq for employmentjob employment. I'm a registered job recruiter, and
therefore I can bring you to Middle East in Iraq or Iran, or in Burma to work as domestic helper." So, you

4D 2007 147
were enticed by the advertisement, then you go to that person, then you ask him "Pare, ma'am, or sir, I
read in your advertisement that you can employ me to Iraq." "Oh, yes. I am a licensed recruiter. I can
bring you to Iraq or to any part of Middle East. I can give you employment, but you have to pay filling fee
or placement fee." "Oh, sige! Are you sure that you can?" "Yes! You're a carpenter, you're a skilled
worker, and I can bring you there if you need so." He was asked to fill up all the papers, okay? "You come
back tomorrow; you prepare P15,000 or P25,000; that will be used for the passport, placement fee, and
your ticket." The following day, he went there then pay the P15,000 only to find out later on that he's not a
recognized, authorized job recruiter.

Question: What is the estafa there? But, where is the crime of estafa that is committed by the recruiter?
He made it appear that he has the authority to bring workers and the reason why the private offended
party parted with her good is that she believed the misrepresentation of the offender that she could be
brought to the Middle East to work. And what is the damage? The amount P25,000. So, Where is the
prior or simultaneous? The crime of simultaneous is that I couldnt have parted with my goods if not for
the fact that you misrepresented yourself, if not for the false pretenses that you employed that you can
bring me abroad. Thats the meaning of estafa under Paragraph 2.

Article 315 Paragraph 2 (b)

But, of course, there are five enumerations. Yung altering of the substance or altering your own work or
your business. That is also (a crime). So, you make it appear. You prepare your work, diba? Your art or
business. Sabi mo, ito genuine ito. Gold ito, gold ring. Because I was the one who made it. So, you
sweet-talk the victim. Nabola mo siya, naniwala sa'yo, then you bought the ring. Question: It turns out
that the ring is not gold. If that is your own art, that is covered by Paragraph 2 (b) of 315. Why? Because
you altered if not for your sweet-talk or your misrepresentation, then I could not have parted with my
money. So, the reason why I bought that is because of your misrepresentation or false pretense.
Therefore, it must be simultaneous.

In other words, the act of misrepresentation must be prior or simultaneous with the parting of the goods.
Otherwise, if the parting of the goods is not simultaneous or the commission of the misrepresentation is
not simultaneous with/or prior with the parting of the goods, there is no estafa.

Article 315 Paragraph 2 (d)

Example, yung tseke. Issuance of a check, postdating a check. Diba under the paragraph, thats the most
important one. Subparagraph D of Article 315, Paragraph 2 yung may postdating a check, or issuing a
check will presented for payment. The same it is honored for insufficiency of funds. Yun ang the best
example under Paragraph 2.

What happens is this, sometimes you read in the book, when the check is used in payment of a
contractual of the existing or pre-existing contractual obligation, there is no estafa. Nababasa yon diba?
What is the explanation? The best way to understand that is like this. I'll give you two examples.

Mr. Zosa is the owner of a general store. So, I went there. So, sabi ko sa kanya, "Mr. Sosa, I want to buy
a ring for my wife." Sabi niya, "Sir mahal yan P100,000 yan." "Oo, sige. I can pay, but I'm sorry I didnt
bring my cash" "Hindi sir, may deposito ka ba?" " Siyempre! Ano akala mo sakin, manloloko! I have
sufficient funds, in fact my deposit is P1 million." So, I was able to sweet-talk him. "Okay, sige sir, dahil
may deposito ka, I will now give the ring to you, but you issue the check." So, therefore, the issue once of
the check is simultaneous with the parting of the goods of the pieces of jewelry that I bought, diba?
Because I assured him that upon presentment for payment, the check will be honored, he was convinced
of what I told him then he parted will be ring. Do you follow?

Now, supposing in the second example, the same example that I got going. I want to buy a P100,000
worth of jewelry, the he asked me, "Sir, meron ka bang cash?" "Wala eh! Ngunit may tseke naman ako
eh." "Saan yung tseke niyo, sir?" "Ay, sori. Nakalimutan ko yung tseke ko eh. But, I can come back
tomorrow, and then I will give you the check." So, thereanywhere, I trust you so you will give me the

4D 2007 148
ring and P100,000 thousand pesos. I do not have the check, but you already gave me the ring. The
following day, I went to him. "Okay, this is now the payment P100,000. I have the deposit of P1 million
pesos. If this check will be presented for payment, I will be honored because I have sufficient funds." In
both cases, in both examples, when the checks were presented for payment, the checks were dishonored
for insufficiency of funds. Therefore, the checks bounced.

In the first example, is there a crime of estafa? In the second example, is there a crime of estafa? Yan, in
the first example, that is a clear case of estafa. Why? He couldnt have parted with the ring if not for the
fact, if not for the false assurance or the misrepresentation that if the check will be presented for payment,
it will be honored. In other words, the motivating factor why he parted with the jewelry is my
misrepresentation that if the check will be deposited or presented for payment, it will be honored.
Tinangap niya, dahilan sa inassure ko siya, may deposito ang tseke. Therefore, the act or
misrepresentation is prior or simultaneous with the parting of the jewelry.

Do you follow? Now, in the second example, is there a crime of estafa? There is none. Because when he
parted with the ring, there was no yet check to speak of. There was no yet assurance that the check will
be in other words, the reason why he parted with the ring is not for the assurance that a check is
honored or dishonored because the check only was paid to him after he parted with the goods or the ring.
In other words, if I went there the following day, and then I told him that the check will be honored upon
presentment for payment, the jewelry was already with my possession. So, the reason why he parted with
the ring is not based on a misrepresentation, because the misrepresentation took place the following day.
And, therefore, it is not prior or simultaneous with the parting of the gold, therefore there is no estafa,
di'ba

Ganon lahat lahat sa 1, 2, 3, 4, 5. even in Paragraph E yung obtaining food from a restaurant. O-order ka
ng pagkain sa restaurant, hindi ka nagbayadestafa yan. Saan ang prior or simultaneous doon when the
parting of the goods? You sit in a restaurant, and then you order, the presumption is you will pay. In other
words, the restaurant owner could not have served you food if he knew from the very beginning that you
have no money to pay - kaya estafa yan. Or, when you leave surreptitiously an apartment. In other words,
you own the apartment, you did not pay, and you leave surreptitiously, estafa yan by express provision in
Paragraph E, 2-E. So very easy yung Paragraph 2, basta prior or simultaneous with the parting of the
goods.

If it is not prior or simultaneous - in other words, the parting of the goods or the money takes place ahead
of the misrepresentation, walang estafa yan. It must always be prior or simultaneous. That's why I said
while ago, that Paragraph 2 cannot be novated because there is always fraud from the very beginning,
only that is prior or simultaneous. Hindi mo pwedeng i-novate yan. Your remedy is to go to jail. So, in
Paragraph 2 walang novation yan because if you pay later on, what is the effect? Unlike in Paragraph 1, if
you fall under Paragraph 2, and then you pay later on the subject matter of estafa, what is the effect?
That is only a mitigating circumstance equivalent to a plea of guilty. But that will not erase your criminal
liability. Unlike in Paragraph 1, you novate it, wala ng crime. In Paragraph 2, you pay after a crime of
estafa that is an admission of guilt. The only effect is, it is a mitigating circumstance tantamount or
analogous to brutally surrender or even plea of guilty, di ba? Ganun.


Sa Paragraph 3 A, B, and C, mentioned naman eh. In Subparagraph A, and other fraudulent acts
enumerated yan. Sinabi ko na eh. Yung paragraph A. ano yung A? Signing of a document with the intent
to deceive concurrent with Article 298. In 298, you sign a document with violence or intimidation, that is
crime of robbery under 298. But if the signing of the document is attended by fraud with the intent to
deceive, estafa yan under Paragraph 1.

Yung Subparagraph C of Paragraph 3, we already took that up in relation to infidelity of the custody of the
document, hindi ba? You destroyed documents or records of the court with deceit. Hindi ba estafa yan?
Yes. But if it is not court records, then it's a crime of infidelity in the custody of documents that committed
by public officers. Kasi infidelity in the custody of documents can only be committed by public officers.

4D 2007 149
Doon sa crime of estafa in Subparagraph C in Paragraph 3 that can be committed by any person with the
intention to decieve. Kinain mo yung ebidensiya para manalo ka. Sirain mo yung ebidensiya para manalo.
You destroyed court records.

So, we'll continue. We'll take up the BP 22, yes?

Sir, what about nonpayment of credit card bills? May it also fall under estafa?

Nonpayment? (Unintelligible) Civil lang yan.. Nonpayment of credit cards.

Sir, even if at the time you used the credit card, you knew that you had no sufficient funds?

Wala yun. But, there was a question in the bar exams about credit card. Be careful. When the question
specifically mentions credit card, but then you take the bar exams, be careful with the question because if
it is a violation of a credit card, it is not a crime of estafa that may be committed. Ang crime diyan is
violation of the it is illegal use or unauthorized use of access device. It is a special law. I think RA 8484.
The law on access devices. Yung credit card fall under the term access device. Like for example, a credit
card was stolen. Credit cards, and then you use the credit card, anong crime? Anong crime? That will fall
on unauthorized use of access device. That is specifically punished by special law. Credit card is at risk, a
risk access device. That was asked in the bar exams. Nagnakaw ka ng credit card. Bumili ng TV. Stolen.
Everybody says that is estafa. Ako na lang ang nag-register ng objection, eh. Sabi ko that is not a crime
of estafa. That is a crime violation of a special law, unauthorized use of an access device and then we
agreed to it.

So stealing a credit card is a theft of device?

Yeah, of course.

And then after that he thinks about using it, so thinking na either criminal ___1:26:07, so two crimes sya?

Two crimes yan. Kasi special law yung unauthorized use. Access device.

But if he stoleif he stole the car

You know kasi it's not theft. It's like this. You can not commit the crime of theft if there is no value. If you
merely stole a credit card, walang crime yon because there is no value, eh. Anong contained in your
personal property ___ 01:26:31 because the crime of estafa is the penalty of estafa is determined by
the value of the thing stolen. Now, if you use that, then you may be committing a crime under the Revised
Penal Code but at the same time, you will be committing a crime also under special law, unauthorized
use of an access device. Credit card, 'pag ginamit mo yon. Now, if you are about to file a case of theft
because there will be now be unlawful taking, ginamit mo, you can charge him with theft likewise under
the Revised Penal Code. But if it is merely unauthorized use then there is no-you can not prove how
much was stolen, then the crime is only unlawful use, unauthorized use of access device. That was asked
in the bar exams. Ang sagot nga nila, estafa for the falsification of commercial document. Kako, hindi
puwedeng commercial document ang credit card because there is a special law about it. We agreed that
that-hindi pa nga estafa ang sagot naming dun. We agreed that the crime is unauthorized use of access
device, not even estafa. It is only one crime of unauthorized use of access device. You know what's the
penalty? Mataas ang penalty of access device, higher pa ng theft, unauthorized use of, ano? Access
device, higher than theft because theft is determinedthe penalty of theft is determined by the value of the
thing stolen.

Regardless of the amount like with

Hindi. Unauthorized use? Kasi madami ang ___ 01:28:08 na prohibited. Yung unauthorized, illegal use,
maraming acts that are punished. But if you stole a credit card then used it, the crime is unauthorized use
of access device.

4D 2007 150

Sir, regardless of the amount?

Regardless of the amount. Mataas ang penalty niyan. Kasi ang theft or estafa, dependent on the amount,
eh. It cannot be even be more than reclusion temporal. At saka mataas ang amount, ang estafa or theft
before you reach the crimes, before you reach the penalty of reclusion temporal. Pwede ka ng reclusion
temporal, the amount should be more than 100,000 na yan, in order to be reclusion temporal. Okay?

Sir, unauthorized use din ba yung duplicated credit card?

That's also under the special law. That's a crime if that will be illegal use or illegal manufacture or illegal
production of access devices.

Under Paragraph A of Paragraph 2 of ___01:29:09 hold in preventing to protect the ___ 01:29:12. So
what

Power, power to influence.

___ 01:29:21. For example, an extension of a credit of a company to a credit card sir. That's why a -

No, it's not the credit card. An example there is that, you make it appear that, you go to a bank then you
make it appear that you have money. As long as it does not fall under PD 115 kasi under PD 115, it's
there in PD 115. Trust Receipt Law. Yung Trust Receipt Law, let's say you open a letter of credit and then
you make a promise that based on your business, you will pay religiously the amount that you borrowed
under the trust receipt. Pinapapirmahan ka ng trust receipt. Then if you do not pay, if you do not comply
with the provisions of the trust receipt which includes nonpayment, you're liable for the crime of estafa.
What is punished there is not the nonpayment of the debt but what is punished there is the violation of the
conditions in the trust receipt. Yon sa PD 115 there, I put it up there, that should be included. That is
included in the bar exams, PD 115. Yung possessed credit or agency, you make it appear that you have
money where in fact, you do not have.

Kasi marami sa Paragraph A, e. Possessed influence, having bribed a government official. Itong
Paragraph A, ito yung manloloko, yung magaling mag-sweet talk. Yung pinapaniwalaan mo lang ang
sinasabi. Sabi niya, "Uy, meron akong bahay ibebenta ko sa'yo. "Yun pala, wala namang bahay.
Nagbayad ka ng kwarta, alis, ayun, that's estafa. But we must be always-the motivating factor why the
___ 01:31:05 is that the misrepresentation should be always prior and simultaneous. Hindi pwedeng you
gave money and then niloko mo siya, walang estafa roon. That is the meaning of prior or simultaneous.
Parang ano yan, parang yung simple seduction under Article 338, yung simple seduction. Nakalagay dun,
when a woman between the ages of 12 and 18, virgin, who consents to a sexual intercourse through
deceit. Ganon din yon, prior or simultaneous din. Yung babae, girlfriend mo, 15-year-old, you brought her
to a motel. Tapos sasabihin niya, "O, sige, surrender mo na ang sarili mo." Girlfriend ka na, matagal na,
eh. 16. Sabi naman nung babae, "Ay, hindi. Gusto ko, we'll first get married." Tapos sabi ng lalaki, "Ikaw
naman. Iba na ang mundo ngayon. Dati, ang bilang 1,2,3. 1,2,3. Ngayon iba na. 1,2,3, 1,2,3,4, let's go.
Hindi na 1,2,3."

So in other words, "Iba na ang mundo," sabi nya. Dati nakakaabot lang sa buwan, dati hindi pa
nakakaabot ng buwan, iba na ngayon. Then sabi nung babae, "A, hindi. Maria Clara." "Ay, matagal na
kami ni Maria Clara, ikaw naman." Then sabi nung lalaki, "Huwag kang mag-alala, pakakasalan kita. I will
take care of you, papakasalan kita, ayusan kita, lahat-lahat. Bigyan kita ng bahay, hindi kita iiwanan.
Magka-anak ka man, hindi kita iiwanan." Lahat sinabi mo na. Then, eventually, the girl, because of the
persistence of the boy, the boy succeeded in having sexual intercourse with the girl. Simple seduction
yon. Bakit? Because had it not been for the misrepresentation of the boy, she could not have surrendered
herself.

Ganon din sa estafa sa Paragraph 2. You reverse that. Pumayag muna yung babae and then yung
babae, iyak ng iyak. Sabi niya, "Paano ako ngayon?" "Hindi, eh, pumayag ka e. Pakakasalan naman kita,

4D 2007 151
eh, di ba?" So in other words, pumayag muna yung babae bago niya pinangako na pakakasalan at lahat-
lahat. Yun pala, hindi nya pinakasalan. Walang simple seduction doon. Because the decerit is not prior or
simultaneous with the sexual intercourse. Ganon din ang estafa sa Paragraph 2. If the act of the
misrepresentation or false pretenses could not be prior or simultaneous with the parting of the goods,
walang estafa yon. Because the motivating factor why you gave your money or your property is the
misrepresentation. Kaya dapat prior or simultaneous.

Unlike in fraudulent under Paragraph 3 because that's not required, prior or simultaneous. Because the
act in Paragraph 3 is fraudulent from the very beginning. What's mentioned there is the crime of estafa is
the act of fraud. Yung sa Paragraph 2, what makes it a crime of estafa, yung sweet talk, pangbobola.
Yung pangbobola iba sa fraud. Doon sa Paragraph 1 naman, what makes it a crime of estafa, yung
abuse of confidence. Yung abuse of confidence don, I could not have parted if not for the fact that I have
confidence in you. Yon.

Ngayon, yung other forms of estafa, swindling, under 316. If the swindling does not fall in 315, then the
law that is violated is 316. Pati yung reading of the palm, yung mga palmers, those who interpret dreams.
Estafa yan sa 319. Oo, other forms of deceit yan. Pupunta ka dun sa nagbabasa ng ano, palm reader. "O,
anong ibig sabihin nitong kuwan?" "Naku, maganda ang maging asawa mo kasi" Ganon ganon. Ang
dami na nyang nasabi, yun pala hindi totoo. "Nanaginip ako kagabi, interpret mo."
"O, magbigay ka muna ng kwarta." O bigay mo. That is the damage. Tapos interpret nya ung dream.
"Anong" "Wet dreams." Sabihin, "Interpret ko." E, umihi ka lang, eh. Alam mo, ang other form of deceit,
tarantadong yan, eh. That is a crime under 319. Kaya wag tayong mag-ano. Okay, who are late?
Malabanan, Karen? Kim Po. Soza. Ladores.

Here.

O, Chua, Jun?

Sir.

Only one is absent? Si Quimpo, andyan, no? Kim Po? Sinong absent? Malabanan? Zoza? Karen
Malabanan? Maria Christine Quimpo. Nagra-raise ka din kasi, dalawa pala ang nandito, eh. O ako ang
mali? Okay. Now, so we still have two meetings by Monday and Wednesday. I will make it a point-no,
except Wednesday. Probably I cannot see you anymore on Wednesday. I'll be going to Davao for a
lecture. I thought that tama na sana ngayon. So anyway, we'll try to finish by Monday. Those that we'll not
we can't finish it. Qualified seduction, simple seduction, forcible abduction, alam ninyo na yan. Acts of
lasciviousness, alam ninyo yan. Malayo sa libel probably or--madali lang, 10 minutes tapos na tayo nyan.
Oo. Ano lang ang libel? Libel in writing articles, television shows or radio programs. Anong oral
defamation? Oral. Anong slander ___ 1:36:52? Sampal. Ano pang hanapin mo dyan? If it is not attended
or it is not witnessed by anybody, what's the crime? You uttered oral defamatory statement. Nobody saw.
Anong crime? Between the, if what is already uttered is364 yan. ___1:37:19. Kasi ang libel, oral
defamation and slander by deemed, the number one element is there must be publication.

Yung publication, there must be witnesses. Because you can not defame the honor of somebody else if
nobody heard it, if nobody saw it, nobody read it. If nobody read it, nobody saw it, nobody- you know, the
definition of libel? The crime is committed against the honor. But if it is slander by deed, it may either be it
ill treatment if there is injury. If there is no injury, it is unjust vexation. Sinampal mo, di ba? Pag may injury
yon, ill treatment yan. Then it will not require at least one day of medical treatment or incapacity. Kung if it
requires seven days or six days of incapacity, slight physical injuries yan.

But if there is no prolonged medical treatment or there is no incapacity, then that is still slight physical
injury but the crime actually is ill treatment as a slight physical injury. But if there is no ill treatment, there
is no injury or whatsoever, the crime is likewise unjust vexation. But if somebody saw you; however, just
slight, that is already slander by deed. Basta may nakakita. Oral defamation naman, oral defamation kung
may nakarinig. Kung walang nakarinig, as long as the defamatory statements are really defamatory, then
it will fall under the crime of intriguing against honor under 364. Madali lang yan.

4D 2007 152

Then you should know what are the two kinds of malice in law and malice in fact. If the defamatory
statement is a libelous article, malice in law is always presumed. But that is not the requirement in order
to be liable. There must also be malice in fact. Ano yung malice in fact? Intended really to malign. If it
does not fall in any of the privileged communication under Article 354, yung fair reporting. Anyway, madali
lang yan. Bigamy.

There is one case that I would like you to read in bigamy by a new doctrine labeled by the Supreme Court
in the case of Manuel versus Republic of the Philippines. Because of the amendment of the Civil Code.
Sa bigamy, hindi ba? Sain your Civilis there a need to go to the court and then ask for a judicial
declaration that somebody is already dead? Because there is a presumptive death, di ba? Kasi nung
kami kumuha ng law, yung more than seven years yan, you're already presumed dead. You do not go to
court and then ask for a judicial declaration. Under your new Civil Code, di ba you have to get a judicial
declaration?

Question: In bigamy, you marry for the second time. The husband has been absent for more than 20
years. No way. We cannotdi na makita. After ___1:40:24, nag-asawa after 20 years. On the 27
th
year,
biglang nag-appear yung first husband. Question: Is the wife liable for bigamy? Yes. Under the law, you
are liable for bigamy. You have now to go to court and then declare. You get a judicial declaration of
presumptive death. Ngayon, liable ka na dyan. That's now the new doctrine. Under the old doctrine, hindi
kinakailangan. But because of the amendment in the Civil Code, your persons and family, that there must
be a judicial declaration or presumption of death, kinakailangan yan. That's the new doctrine. Kaya lang,
hindi ako nag-aagree don. Twenty years absent? Anung gagawin namankaysa kumuha ng partner in
the absence of marriage. Hindi ba mas masama yon? Hindi ba? Absent yung husband ng 20 years.
Anung gagawin mo? Kawawa naman yung babae, walang katabi. After 20 years, na-realize nya to get
married, and then she is still liable for the crime of bigamy because he did not go to court and then ask for
a declaration of the husband to be presumed dead. That is the case of Manuel versus People of the
Philippines. That's a new case. New doctrine. Let's pray.

END

BP 22 Bouncing Checks Law to Article 365

BP 22 Bouncing Checks Law

BP 22 punishes the mere act of issuing a worthless check. It is mala prohibita. You cannot, therefore,
include intent as an element of the crime.

Applicability to Closed Accounts

What is covered in BP 22 is when the check is drawn against insufficient funds. Question, if the check is
presented for payment and then it is dishonored on the ground of account closed, is that covered by BP
22? That's already covered in the case of People vs. Nitafan, although account loss is not mentioned in
the law as one of the grounds for a check to be dishonored. The Supreme Court said it is covered
because that is even worse than a check drawn against insufficient funds.

Applicability to Foreign Checks

Next question, is BP 22 applicable to foreign checks or are we going to apply the violation of BP 22 to a
foreign check? A foreign check is one that is drawn against a drawee bank located outside of the
Philippines. So, you open an account in Merced County, California. Then a tourist came to the Philippines
and then later on when he paid his hotel bills he used his check drawn against a drawee bank in America
but the check was used to pay his bills in Manila Hotel. Then later on when the check was presented for
payment, it was found that the check was not funded then therefore, dishonored for the reason drawn

4D 2007 153
against insufficient funds. But the only issue is whether or not Batas Pambansa 22 is applicable because
the check is a foreign check. Now the judge, that's also the case of People vs. David Nitafan, he said that
it is not applicable because Batas Pambansa 22 is only applicable to local checks or checks drawn
against a bank here in the Philippines. Supreme Court said BP 22 is applicable as long as one of the
elements is committed here in the Philippines, whether that is a Philippine check or a foreign check, our
Philippine law will apply. Why? Because the check was drawn here; the check was issued here. It was
used to pay an obligation here in the Philippines. Our Philippine Law will apply. The argument of the
judge jokingly, sabi namin dun, "Judge, talo ka kasi bouncing check yun eh." Sabi niya, "Baki?" You said
that a foreign check is not applicable but the Supreme Court said it is applicable. Then he said, "I think
the Supreme Court was wrong because the title of the Law is Batas Pambansa 22. So, it does not apply
to foreign checks. Batas Pambansa 22, in tagalog so it is not applicable." Anyway, that's not the decision.

When does a check become stale?

Number 3, when does a check become stale in BP 22? That's the case of People vs. Joseph Wong. A
check becomes stale when the check is not presented for payment within the 180-day period or six
months provided for in the Negotiable Instruments Law. It is not the 90-day period that you will find in
Section 2 of BP 22. It is the 180-day period or six months under the Negotiable Instruments Law. But it
might be used as a defense in BP 22. If the check is already stale and therefore it is already worthless,
one can no longer be liable for violation of BP 22 because a worthless check is not a check under BP 22.
It becomes only worthless when the check is presented for payment beyond the 180-day period or six
months from its due date.

Guarantee Checks

Next question, what about if a check is used as guarantee to pay an obligation? Is it a defense with
violation of BP 22 just because the check was issued to accommodate a borrower and that the check was
only issued in order to guarantee the payment of a loan? Supreme Court says even if it is used as a
guarantee check, he may be liable for BP 22. There are two cases actually where the Supreme Court
said that the drawer may not be liable even if the check is used as guarantee check. One is the case of
People vs. Francisco Sycip, 2001 where the Supreme Court said that the defense of one's right may be
the defense in BP 22 if the check is used to guarantee an obligation. What happened in that case is that
the drawer bought a condominium unit. Now the agreement because the condominium unit is usually pre-
sale, so the agreement is that Mr. Sycip bought a unit condition that the payment shall be made on
staggered basis, depending upon the rate of completion. Checks shall be paid and then he issued post-
dated checks. So, corresponding to an agreement of let say 10% of completion, then the amount that
amounted to 10% shall likewise be issued and presented for payment. So, that was agreement. So, every
month of completion, there is a corresponding payment of a check until the condominium is finally
constructed.

After several months, the condominium builder reneged on his obligation. So what Mr. Sycip did was to
call up the bank and order the bank to stop the payment in check because according to him his right was
violated because the time table as agreed upon by the builder and Mr. Sycip was already being violated
by the builder. He was not complying with the agreement to complete the condominium unit. So, he
stopped the payment of the check. But when the check was presented for payment, it showed that there
was no sufficient fund. If there is an order to stop the payment of the check then the bank is mandated to
indicate if at the time the order was made there was sufficient fund. Let's say, I called up the bank. "O,
you stop the payment of the check because the payee violated one of our agreements." Of course the
drawee bank will agree to an order because he is a customer. But if there is an order to stop the payment,
the bank should indicate if at the time the order was made, there was sufficient fund or not. Now, even if
there is order to stop payment, if at the time the order was made there was no sufficient fund, the drawer
is still liable, is it not? Now, what happened to the case of Mr. Sycip is that he stopped the payment of the
check but at the time he ordered to stop the payment of the check there was insufficiency of fund and
therefore, he should be liable even if there was an order to stop the payment of the check.


4D 2007 154
He was convicted in the RTC, convicted in the Court Appeals, but when it went to the Supreme Court, he
was acquitted on the ground of exercise of a right under Article 12, exercise of a right or an office as an
exempting circumstance. What is that right? Because under the Condominium Law, the buyer can stop
the payment if the condominium builder on pre-sale, sa pre-sale lang, does not fulfill his obligation in
completing the condominium within the agreed period. So, they have all the right to stop the payment and
therefore under this case of Sycip, he has every right to stop the payment and therefore he should not be
liable. Not because he used the check as a guarantee check but because he has every right under the
Condominium Law. If we do not agree with that decision, never mind. Why? Can you apply a defense
under the Revised Penal Code, to a malum prohibitum crime? But they applied that. Usually, can you
apply defense under the Revised Penal Code in malum prohibitum? No, because there is no intention as
an element of the crime but they use that as defense.

Now the other one is the case of People vs. Pacheco. What happened in the case of Pacheco was that
Pacheco was a small time vendor, a merchant. He wanted to borrow money from a usurer but the usurer
said, "Okay, I will lend you money but in so lending you, you have to issue a check to guarantee the
payment of the loan." Madam Pacheco had no checking account. Let's say she was borrowing for 50,000
pesos. And then the lender, "Okay, I will lend you the money. I will accompany you. We will go to my
bank." So they went to the bank and then the lender enticee the borrower to apply for a checking account.
And she was made to deposit an initial amount of 10,000 because that is the lowest amount so that you
can open a checking account. Once the checking account was issued, the 10,000 pesos that she used as
deposit became part of the loan that she borrowed from the borrower. So, she gave the amount of 50,000
pesos plus interest then used the 10,000 pesos to open a checking account. When there was already a
checking account, she required Mrs. Pacheco to issue a check in the amount of 60,000 to guarantee the
payment of the loan. She wanted payment of 50,000 plus10,000 interest. So, in other words it was the
complainants who required the borrower to issue a checking account so that once she has a checking
account, she will use the check to guarantee the payment of the loan. So, there was initial deposit of
10,000 pesos but she required to her to issue an amount of 60,000 pesos. When the check was
presented for payment by the lender, the check was dishonored for insufficiency of funds. Of course!
Because the amount deposited was only 10,000 pesos. Sabi ng Supreme Court she cannot be liable for
violation of BP 22 because at the time that she issued two checks, the payee knew that she had no
sufficient fund. Loko yun ano. But in all other cases on guarantee check, the BP 22 will apply.

Effect of Lack of Written Notice of Dishonor

Then you have the difficult questions that might be asked when you take up the Bar examination is
actually new doctrines that came about since the case of King vs. People. That was a 1999 case followed
by another case in Domagsang vs. Court of Appeals. What is the effect of lack of written notice and
dishonor? We did not have cases on written notice of dishonor before 1999. Probably, we never realized
the importance of a written notice of dishonor. So, probably the Supreme Court realized that time the
courts and fiscals are being use as collection agents. So, probably they tried to find a way to prevent the
filing of too many cases in BP 22. They found one which is written notice of dishonor.

Now, there are actually three essential elements of violation of BP 22:

1. The issuance of a check in favor of the drawee or the issuing of a check for valuable
consideration. So, you issue a check to pay the obligation, that's it.
2. At the time the drawer issued a check, he had knowledge that he had no sufficient funds.
3. When the check was presented for payment, the check was dishonored for insufficiency of fund
which will now includes account closed.

Now, the problem is not in element number one because that is the easiest to prove, when the check is
issued for valuable consideration. You just prove that it was issued for valuable consideration then you
shall have satisfied element number one. Element number three likewise is very easy to satisfy. You
present the check on its due date and then if it is dishonored for reason of insufficiency of fund or account
closed then you have satisfied element three.


4D 2007 155
The problem however is element number two because the law says at the time the drawer issued the
check, he had knowledge that he had no sufficient fund. If you interpret that element, that element is a
state of mind. The drawer, at the time he issued the check, he had knowledge that it had no sufficient
fund. Therefore, it is only the drawer who knows that he had no sufficient fund. But the one who will prove
that element was existing at the time it was drawn, is the payee. So how can the payee prove that at the
time the drawer issued the check, he had knowledge that he had no sufficient of fund? Now, the answer
is found in the law itself. And the law says that there is a presumption. In other words, in order to prove
second element, you have to prove that you are entitled to a presumption that at the time the drawer
issued the check he had knowledge that he had no sufficient fund. And how do you create that
presumption? The law says that despite receipt of a written notice of dishonor, the drawer failed to make
good the check within five banking days from receipt of the written notice of dishonor. Therefore, what is
the real effect of a written notice of dishonor? The effect of a written notice of dishonor because the
procedure is once the check is presented for payment and then it is dishonored, then he will receive a
copy of a written notice of dishonor the official paper from the bank where the bank now will state the
written notice of dishonor. So you will receive a written notice of dishonor from the bank, the drawee bank
will send a copy of that written notice of dishonor to the payee. And then, the payee will have to send the
drawer the written notice of dishonor so that he is warned that failure on his part to make good the check
within five banking days from receipt of the notice of dishonor will allow you to file for violation of BP 22.
That is a sort of warning, okay.

What is the effect of a written notice of dishonor? The effect of a written notice of dishonor, therefore, we
create a presumption that at the time the drawer issued a check, he had knowledge that he had no
sufficient fund. So, if you want to be entitled to a presumption that at the time the drawer issued the check
and that he had knowledge in issuing it, is to for you to give a copy of the written notice of dishonor. So,
that is the only way to fulfill the requirement in the requirement number two. There must be a written
notice of dishonor. So, in those cases of Betty King and Domagsang, because there was no written notice
of dishonor sent by the payee, the Supreme Court acquitted the accused because you could not prove
the second element of, at the time the drawer issued a check he had knowledge that he had no sufficient
fund. Now, several cases after since 2000, the Supreme Court however did not realize that if that is the
requirement that there must be a written notice of the dishonor, what will happen now is the drawer hides
from the payee. That's what they did. Ang dami. Yung mga abogadong magagaling, pinagtatago nila yung
drawer in order that he will not receive a written notice of dishonor. So, came two cases later on in 2005,
the cases of People vs. Yulo and People vs. Shama, where the Supreme Court said that what is only
required is not the actual receipt by the drawer but by giving a copy of the written notice of dishonor in the
residence of the drawer or given address of the drawer that can be sufficient written notice of dishonor.
Kasi kung tatago. Yun. That is sufficient.

Now, the other problem there is that there was this case later on penned by Justice Callejo, the lender
case. What happened there is, I forgot the title, 2005 case. Anyway, the facts are these. He is also a
Chinese. Thats the problem if he is a Chinese, he loves to talk. It is like this. The case was filed before
the court although there was no written notice of dishonor. Probably the lawyer did not file any motion to
dismiss because there is no written notice of dishonor. There is no probable cause to issue the warrant of
arrest at that time but the trial proceeded. There was written notice of dishonor. When the accused
testified, the private prosecutor was able to illicit from the accused that at the time that he drew the check,
he knew that he had no sufficient fund. In other words, what is the effect of a judicial admission that he
had knowledge that he had no sufficient fund if there was no letter of notice of dishonor? Will that
admission that he had knowledge of insufficient fund sufficient to cure the effect of a lack of written notice
of dishonor? Do you follow? So, he was convicted by the Lower Court. He was convicted by the Court
Appeals. He was acquitted by the Supreme Court through Justice Callejo. Sabi niya, "Even if he admitted
that he had knowledge that there was insufficient fund, if there was no letter notice of dishonor, he should
be acquitted." Why? So, they analyzed the provision on BP 22. Nakalagay dun, that upon the receipt of
the written notice of dishonor, he failed to make good the check within five banking days from receipt
thereof. What's the purpose of the five baking day? You are giving the drawer time to replenish the check,
make good the check, or pay the check. Now, if the drawer now pays the check or even replaces it or
make the necessary deposits to cover the check involved, what is the effect? Sabi nung Supreme Court,
the effect of within that five day period, you replenish it or place the necessary deposit, that will be

4D 2007 156
sufficient to what? That will rebut the presumption that at the time the drawer issued the check, he had
knowledge that he no sufficient fund. Because what is the presumption that is created is only disputable
in character and you can rebut it. And how do you rebut it? Within the 5-day period, he makes good the
check. So, if that requirement now is rebutted, then the drawer may no longer be liable for violation of BP
22. So, because you failed to give a written notice of dishonor, then you did not give him the chance to
rebut that presumption. So, he was acquitted.

Effect of Payment

Now, what is the effect of payment in B.P. 22? Payment of B.P. 22 before that, sabi that cannot
extinguish criminal liability, why? Because what is punished in B.P. 22 is the issuance of a bouncing
check. The main issue was the bouncing check by the drawer. That makes the drawer criminally liable.
So, even if he pays, he is still liable. 'Yan ang mga doctrines noong nakaraan. But in the case of People
vs. Teresita Vergara, it's a 2005 case of the Supreme Court and also another case of Chua vs. Court of
Appeals, and later on People vs. Teresita Vergara. The Supreme Court said payment will now extinguish
criminal liability in B.P. 22. No more violation of B.P. 22. The argument of the Supreme Court is that or the
reason of the Supreme Court is that when the reason of the law is already satisfied, then there is no more
law to speak of. When the purpose of the law is already satisfied, then there is no more reason for the law
to exist. Kasi maraming kaso ang B.P. 22, ang kaya Supreme Court gumawa ng paraan para matapos na
lahat 'yan.

The 90-day Period vs. the 180-day Period in Checks

Now, by the way, what's the purpose of the 90-day period in B.P. 22? Because under Section 2, the
check must be presented for payment within the 90-day period. But in the case of People vs. Wong, the
check will only become stale after 180 days. So, is there a conflict between the 180-day period in the
Negotiable Instruments Law and the 90-day period in B.P. 22. Meron 90 at saka 180. So, how will you
reconcile the two? And also the doctrine, take note, in People vs. Joseph Wong that it can only be
considered stale after 180 days. Now, there is no conflict. Now, the 90-day period in B.P. 22 is the period
wherein a payee is entitled to a presumption that at the time the drawer issued the check, he had
knowledge that he had no sufficient fund.

So, I'll give you an example to apply that 90-day period. You were issued a check some time in July 1.
July, August, September. So, July 1 then the 90-day period expires at the end September, is it not? You
have to present the check for payment from July 1 up to the sixth-month period in order that it's not
considered stale. But we check the bank stale after the 180-day period. What is now the 180-day period?
So, once the first day of due date and the end of September is the end of the 90-day period. If I presented
for payment on the first week of October, then the 90-day period had already lapsed. It is already lapsed.
But the check is not yet stale, why? Because the 180-day period is the one that will determine if the check
is already stale. What is then the effect of a check that is presented for payment beyond the 90-day
period, but within the 180-day period? Now, if that check now is presented for payment in the month of
October, and then it is now dishonored for insufficiency of fund, is it not? I will now send a written notice
of dishonor to the drawer. Now, will I be entitled to a presumption that at the time the drawer issued the
check he had knowledge that he had no sufficient fund although I sent a written notice of dishonor? No,
you are not entitled even if you send a written notice of dishonor. In order to be entitled to a presumption
that at the time the drawer issued the check he had knowledge that he had no sufficient fund. The check
must be presented for payment within the 90-day period. So, it is not for the purpose of determining if the
check is stale, but for the purpose of determining if you are still entitled to a presumption that at the time
the drawer issued the check, he had knowledge that he had no sufficient fund. So, you tell your friends.
He had to present that for payment within the 90-day period because it will be very hard to prove the
liability of the offender or the drawer if you are not entitled to a presumption. You may, of course, you can
prove it in some other ways, but how will you know if he had the knowledge that he had no sufficient fund.
Mahirap. Unless you can read a mind. Lagariin mo, tapos buksan mo, basahin mo.

Article 315 Paragraph 2 (d) Estafa Through the Issuance of a Bouncing Check


4D 2007 157
Let's go now to estafa through the issuance of a bouncing check. Now, under paragraph 2 (d) of 315, I
told you that the issuance of the check must be prior or simultaneous with the bartering of the good. So,
the distinction will be determined by, when that false pretense or misrepresentation was committed. Is it
prior to the bartering of the goods or after the bartering of the goods? Now, if the misrepresentation or
false assurances took place before the bartering of the goods, then that is estafa. But if the
misrepresentation or false assurances came after the bartering of the goods, there is no estafa. But still
the offender will be liable in both cases. He'll still be liable for violation of B.P. 22 because it is a separate
violation not under estafa.

So, you go to Mr. Zosa. He is a seller of pieces of jewel. You bought jewelry from him. You do not have
any cash. Then, you told him, "You sell to me the pieces of jewelry. I will issue to you these paid checks
and then when presented for payment. I assure you that they will be honored." Convinced of what the
buyer told Mr. Sosa, Mr. Sosa agreed to accept the check because of the assurance that they will be
honored upon presented for payment, and then barter this piece of the jewel. When the checks were
presented for payment, all checks were dishonored for insufficiency of fund.

And the other example, he agreed to barter with these pieces of jewelry, although the buyer promised that
he will return the following day and pay the pieces of jewelry. Mr. Zosa already gave the jewelry. So the
following day, he went to Mr. Zosa. "This is my payment, checks. When presented for payment, I assure
you it will be honored because I have enough money deposited in the bank." He accepted the payment of
the checks because he believed what his friend told him. All checks were dishonored for insufficiency of
fund.

You see the difference between the two examples. In the first example, he convinced Mr. Zosa to accept
the checks because they will be honored upon presentment for payment. Mr. Sosa was convinced of
what he said. Mr. Zosa bartered his pieces of jewelries. So therefore, there is a prior or simultaneous
commission of misrepresentation or false assurances. And because of the misrepresentation of false
assurances, Mr. Susa bartered with his pieces of jewelry. That is a crime of estafa because the reason
why he bartered with his good or pieces of jewelry is the misrepresentation of the buyer that the checks
will be honored. And then there'll be 10 violations of B.P. 22 because there are 10 checks involved. There
are just as many crimes committed as there are number of checks involved. In the second example, there
is no estafa because the misrepresentation took place after he bartered with his goods. So therefore,
sometimes they're the same. The checks were issued in payment of pre-existing contractual obligation,
but liable likewise for violation of B.P. 22.

Drawn Against Uncollected Deposit (DAUD)

The other one that I forgot in B.P. 22 is DAUD. Have heard about DAUD? People vs. Elisa Tan. That's the
case of People vs. Elisa Tan. DAUD Drawn Against Uncollected Deposit. Have you heard about drawn
against uncollected deposit? No. There are many agreements. This is an agreement that is usually
extended to a valued customer of a bank. A customer has a checking account to the bank, but they have
an agreement that if the check is issued which is more than the amount deposited or more than the fund
owned by the drawer, before the bank would dishonor that check, the bank will follow up the drawer, and
then the bank says, "Ma'am, you issued the amount of 50,000 pesos, but you have only 10,000 pesos
deposit. What shall I do with this check?" Then, the drawer will say, "Okay, you can hold on the check.
Anyway, before 3 o'clock this afternoon, the end of bank transaction on that day, I will make the
necessary deposit." Do you follow? But if the drawer now does not make the necessary deposit, the
check was already honored. But later on, when it is cleared, they will dishonor it on the ground of drawn
against uncollected deposit. There is a column there in the notice of dishonor. Meron nakalagay dun
DAUD. So, what happened with Mrs. Tan is that she issued a check more than the fund in the bank. Now,
before the check could be presented for payment, she called up the bank. She called that bank that if this
check will be presented for payment, do not honor it. In other words, she ordered the bank to stop the
payment of the check. There was an order. So, when the check was presented for payment by the payee,
the bank dishonored it on the ground of stop payment. But under B.P. 22, when there is an order to stop
the payment of the check, the bank is supposed to indicate if at the time the order was made there was
sufficient fund. That's a requirement under Section 3. The bank must indicate if there was sufficient fund.

4D 2007 158
What the bank did because he wanted to protect the drawer? Nilagay niya dun stop payment and then
DAUD, drawn against uncollected deposited. That was the statement. So, I convicted the accused. That's
my case actually. I convicted the accused. The Court of Appeals through Justice Villarama sustained my
decision. He called me up later on. Sabi niya maganda itong kaso mo. Tama ang ginawa mo. Syempre.
Tama ako. The amount of the check was 55,000 pesos. Then, the Supreme Court came up with the
decision. The Justice who wrote it is already retired. The Supreme Court said the accused should be
acquitted on the ground that B.P. 22 is not applicable when the dishonor is drawn against uncollected
deposit. Anyway, when we speak of drawn against uncollected deposit, actually there is no fund. It's not
really sufficient. DAUD, drawn against uncollected deposit. When the bank was requested to testify pero
mas gusto minsan ng bank, they only wanted to protect their valued client. So, sabi ni Justice, I forgot the
name, never mind the name. One time, I and Justice Bersamin confronted him. Why is it that he was
acquitted? "Justice, why did you acquit the accused in this case? 'Di ba DAUD is insufficiency of fund?" di
iniisip yung istory nya. He went around and then he did not answer the question. Anyway, he was already
retired. Now, we are both members of the committee on the rules of evidence. So, I just kept quiet na
lang kasi consultant siya. We just came out with the papers on DNA, the evidence on DNA. We were the
ones who prepared that. Anyway, so acquitted. Then when the decision was read by Justice Villarama,
he called me up. "Hoy, 'yung decision mo," sabi sa akin na-reverse. Bakit? Ay hindi, 'di ko decision 'yun.
Decision n'yo yon. Well, yun ang nangyari.

You know, when that Justice retired, another case similar facts, the same as that case that I recently
handled. I think in 2004, 2005. Same set of facts brought to the Supreme Court and the Supreme Court
changed its decision. Sabi ng Supreme Court, "If the check is dishonored for the reason drawn against
uncollected deposit and there is no sufficient fund, B.P. 22 is applicable. But if the check is honored by
the bank, no violation of B.P. 22." Of course, who will file the case if it is honored? So, that's not the
present doctrine. If it is drawn against uncollected deposit and there is no sufficient fund, that in my case,
then violation of B.P. 22. So, when that case came out, Justice Villarama called me up. Kasi pinag-
istoryahan 'yung case na 'yan, accounted because this is really the issue. Then, he called me up. Do. Oh,
Bakit? 'Yung desisyon mo kay Elisa Tan parang sinustain uli. Bakit? Sabi ng Supreme Court. Ano? 'Yung
desisyon namin. Sabi niya. Bakit sinustain na kami kasi there's now a latest desisyon. DAUD is now
covered by B.P. 22. Hindi, hindi 'yun desisyon n'yo. Desisyon ko yon. Now, that's not the present
doctrine. Pwede bang DAUD? 'Pag DAUD, 'pag walang sufficient fund, covered na ngayon. It's only used
to protect a valued customer.

Estafa vs. BP 22

Let's go back to estafa through the issuance of the bouncing checks. So, that's it. There would be as
many crimes violated of B.P. 22 as there are number of checks involved. But if it is estafa through the
issuance of a bouncing check, regardless of the number of checks issued on one occasion, the crime is
estafa through the issuance of a bouncing check. Kahit na isang daan 'yan if they were issued on one
occasion, only one crime of estafa because there is only one intention, that is to cause damage through
deceit. But there will be as many crimes committed as there are number of checks involved, because B.P.
22 is a malum prohibitum.

Article 315 Paragraph 2 (e)

Now, the other crimes of estafa yung sa Paragraph E. Kapag kumain ka sa restaurant, dapat bayaran
n'yo. Youre staying in apartment then, without permission, you leave out without paying, estafa yun. If
you asked permission to leave your apartment, there is no crime of estafa. What makes it crime of estafa
is that you bring out your baggage and you do not pay the rent. 'Yun ang estafa. But if you asked
permission to leave, and you have a check paid. Walang estafa doon. That is only civil in character. What
makes it a crime of estafa is that you left the apartment without paying rent with intent to defraud.

Article 316 Other Forms of Swindling

And then, other forms of swindling under 316. If you read the enumerations, all those enumerations that
are related in 316 are not found in Article 315. Because 315, 'yung Paragraph 1, limited lang sa tatlo.

4D 2007 159
'Yung Paragraph 2, limited lang sa lima. 'Yung Paragraph 3 fraudulent acts limited lang sa tatlo. Now,
what are those in 316? Lahat na klaseng estafa dun, panloloko. You sell a property that does not belong
to you. You sell a property that is encumbered. You sell a property that is subject of a bond. You execute
a contract which is fictitious. All of these are other forms of swindling under 316 because they do not fall
under 315. Ang problema lang dun sa 316, unlike in 315 where the law specifically provides the manner
of committing it. Sa Paragraph 1, abuse of confidence. In Paragraph 2, prior of simultaneous, sa
Paragraph 3 fraudulent. But if you go in Article 316, the law does not make or mention of the form of
deceit that is employed. Entering into a fictitious contract, that is estafa. Selling a property that is
encumbered, that is estafa. Selling a property that does not belong to you, that is a crime of estafa. A
property that is subject to bond and it is sold without the bond being canceled, that is also a crime of
estafa. So, lahat ng panloloko that are not found in Article 315, then it will fall under 316. But they are
specifically mentioned. Anyway, there are only six enumerations if you want to memorize. Madali lang
'yan i-memorize. And then 317, swindling with minor. That is self-explanatory. 318 is self-explanatory.
'Yung other forms of deceit where the penalty is only six months. If there is a deceit but it does not fall in
315, 316, and 317, and you can still file a crime of other forms of deceit under Paragraph 318. But under
the second example of 318, you have a form of deceit probably you don't know that is a crime. 'Yung mga
nag-iinterpret ng dreams. 'Yung mga palm readers and so on. They fall under 318. Why estafa? Because
they are giving you false hopes but you have to pay. Because if it is voluntarily given without any
payment, walang estafa because there is no damage. Still there must be damage. Of course, if there is
no damage, walang other forms of deceit under 318.

Articles 320 326-B Arson and Other Crimes Involving Destructions

Let's go to crime against property involving arson, Article 320 up to Article 326-B. Now, the problem with
arson is that this was amended by, the original provisions of the Revised Penal Code from Article 320 to
326-B were amended by Presidential Decree 1613. That was during time of Marcos. And under the
repealing clause of P.D. 1613 for this purpose, Articles 320 to 326-B of the Revised Penal Code had been
amended. But if you read the amendments in P.D. 612, what are actually amended are arson in small
value. Sa 321 to 326, these are arsons under small value.

So in other words, what are provided in P.D. 1613 are forms of arson excluding arson of small value. Kasi
under the Revised Penal Code, meron pang 50 pesos, destroying property through burning and the value
is, I mean, 200. That is arson of small value under the Revised Penal Code. But P.D. 1613 amended. So
therefore, when P.D. 1613 amended, the provisions of the Revised Penal Code, what remained as crime
in arson are destructive arson and simple arson. Destructive arson because to the subject matter of the
arson. Malalaking bahay, lahat-lahat. Destructive. You burn a vehicle then that is simple arson. You burn
a house that is destructive arson. There's no more arson of small value.

Now, however, in 1993 or on December 31, 1990, when the death penalty law came about Republic Act
7659, it again amended the law on arson but the amendment in 7659 only refers to simple arson and
destructive arson. Yung scope ngayon ng destructive arson under 7659, broader, and then the penalty is
higher. So ang question do'n, because it came out in the bar exams two years ago, whether or not there
is still a crime of arson of small value.

If you try to study the sequence of the laws on arson, there is no arson of small value because of the
amendments in PD 1613 and likewise because of 7659. The 7659 did not revive arson of small value.
Thats why we had a lengthy debate when we were answering the questions two years ago on criminal
law. The question was this, the brother gave a bag to his own brother for him to finish law. The value is
P500. Now, the brother failed to pass his subjects, so the brother who gave him the bag burned the bag.
Sinunog nya yung bag ng kapatid nya. Ang sagot nila arson of small value because any destruction of a
property as long as it is not ___ arson of small value. But the second question, what are the criminal
liabilities. So, the first question was, what is the crime committed? Number 2, is the brother criminally
liable? So the question therefore is hypothetical and also interesting questions because if your answer is
arson then the brother is liable, but if your answer is no arson but malicious mischief, then the brother is
not liable because of Article 332. Because under Article 332, the crimes of malicious mischief, swindling
or theft, under 332, if it is committed by the ascendant against the descendant or spouse including

4D 2007 160
relatives within the same degree of affinity, thats number 1 or number 2, the property of the widowed wife
in so far as the property of the widow, and then number 3, nakalagay do'n, crimes committed between
and among brothers and sister including brothers-in-law and sisters-in-law if living together. So therefore,
if your brother committed a crime of malicious mischief against you, there is no criminal liability by reason
of Article 332 Paragraph 3.

If your answer however, is arson of small value, then the brother is criminally liable because the
absolutory cause, 332 is an absolutory cause because the absolutory cause in 332, arson is not included,
limited only to malicious mischief, theft , and swindling. In other words, if therefore, your answer is arson
of small value, the brother is liable, but if your answer is malicious mischief, the brother is not liable
because of Article 332. So, some of those in the committee gave the answer to that, there is still a crime
of arson of small value. But sabi ko there is none because by clear provisions of PD 1613, Article 320-
326-B had been amended by that law. So that if 7659 amended PD 1613, 7659 does not state that crimes
of arson of small value are never touched in 7659. What is touched in 7659 is the broadened scope of
destructive arson. So as it is, therefore, there is no such thing as arson of small value.

Now, the other thing is that after PD 1613 was amended by 7659, you can now be liable for the crime of
arson even if you put on fire your own property. Yes, why? For purposes of claiming insurance, you can
be liable for a crime of arson. So, if it is a destruction of a property, well, you will become liable for the
crime of arson. And then the other thing is when do you consider arson attempted, frustrated, or
consummated? I think we studied that when we took up Article 6. Slightest burning is consummated
arson. If there is no yet burning but you already started burning, then that is consummated arson. If you
have not yet started burning it but you have already prepared the materials in order to burn a building,
that is attempted arson. Parang rape din ano? Slightest penetration. Pero if you burned this building,
isigurado niyo sunog lahat.

Sir, when burning your own property, is it a requirement that we have insurance for that?

No, you can be liable even if it is not insured. What I am only saying is that, just to give you an example
that you can be liable. Intentional burning can be liable for the crime of arson with more reason if it is
intended to claim insurance.

Article 327 Malicious Mischief

So lets go to malicious mischief, Article 327. Whats the crime of malicious mischief? Basically a
destruction of you know, the law is not accurate with its definition. Kasi nakalagay lang don, deliberately
causing damage to property. If damage to property is not done deliberately then the crime is reckless
imprudence and causing damage to property. So, the word "deliberate" is placed in 327, because if the
damage to properties done through reckless imprudence then the law that is violated is Article 365. But
deliberately cause damage to the property of another there must be a reason. There must be a reason
in order to annoy the owner of the property. Parang unjust vexation, you to want to annoy him but you
do not touch him or do not touch her, pang iisnab. Ito naman is some sort of evidence because something
was done to you ng nakainitan mo. So instead of doing harm against the person or cause an injury, you
might do harm to a property owned by the person. Like for example, the one that I told you, your maid
that you love very well was bitten by the dog of your neighbor. You killed the dog because the maid was
bitten by that dog that is malicious mischief. Or when you are courting a lady, there are two rivals. The
lady will not answer the both of them, ganun yun, di ba? Siyempre isa lang ang sasagutin nyan. The one
who lost punctured the tires of the one who won the heart of the woman. That is also malicious mischief.
In other words, it is done intentionally because there is a reason to do it. If there no reason to do it, then
he will become liable under reckless imprudence, by reckless impudence. But because of the word
"deliberate," that means there is a reason why he destroyed the property. Thats the meaning of
deliberate to differentiate it from reckless imprudence.

Articles 328-332


4D 2007 161
The other crimes of malicious mischief in 328 and 329. Other forms of malicious mischief are on National
Library and National Museum. Just read. And then 332 thats an absolutory cause. You know already,
what is an absolutory cause? Limited only to three kinds. Now, if the brothers and sisters are not living
together, the absolutory cause is not applicable. So you destroy the property of your brother, malicious
mischief. Nagka rival silang magkapatid But the other brother is not living with the other brother or
separately, then the absolutory cause will not apply because the condition in Paragraph 3 is that they
should be living together.

Article 333 Adultery and Concubinage

333, Adultery. Who is liable for the crime adultery? Married women. But the requirement in adultery is that
the married woman should indulge in sexual intercourse with a man not her husband. Unlike in a crime of
concubinage which is committed by a married man, there are three ways to commit a crime of
concubinage. One is having sexual intercourse with a woman not his wife under scandalous
circumstances, the other one bringing a mistress of the conjugal dwelling and number 3 is for cohabiting
with a woman, with his mistress. Mas mahirap yata i-prove yung sa babae. Because adultery is having
sexual intercourse of a woman with a man other than her husband. Sa lalake madali. Bringing a mistress
to into the conjugal home, yari ka diyan. Sobra naman yon, may asawa ka tapos meron kang dadalhing
iba. Or cohabiting with a woman not your wife. The problem there is having sexual intercourse and under
scandalous circumstances. Having sexual intercourse with a woman, not the wife, scandalous na yan.
Natural lang naman yung scandalous circumstances. Should the sexual intercourse done in public with
the public viewing it with other persons viewing? Or must it be that sexual intercourse are done openly?
Minsan yung mga writers ng batas natin ano - But the Supreme Court interpreted that as they thought you
could mean to catch the man in the act of sexual intercourse. Ang interpretation ng Supreme Court,
ibinahay mo yung babae, you placed her in an apartment building, although you do not sleep there
regularly but you hold her every now and then. Regularly you go there and it is known by those nearby,
that you are a married man and that you also living with that girl, not your wife, yun daw scandalous
circumstances, because it is immoral, yun ang scandalous. Pero mas mahirap ang babae, kasi ang
babae you have to catch them in the act of sexual intercourse. But there are many ways to catch a
woman under sexual intercourse. Pag nanganak yan at hindi mo anak, yun that is evidence. Ang problem
kung di nanganak problema mo yan. Because if you saw your wife in the act of sexual intercourse with
the man, better kill both of them. Yun di ka liable under 247. Then under exceptional circumstances, you
will be liable for a penalty of destierro. If you want to catch them in the act of sexual intercourse,
immediately interrupt her, kill both of them.
Do you know that Viagra is now promoted by the church? Viagra is now being promoted by the church,
but do not tell them baka alisin ako sa pagtuturo. I received a text, Viagra and Cialis are now accepted by
the CBCP, Catholic Bishop Conference of the Philippines. They are now being promoted by the church
for the simple reason that it is consistent with their belief that there is resurrection after death. There is
resurrection after death.

Article 336 Acts of Lasciviousness

Now lets go to 335. 335 has been brought to crime against persons. So, we took that up. So, because of
336, the acts of lasciviousness, you know already what are acts of lasciviousness. There is no intent to lie
down with a woman. It is merely a commission of lascivious acts, sufficient to satisfy the sexual lust of the
accused because if it is not to satisfy the sexual lust but merely to annoy then it becomes a crime of
unjust vexation.

Article 337 Qualified Seduction

337, thats a crime of qualified seduction. I told you already what is qualified seduction, when we took up
rape. The age of the victim must be between 12 and 18 of good reputation or the one physically virgin,
that sexual intercourse is done through abuse of confidence committed by those mentioned by the law,
domestic servant, priest, teachers and those who will influence over a woman. Except that, if the one that
is seduced is the daughter, under second Paragraph of 337, even if the daughter is more than 18 years of
age or if the daughter is not of good reputation, the crime committed is qualified seduction. So therefore,

4D 2007 162
the Paragraph 2 of 337, is an exception of the first paragraph. Because the requirements in Paragraph 1
are different from the requirements of Paragraph 2. Meron age bracket 12 and 18. Yung Paragraph 2 sa
father. Generally, the crime of qualified seduction cannot be committed against a woman who is a
prostitute. Unlike in the crime of rape, a prostitute can be a subject matter of a rape. But under qualified
seduction or even simple seduction, a prostitute cannot be the subject matter because the requirement is
virgin or of good reputation. Except if the victim is the daughter. Even if she is a prostitute if it is
committed by the father, qualified seduction yan under Paragraph 2. So do not have the wrong notion,
that the victim in the crime of qualified seduction is always a virgin and is always of good reputation. She
may be a prostitute, the offender is the father and the victim is the daughter.

Article 338 Simple Seduction

Now, simple seduction. The reason why the girl under 337 consented to sexual intercourse of carnal
knowledge is abuse of confidence.

S: Sir, with respect to that of the father and daughter, is there any instances like when a daughter is
adopted by somebody else? So this is

P: The law is very clear father. Biological father. Only the biological father will be liable, not the adoptive
father.

Now, in so far as Simple Seduction is concerned under 338, the reason why the woman consented to
carnal knowledge is deception. That is like estafa under 315 Paragraph 2. The deception should be
employed prior or simultaneous to the carnal knowledge. In other words, the reason why the girl
consented the carnal knowledge is the deceit employed by the man. Like what? The one that I told you,
promise of marriage. Sabi nya sige papakasalan kita. I will take care of you. Then the woman
consented, believing what the man said, simple seduction. But if the deceit was committed after the
sexual intercourse or the girl consented to sexual intercourse, and then the girl started crying and then
the man said, he consoled the woman, "never mind I will marry you" and so on then the girl gave birth, the
man did not appear anymore. No crime of simple seduction, because the deception took place after
sexual intercourse. Its like estafa prior or simultaneous.

4D 2007 163
Article 339 Acts of Lasciviousness with the Consent of the Offended Party

And then, 339 Acts of Lasciviousness with the Consent of the Offended Party. So there are actually two
types of Acts of Lasciviousness. The Acts of Lasciviousness in 336 refers to 335. That means it should
have been a crime of rape but there was no penetration or slightest penetration, so, acts of
lasciviousness lang.

In Article 339, the Acts of Lasciviousness pertain to 337 or 338. In other words, the victim consented only
to lascivious acts. So, what took place in 337 and 338, it is merely lascivious acts where the woman
consented, then the crime is Acts of Lasciviousness in Article 339. If there is no carnal knowledge or
sexual intercourse, then 339 is applicable.

Articles 340 and 341

Now, Articles 340 and 341. If the victim is a minor under 340 or 341 then the law has been amended by
Republic Act 7610. But if the victim is not a minor RA 7610 is applicable. The Revised Penal Code is
applicable only when the victim is a minor.

Article 342 Forcible Abduction

342 for simple abduction, when the woman is abducted against her will, we could ___. So what is the
purpose of the offender? To commit lascivious acts thats all. Nanliligaw, ayaw naman nung babae.
Siyempre pangit ka, then you waited for her outside of the building, and then took her against her will,
then tried to kiss her or you actually committed lascivious acts against her, thats a crime of forcible
abduction, under 342. But if the intent is to rape and rape is committed, there is no more forcible
abduction. The abduction of the woman by intimidation becomes the element of force or intimidation in
rape. That is required of the crime of rape. So therefore, lewd design does not include rape. Rape is not
done with lewd designs, this is more than your lewd designs. So if the purpose to take her against her will
and have sexual intercourse with her, then the crime is rape. The forcible abduction there will be
absorbed as an element of rape (force or intimidation). But you know, the case of Laraaga, because
from the time the women were taken and the two sisters were taken, the purpose of the offenders in lying
down with two women was not yet evident. Because what happened in that case is that they were first
taken against their will. Without any lewd designs and then later on, placed in a van and then later on in a
house and then later on they were raped. So the Supreme Court said, that is a crime of kidnapping and
serious illegal detention with rape. Because it was not evident from the very beginning if their intention
was rape. They were raped actually while under detention and where their liberty was deprived.

Now, if the purpose, however, is only to abduct her with lewd designs... So, there is already a
consummated crime of forcible abduction. But later on she was brought somewhere and then later on
raped, then the crime is forcible abduction with rape. It will be a complex crime because it is not evident
from the very beginning if the intent was to lie down. So if the forcible abduction is already committed and
then later on brought on another place and then raped, then the crime is forcible abduction with rape. It
was in the case of People vs. Desiree Garcia, its a 2003 case. Now, if a woman is raped three times,
whats the crime committed? On a crime of forcible abduction with rape, the woman was rape three times.
There will be three crimes committed. One is the crime of forcible abduction with rape, the succeeding
rape should be treated as 2 separate crimes of rape. The first rape will be complexed with forcible
abduction. The other 2 rapes will be separate crimes. Because it is only the first rape where forcible
abduction was committed in order to commit another crime.

Now, supposing the woman was raped twice under kidnapping and serious illegal detention. It was not
evident from the very beginning as to the purpose of the offender but she was kept, they deprived of her
liberty. While deprived of her liberty, the woman was raped twice. How many crimes are committed? Only
one crime. Kidnapping and serious illegal detention with rape. Why? Because that is a special complex
crime. If it is a special complex crime, regardless of the number of rapes, it is only one crime an
indivisible crime. But because 342 is not a special complex crime, it is a complex crime under Article 48,
then the succeeding rape shall be treated as separate for the crimes of rape. Like consented abduction, it

4D 2007 164
is the same as the victim is less than 18 or more than 12, consents to the abduction, the woman is
physically a virgin. I mean, she has good reputation, that is consented abduction.

Article 344 Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of
lasciviousness

Now, 344, 345 and 346. Probably we can read that together. What is important in 344, 'yung second, third
and the last paragraph. Now, you will find out that in the first paragraph, 'yung adultery at saka
concubinage, these are private crimes. It can be a subject matter of pardon. You can forgive. But it
cannot be extinguished by reason of marriage because in adultery and concubinage, married yung mga
yun. So, the effect of marriage is not an issue in adultery or concubinage, it is the pardon. Because that is
a private crime under Article 344 in relation to your Article 23 of the Revised Penal Code, that a private
crime, pardoned by the private offended party, can extinguish criminal liability for those crimes in 344.

Now, you read 344. Dun sa first part, first sentence, adultery and concubinage. That cannot be
extinguished by marriage because the offenders there are already married. On the second part,
nakalagay dun, what can be extinguished by marriage? Abduction, acts of lasciviousness and seduction,
and rape. But rape is no longer included. Rape is not supposed to be included in 344 because rape is no
longer a private crime. But what is the effect? In other words, if it is acts of lasciviousness, abduction,
seduction and the accused married the victim, then it will already extinguish the criminal liability including
the accomplices and accessories. Nakalagay sa last part of 344, including the accomplices and the
accessories. Now, that will now make a big problem. Why?

So, if in a crime of act lasciviousness, if there is an accomplice or accessory, and the accused is
pardoned by the private offended party, then the liability of the accomplices and accessories are likewise
extinguished. But supposing in the crime of rape, the rapist was married to the private complainant. They
got married but there are also accomplices and accessories or a charge because probably one left the
room and so on. So, there are accomplices and accessories. If the private offended party now pardons
the accused by marriage in other words, the accused gets married with the private complainant. What
will happen now with the accomplices and accessories? Will their liability also be extinguished? Because
under Article 344, the marriage of the private offended party and the accused in the crime of acts of
lasciviousness, seduction and abduction, the liabilities can be extinguished, which will include the liability
of accomplices and accessories. Paano 'yung rape? Rape is no longer found in 344.

Now, the law that will now cover the crime of rape will be Article 266-C of Republic Act 8353. Nakalagay
dun sa 266-C under the first part, marriage by the accused and the private offended party extinguished
'yung criminal liability under the first paragraph. The second paragraph of 266-C is a pardon by the wife.
That means marital rape. So, ang pardon ng private offended party, in so far as crime of rape is
concerned, is no longer 344 because 344 pertains to a private crime. And rape is no longer a private
crime. It is now found in Article 266-C. Will the marriage of the accused and the private offended party in
the crime of rape exonerate the accomplices and accessories? Will the extinction of the liability inure to
the benefit of the accomplices and accessories? No. They will be liable if it is a crime of rape because it is
now found in 266-C, crimes against persons. The pardon under 344 which also exonerates accomplices
and accessories is not carried over by 266-C. It only refers to a pardon by the wife and marriage of the
accused and the private offended party. It does not include the accessories or the accomplices.

Article 345 Civil Liability of Persons Guilty of Crimes Against Chastity

Now, 345 would be the effects of crime of rape, acknowledging of the child, and so on. So you just read
345. 'Yung 345, ano ang dapat gawin? You have to acknowledge the child. It's your child to support. But
you all heard, what is the decision of Supreme Court? You have now to prove that the date of conception
is consistent with the conception of the child. Hindi mahirap, madali lang yan. Bakit 'yung date of
conception should jive with the conception of the child? Eh kung may korposrasyon 'yun? In other words,
the girl has a boyfriend and probably they engaged in sexual intercourse as boyfriends and girlfriends,
and then the woman was raped by Mr. B. And then the woman gave birth. Almost the same. Dapat DNA
na lang. Subject her to DNA. Subject the child to DNA.

4D 2007 165
Article 346 Liability of Ascendants, Guardians, Teachers, or Other Persons Entrusted with the Custody of
the Offended Party

Then 346, what is important in 346 is the first part, liability of curators, teachers, guardians, ascendants in
the crime of rape. If the guardians, or the teachers, or the curators, or parents, or custodians of a victim of
a crime of rape are charged as accomplices in other words, they participated prior or simultaneous, but
their participation is not indispensable in the crime of rape they are therefore liable as accomplices.
Their penalty shall be that of a principal under express provision of 346. I think that's the only law where
the law recognizes that the offender is an accomplice, but the penalty is a principal, the penalty of a
principal, in Article 346. Matindi yan.

Articles 349-352

Now, bigamy, illegal marriages, I think you studied your illegal marriages in your Civil Law. A person who
is not authorized to solemnize a marriage is liable. A widowed woman is not supposed to marry within the
prescribed periods. Repeated marriages, 'yung within 300 days after your husband died. If you get
married within the 300-day period, the marriage is valid, but you are criminally liable. This is what we find
in this chapter.

Now in bigamy, you read the case of Manuel vs. People. This is a new doctrine because of the
amendment in your Civil Code. Kasi ang bigamy, you marry for the second time while the first marriage is
still subsisting, without the first marriage being declared void or without the husband being declared as
presumed dead.

Now, supposing the man got married. The husband has been absent for 20 years. No way to verify. In
other words, nobody knows that he is still alive. Ang nakakaalam lang 'yung lalaki. That's what happened
in Manuel. So after 20 years, the wife got married. Then after that, all of a sudden, the husband
appeared. So, she was charged with bigamy and then the woman put up the defense that under the Civil
Code, under the old law, wherein when you go to war, there is presumption of death, seven years or more
than seven years. You go to war, may presumption of death. But the problem with that woman, the
married woman, she did not go to court and ask the court to declare the husband as presumed dead.

Now, one of the defenses in bigamy is good faith. The best defense in bigamy is good faith. In other
words, you got married for the second time. What is your defense if the woman appears? Suddenly, the
former spouse appears. Ano ang defense mo? Good faith, hindi ba? How do you prove good faith? You
prove good faith by availing of the requirements of the law. You have to get a declaration of presumptive
death. So, if you believe that the first marriage is void or voidable, what are you supposed to do? You file.
You go to court and then have the first marriage declared as void or voidable. Because under the law
here, you also have to go to court and ask a declaration that the marriage is void. Hindi ba under the
present law? Oo, kina-kailangan yun, may declaration.

So therefore, if you got married, and then you have a judicial declaration that the marriage is voidable or
void, then you cannot be liable for bigamy, because you acted in good faith. Now, your husband has been
absent for 20 years. You got married, and then your husband appears. What is your defense that the
marriage is not bigamous? Ano ang defense mo? Of course, your defense should be good faith. How will
you prove now that you acted in good faith? Can you just go to the court and say, "Sir, my husband has
been absent for more than 20 years, and therefore I can marry?" That's not in good faith. You have to get
a declaration of presumptive death. That's required by law. So, sabi ng Supreme Court sa Manuel vs.
People, it was under the new Civil Code that there is a requirement that you have to go to get a judicial
declaration of presumptive death. If you do not get one, even if your husband has been absent for more
than 20 years, you did not act in good faith, and therefore liable for the crime of bigamy.

Na-convict ng bigamy. Now understood lang kasi noon, although that's what the law says under your Civil
Code. Will that amendment in the Civil Code affect the crime of bigamy? Hindi naman sinasabi sa crime
of bigamy. Ang sinasabi lang nyan, judicial declaration of presumption of death. Ang interpretation ng
Supreme Court, because under the old law, hindi kina-kailangan ng presumption of death. So, hindi kina-

4D 2007 166
kailanganan ng presumption of death under the old law, then that should continue. Pero sabi ng Supreme
Court, "Hindi. Under the new law, kina-kailangan na." So, she was convicted of the crime of bigamy,
although the husband has been absent for more than 20 years. So, mabigat.

Libel

Then we go to libel. Anong importante sa libel?
1) Identification. The victim must be identified with certainty in a crime of libel. Hindi pwedeng, "Hoy, yung
class D. Meron isang estudyante dyan, panget, babaero yan, tatrantado yan, magnanakaw, madaming
mga babae yan." Walang libel yun because it cannot be identified. It may be Mr. Dykimching. It can be
Mr. Puno. Yun ang ibig-sabihin. So, in a crime of libel, that is the first one. There is no need to mention
the name in a crime of libel. What is only important is that based from those printed or published, you can
determine who is the main person mentioned there. Kagaya kung sa atin, pag sinabi, "Hoy, yung isang
justice dun magnanakaw," then you identified him. Pinakamatanda, nagsasalamin, lahat-lahat, he can be
identified. Matanda, hindi naman ako matanda. Lahat-lahat ng description pointing to that. That is
sufficient identification.

2) It must be imputation of a wrongdoing or a crime or even if it's not a crime or wrongdoing vice or
defect that will defame or that will besmirch the honor or reputation even to blacken the memory of a dead
person. So, dalawa 'yan. Imputation of a crime and the other one is vice or defect.

What you will have to determine is that there are two kinds of malice in the crime of libel. One is malice in
law, which is always presumed. What does that mean? It is always presumed. If you publish a libelous
article and it appears that the invitations are libelous, there is a presumption of malice. But that cannot
make the offender criminally liable of the crime of libel because he still has to prove the other malice,
which is malice in fact. And what is malice in fact? That he was ill motivated. That there is an act of crime
against the person. Nag-away sila. Ganun ha? Ganun. The one that is more important is malice in fact. If
you cannot prove malice in fact, then there is no crime of libel, if it's only malice in law.

What is the other thing? You should memorize 354. What are the privileged communications? What do
you mean by privileged communication? In a privileged communication, even if there is malice in law, if
you are covered by privileged communications, there is no crime committed. And the privileged
communication would either be absolute or qualified. 'Yung absolute, kahit anong pinag-dadaldal nila,
kahit may sinabi ka na, "Ikaw ang pinaka-masamang tao sa mundo." Walang libel yun. 'Yung mga
speeches ng congressman, senator. The absolute privileged communication is found in Paragraph 2 of
Article 354. Fair reporting of judicial, executive, legislative proceedings. Fair reporting, ha. What does that
mean? There is a trial ongoing in the Sandiganbayan about the former president. Pag ni-rereport mo
anong nangyayari convicted sya, plunder, ganito walang libel 'yun. Why? Because that is fair
reporting of a judicial proceeding. What is happening in Congress? You reported what's happening in the
investigation by the Senate Blue Ribbon Committee. Kahit ano o sinong itinuturo dun, babae yan, babae
ni Abalos, kung anong sinabi dun, absolute yan, because that is fair reporting. As long as you do not
make conclusions or any remarks, absolute 'yun. Or somebody delivered a privilege speech by a senator,
Congress, whatever he says, kahit na pinaka-masama ang sinabi nya, walang libel yun. That is absolute,
which is different from a privilege, which is not absolute or qualified under the first paragraph.

Yung under the first paragraph that is a privileged communication wherein it applies when there is a
lawful duty or a moral duty or exercise of a legal right. Example, 'yung mga prediction sa courtroom. You
are charged with a crime of let's say, theft, and then you submitted your counter affidavit. You said, "O,
ikaw magnanakaw." That's privileged communication because that is exercise of the right. But that
privileged communication under Paragraph 1 can be waived. Like what? It's a case in 2006. What
happened there is that, may kaso ang association against a lawyer. The members of the association lost
in that case. So, that is supposed to be covered by the privileged communication under Paragraph 1
because it is an exercise of a legal right. It's your legal right to question. Ang ginawa ng losing party, he
wrote a letter to Atty. Pieras. I don't think that is the Jose Pieras that I read in an obituary. Pero nakalagay
dun, Atty. Jose Pieras. Baka sya 'yun, a. So what the accused did was to write a letter to Atty. Pieras. He
placed it in an envelope. Ang nilagay dun, "Atty. Pieras, Gago. You are not a good lawyer." Sabi dun,"

4D 2007 167
Your English is carabao, inutil." Ang daming sinabi dun. Lahat ng adjectives. Magnanakaw, tarantado,
lahat-lahat. And then on the last part, he signed in the name of Sarah.

Now, the problem is that that is a privileged communication because that's what he feels about the
services that he received. But the problem is that he put it inside the envelope. If that letter was sealed
and for him only to write, there is no element of publication. Because in publication, there must be
somebody who should read the article.

So, if nobody read it and then Mr. Pieras read it, the privileged communication still applies. Why?
Because it is only between the two. But you know why the writer became liable? The writer put copy
furnished. Copy furnished, iba-ibang parties dun. Sabi ng Supreme Court, you waived the privileged
communication and he is therefore liable because that is not absolute communication that is a qualifying
privilege.

Now, the other one is the case of Soliven and Borjal where they were convicted by the RTC, and
acquitted by the Supreme Court. Ang question dun is, whether that privileged communication under 354
extends to columnists. Yung columnist, hindi fair reporting 'yan. Ang fair reporting of proceedings in
executive, legislative, and judicial. When a writer writes a column and then he starts maligning persons in
the column, actually that writings are not covered by 354. Walang nakalagay sa 354. Hindi fair reporting
yan because you are not reporting of a proceeding. You are actually making your opinions. Question:
Can you be liable for a crime of libel? Ang sinabi ng Supreme Court dun, you can invoke privileged
communication but not under 354. Inextend ng Supreme Court. You can still invoke privileged
communication under the freedom of speech in the Constitution. So, sabi ng Supreme Court that is the
best privileged communication. That is the greatest privileged communication. Ang sabi ko, kung ganun
pala yung intention ng Revised Penal Code, eh dapat ini-include dun eh, wala na dun eh. But there are
two conditions there. You can invoke privileged communication or the constitutional provision on freedom
of speech when:

1. The statements are addressed against public officers.
2. The columns are based on established facts and circumstances.

In order words, there should be basis of making those writings and those writings should be against
public officials because if the writings are against private individual then that decision may not apply.
Why? Because there is a higher degree of tolerance in cases of these writings in so far as government
officials are concerned. In fact those are all, I think, is basically yung proof of truth in a crime of libel. In
proof of truth in a crime of libel, you can put up as a defense proof of truth in the crime of libel. But the
degree of truth as a defense will differ if the victim is a government official or a private individual. Pag
government official, when it is imputation of crime, the degree of tolerance is higher than the private
individual. You do not need to prove truth. Kasi imputation of a crime, that can be defended by saying that
he was charged in a court, that is sufficient. You cannot be liable. But when you impute a crime
committed against a private individual, a proof of truth is very hard to prove then therefore you may be
liable for libel, unlike when you are the government official. In other words, pag government official kasi,
kawawa ang government official. Mas mahaba ang pasensiya ng batas kasi maramingkasi government
official ka eh.

And then the other one that you will have to remember also in the crime of libel is that when the
appearances when you speak of libel it is not only in writing that is covered by the libel. It may also
include appearances in any radio programs or television, audio tape or orally. So, sa question ng bar
noon, supposing I uttered the powerful statement in a radio program and that was done orally, what is the
crime committed? I was interviewed in the radio program and television program, and then I said, "Mr.
Cais, magnanakaw, babaero, tarantado, gago." Lahat na sinabi mo. Question: Is that a crime of libel or
oral defamation? Because in oral defamation it is done orally. That is a crime of libel, not oral defamation
by express provision of law.

Now, also in oral defamation, there must be a witness. The same here, that there must be a statement,
imputation of a vice or a crime, the same. The only difference is that 'pag ikaw anuhin mo si Mr. Zosa,

4D 2007 168
frontal na inano mo yun ang oral defamation. But if I slap him in the face in the front of others, that is a
crime of slander by deed.

So, in other words if there is no publication in a crime of libel, no witnesses in oral defamation, no
witnesses in slander by deed, the crime is not libel, the crime is not oral defamation, it will be another
crime because you cannot defame the honor of another if nobody read it. How can there be imputation of
a crime made against the other in order to besmirch his honor kung wala naman nakabasa, wala naman
nakakita. So, that's the number one element, there must be publication or witnesses. Now, if there are no
witnesses in the slander by deed, what is the crime? It will depend. If there is an injury, then ill treatment.
If there is none, it will become unjust vexation.

Now, in oral defamation, if there are no witnesses then he will be liable for the crime of what? Under
intriguing against honor, 364. Even the libel, nobody read it but what you had defamed intrigued the honor
of somebody else, then that is intriguing against honor under Article 364.

Lastly, who has jurisdiction to try libel cases or what's the proper venue in libel cases? Tatlo yan. It will
depend on who is the private complainant. If the complainant is a private individual then it would be on
the place where the libelous materials was first printed and published, or at the residence of the
complainant.

Now, if it is a government official then the rule is that it should be in the place where it was first printed or
published, and number 2, where he was holding his office. If he was holding his office in Manila, then it
may be in Manila. But if he is holding an office in any place in the Philippines, then there the place.
Dalawa ang rules dyan. In depend on private individual or a public official. Marami ng cases ang Supreme
Court nyan eh. Maraming nagkakamali.

Merong isang professor dito noon who was charged with a crime of libel by a law student. I do not know if
you have heard about that. Si Catherine Yu? So, he was charged. The girl is from Bacolod City and then
the girl filed the case in the Bacolod for a crime of libel. Then the professor who was teaching remedial
law in UP and Ateneo filed a case of certiorari in the Court of Appeals. He said that there was wrong
venue because allegedly the libelous materials were first written and published here in Manila. But the
private complainant chooses to file the case in Bacolod City, went to the Court of Appeals, syempre talo
siya because since she is a private individual, it's either the place where the article is first published or
printed or where the private complainant residences. Takot siya dun sa Bacolod mai-file eh. So, ayaw
niya roon, doon nag-file. Then later on, he lost in the case then went to the Supreme Court to ask for a
change of the venue under the constitution but his life was not in danger. So, anong change of venue? Di
ba sa murder cases, kidnapping, yung mga heinous crimes. Eh, ano ang libel dun? But later on, I think
they already settled that. I think he gave a public apology in writing yata. You know that? Nag public
apology. But do you know about the girl, because they're rich family, she went to Harvard after the bar. A
good friend of mine. Ako good friend ko yung babae. The boyfriend is a son of the judge so I know the
family. But this case went to my wife and he lost there. Anyway, tapos na.

RA 4200 Anti Wire-Tapping Law

What about wire tapping for R.A. 4200? What are you supposed to do in wire tapping? Yung wire tapping
only covers those that are included the law. What is prohibited is the use of a gadget in order to hear the
conversation. Question: You use a telephone. You keep track the conversation of two persons through
the use of an extension line. Nakinig ka through extension lines. Is that covered? That is already decided
by the Supreme Court. Not covered.

Supposing there are two persons who are conversing or members of the board of directors. All of the
members of the board of directors brought a tape recorder and then recorded the conversation of those
attending the meeting without the knowledge of the other board members. He was the only one who knew
because he was the one who brought a tape recorder. The other board members did not know and then
recorded the conversation. Is that covered by 4200? Yes, that is covered. That is now a new doctrine.
Unlike before, you can only be covered when an outside recorded a private conversation without the

4D 2007 169
knowledge of those involved in the conversation. But under the present doctrine now, even those who are
involved in the private conversation, if they recorded the private conversation without the knowledge of
the others, liable under 4200.

What about cell phones? Is cell phone included in 4200? I was listening in the argument in the Supreme
Court about that Garci tape, and then there was one justice who gave the opinion that is not covered
because cell phone is not included in 4200. It is not included in the similar device.

Cell phone is included. Why? Because if the conversation through the cell phone is recorded by a tape
recorder, it is not the cell phone that is the subject matter, it is the recorder eh.

So, if you record a conversation between two or more persons without a cell phone, hindi ba covered
yun? Now, if therefore you record a conversation between two persons through telephone, hindi ba
covered yun? Now, if you record a conversation through cell phones, you use a tape recorder. Yung tape
recorder ang covered. Yung cell phone is not the one covered. The cell phone now is the means of
communication. What is prohibited is the eavesdropping on a conversation through the use of any
gadget. Kaya covered yun, ang cell phone.

Sir, what if what was used was the recording feature of the cell phone?

You are included there because that is now included in the term. With any similar device is included. But
under 4200 it may be allowed or authorized, the wire tapping, if you get a court order. There must be a
court order. But only limited to those crimes enumerated in 4200. Hindi naman lahat ng crimes eh, yung
mga heinous crimes lang, kidnapping, murder, rape, included yan. Dangerous drugs, illegal possession of
fire arms, or other heinous crimes covered yan. You can get an authority.

However, if you get an authority under 4200, all those items that are confiscated by the seizing officers
should be surrendered to the court. It cannot be opened until a case is filed. Hindi gaya ng search
warrant, di ba search warrant. The items confiscated will now be in the possession of the arresting
officers if there is consent. Sa 4200, hindi. Sealed lahat yan pati tape. Nobody is allowed to open until a
case is filed and until it is used. Ganun ang 4200 hindi basta-basta.

Ang problema dun, there was a case involving me. Victor Corpus applied for authority to wiretap a cell
phone. So, that's the height of the Las Palmas kidnapping. Yung dalawang mag-asawa. He applied
before me then he wanted that I will allow the wiretapping of cell phone conversations between and
among Abu Sabaya and the other Abu Sayaf in Mindanao. And then I asked him, how do you wiretap cell
phones? Then sabi niya, they will wiretap it through the cell sites, kasi may cell sites. Alam mo naman si
Victor Corpus, very imposing. Nobody talked to me, but at the end of the day I denied him. I denied his
request kaya galit na galit sa akin' yan because under 4200, the RTC Judge has only jurisdiction to issue
authority to wiretap and enforce only within his territorial jurisdiction. So, my argument is that a cell phone
is mobile. You can go anywhere, so I did not have any jurisdiction. Because of that, he did not know it. It
was Justice Bersamin who called me because he was on other side. All the lawyers of Smart, I think, or
Globe, they were waiting outside waiting for my resolution. Had I granted it, there's potentially disaster in
their business because every conversation could be heard there. Hindi ko naman naisip yun, sabi ko
lang,"Denied. I dont have jurisdiction." Nagalit pa sa akin. But later on, he went to apply in Zamboanga
City, it was also denied because of my reason kasi that's the problem if you authorize. In cell phone kasi
mobile yan eh and the jurisdiction of the judge that issued this can only be enforced within territorial
jurisdiction. It cannot be enforced outside of your territorial jurisdiction. So, I became friends with Globe
and Smart, but now they are my enemies. Bakit? Nago-over charge. So, Sun nalang kayo.

Article 365 Imprudence and Negligence

In 365, Reckless Imprudence. Be careful with a decision of the Supreme Court in 2006. Di ba kung
reckless imprudence, I told you, the act must be lawful. But you only neglect to perform the required
negligence of the good father of a family. There is a case in 2006, attended by Justice Chico-Nazario
where there was a quarrel among boys. And after the quarrel, he threw a stone at the back of the boy, sa

4D 2007 170
likod. Without the intention of real injury. There was no external injury, but all of the sudden, the boy
suffered from fever. He was suffering from fever. So, he was brought to the hospital. They traced the
cause of the illness of the boy. The spinal column was affected by the throwing of a stone. Naapektohan
ang spinal column niya and later on the boy died. So the question is what is the liability of the one who
threw the stone? Sabi ng Supreme Court, reckless imprudence. Hindi puwedeng reckless imprudence
yun. Why? Is throwing a stone lawful? It should have a different if he was playing a joke because there
was no intent. But you know, he was not playing joke, he threw a stone. The act was unlawful from the
very beginning. He should then be liable for intentional crime of homicide under the principle enunciated
in Paragraph 1 of Article 4 that you are liable for the penalty although the act done is different from what
he really intended to commit and therefore entitled to a mitigating circumstance of lack of intention to
commit. So, he maybe wrong. But sabi ng Supreme Court reckless imprudence.

Now, the other thing in 365 is that, 365 is considered as a complex crime under the case of the Isabelita
Reodica versus Court of Appeals. So, for example you bumped a vehicle. One died, one suffered slight
physical injuries. The vehicle that you bumped suffered total damage. So there are three effects of your
reckless imprudence: slight physical injury, homicide, and damage to property. What is the crime
committed? Is there one crime or there are two crimes?

Now, probably in your study of criminal law 1 that is only one crime because what is punished in reckless
imprudence is not the result of recklessness. What is punished is not the result. What is punished is the
act of recklessness. So, therefore, you cannot separate one from the other because the injuries, or the
death, or the damage to property came from one act of reckless imprudence and therefore that is one
crime. Ang sabi ng Supreme Court sa Isabelita Reodica versus Court of Appeals, the Supreme Court split
into two crimes under the principle of complex crime. Why?
Why did they split?

Slight physical injury is a light felony because that is punished by aresto menor or 200-peso fine. Slight
physical injury is a light felony. Homicide is a less grave felony or grave felony. Damage to property
likewise is less grave felony because of total damage of vehicle. So, therefore, you have one grave
felony, the other one is less grave felony and light felony. Because it is a complex crime under Article 48,
ang sabi ng Supreme Court, there are two crimes committed. One will be reckless imprudence resulting in
homicide and causing damage to property. That is one crime. And the other is reckless imprudence
resulting in slight physical injuries. Why? Because slight physical injury cannot be complex with grave or
less grave felonies under Article 48. That's what they did in Isabelita Reodica versus Court of Appeals.

As I always tell my students, when the crime is reckless imprudence, start the denomination of the crime
with reckless imprudence. Do not start it with homicide. Pag sinabi niya homicide through reckless
imprudence, it's as if what is punished with the homicide. Tingnan mo yung pagkakaiba? Reckless
imprudence resulting in homicide at saka homicide through reckless imprudence, malaking pagkakaiba
niyan. When it is reckless imprudence, then denominate the crime as: Start first with reckless
imprudence resulting in homicide, reckless imprudence resulting in physical injuries, reckless imprudence
causing damage to property. That's the way to denominate it.

Crim Law Review Book 2 Justice Peralta Transcript

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Crim Law Review Book 2 Justice Peralta Transcript

Enviado por

Direitos autorais:

Formatos disponíveis

Revised Penal Code Book 2 Transcript of Justice Peralta Lectures

Você também pode gostar