Crim

CRIM II USC Law 410HPersonal notes of

Atty. Virginia Palanca-Santiago

Criminal Law II

Criminal Law – branch of public law which defines crimes, treats of their nature and provides for their punishment.

Crime – is the commission or omission by a person having capacity, of any act, which is either prohibited or compelled by law and the commission and omission of which is punishable by a proceeding brought in the name of the government whose law has been violated.

Book II – Group by titles

Title I – Crimes Against National Security & Laws of the Nations.

Title II – Crimes Against the Fundamental Laws of the State.

Title III – Crimes Against Public Order

Title IV-Crimes Against Public Interest

Title V- Crimes Relative To Opium and Other Prohibited Drugs (under Special laws)

Title VI – Crimes Against Public Morals

Title VII – Crimes Committed by Public Officers

Title VIII – Crimes Against Persons

Title IX – Crimes Against Personal Liberty and Security

Title X- Crimes Against Property

Title XI – Crimes Against Chastity

Title XII – Crimes Against The Civil Status of Persons

Title XIII – Crimes Against Honor

Title XIV –Quasi Offenses

Title XV- Final Provisions

ARTICLE 114-TREASON

TREASON – is a breach of allegiance, which is an obligation of fidelity and obedience one owes to the government or sovereign under which he lives, in return for the protection he receives (Laurel vs. Misa- 77 Phil. 856).

Persons liable:

1) Filipino citizens – owe permanent allegiance.

2) Resident aliens – owe temporary allegiance.

Modes of committing Treason:

1) Levying war- means an actual assemblage of persons for purposes of

executing a treasonable act. A formal declaration of war is not necessary. Actual hostilities determine the date of the commencement of war (US vs. Lagnason – 3 Phil. 495).

2) Adhering to the enemy giving them aid or comfort.



Adherence to the enemies – means that a citizen intellectually or emotionally favors the enemy and harbors sympathies or convictions disloyal to his country’s policy or interest (Cramer vs. US - 65 SCRA 918). Adherence alone without aid and comfort does not constitute treason, altho’ it may be inferred from the overt acts of treason committed

(Pp. vs. Icaro- 89 Phil. 12; Pp. vs. Bernardino- 93 Phil. 640).

“ Aid and comfort” - means an act which strengthens or tends to strengthen the enemy of the government in the conduct of war against the govt. or an act which weakens or tends to weaken the power of the govt. or the country to resist or attack the enemies of the govt. or of the country. An act of giving aid and comfort partakes of a deed of physical activity as opposed to mental operation and must be intentional. The amount or degree of said act or comfort given to the enemy as well as the gravity of the separate and distinct acts of treason committed rather than the circumstances, aggravating or mitigating, attending its commission, determine the degree of the penalty to be imposed (Pp. vs. Cana- 87 Phil. 577). Mere expression of opinion does not constitute treason.

Evidence required for the conviction in Treason: a) testimony of at least two witnesses of the same overt act; and b) confession of guilt in open court.

As to adherence to enemy – does not need at least two witnesses. Such may be proved by the testimony of one

witness or from the nature of the act itself, or from the circumstances surrounding the act.

Overt acts of giving aid and comfort must be proved by the testimony of at least two witnesses (Pp. vs. Adriano – 44 O.G. 4300).

As to confession – it must be done in open court. This excludes extra- judicial admission. (U.S. vs. Magtibay – 2 Phil. 705).

Furnishing women to the enemy does not constitute treason because such does not directly and materially tend to improve the war efforts of the enemy (Pp. vs. Perez- 64 O.G 4886) .

But joining the Japanese soldiers in arresting and torturing suspected guerrillas (Pp. vs. Santos- 87 Phil. 731); being an informer (Pp. vs. Fernando – 79 Phil 719);

or service in the Japanese Army (Pp. vs. Munoz, et al.- 79 Phil. 102) – constitute the crime of Treason.

There is no such defense as suspended allegiance.

Is there a complex crime of Treason with Murder – No, because such is the overt act of aid and comfort and is therefore inseparable from treason itself, nor can it be considered a separate crime (Pp. vs. Hernandez – 52 O.G. 5506).

Is Treason a continuous crime? – Yes – it may be committed by executing either singly or several intentional overt acts. All overt acts he had done or might have



been done for that purpose constitute a single offense (Guinto vs. Veluz - 44 O.G. 909).

Treason is a war crime . It cannot be committed in time of peace. Treasonable acts may actually be committed during peace time, but there are no traitors until war has started ( Laurel vs. Misa- supra).

Treason may be committed in the Philippines or elsewhere.

Penalty

Filipino offenders – Reclusion Perpetua to Death or a fine not to exceed P100,000 pesos.

Resident Aliens – Reclusion Temporal to Death and a fine not to exceed P100,000 pesos. (As amended by RA 7659).

ARTICLE 115- Conspiracy & Proposal to Commit Treason

Article 8 – Conspiracy to commit felony – when two or more persons come to an agreement concerning the commission of a felony and decided to commit it.

Proposal to commit a felony – when the person who has decided to commit a felony proposes its execution to some other persons.

Conspiracy to commit a crime is not a crime –exceptions: a) Conspiracy to

commit Treason; b) Conspiracy to commit Rebellion, insu., or coup d’etat and c) Conspiracy to commit Sedition.

Proposal to commit a felony is not also a crime except:

1) Proposal to commit Treason

2) Proposal to commit Rebellion, Coup d’etat or insu.

Conspiracy must be proved by clear and convincing evidence.

Penalty:

Conspiracy to commit Treason – Prision Mayor and a fine not exceeding P10,000;

Proposal to commit Treason – Prision Correccional and a fine not exceeding P5,000.

ARTICLE 116- MISPRISION OF TREASON

- It is the failure of the citizen to report as soon as possible a conspiracy, which comes to his knowledge, against the govt. But there must be a war in which the Phil. Govt. is a party.

Possible offender is a Filipino ( not a foreigner).

Elements:

1) Offender owes allegiance to the Phil. Govt.;

2) Filipino



3) Has knowledge of a conspiracy to commit Treason against said govt.; &

4) Conceals or fails to disclose the same to the authorities in which he resides.

The offender is a principal of the crime of Misprision of Treason, but he is punished as an Accessory to the crime of Treason.

Under Art. 20 relatives who are accessories are exempt from criminal liability. Under this article, this exemption does not apply because of three ( 3 ) reasons:

1) this Article is of special application, while Art.20 is of a gen. application.

2) security of the state is more paramount than mere relationship; and

3) the offender commits the distinct crime of Misprision of Treason w/c is a separate and distinct crime.

Article 117-ESPIONAGE

This crime is not conditioned by the citizenship of the offender and is an offense against national security ( Santos vs. Misa – 70 Phil. 415).

Elements of act no.1:

1) The offender without any authority enters a warship, fort, naval or military establishment or reservation; and

2) He obtains information, plans, photographs, or other data of a confidential nature relative to the defense of the Philippines.

Elements of act no. 2:

1) The offender is a public officer ;

2) He has in his possession article, data, or information which are confidential relative to the defense of the Phil. Govt.;

3) He discloses their contents to a representative of a foreign nation.

In the first act, it is not necessary that the offender succeeds in obtaining the data.

This provision is amended under CA 616 (seven acts ).

Distinguish Treason from Espionage:

1) Treason is a war crime; Espionage can be committed in time of peace or war;

2) Treason is committed by person

who owes allegiance to a country; while Espionage can be committed by a foreigner or Filipino.

3) Ways of committing the crime are distinct.

Penalty

- First act – Prision Correccional

- Second act – higher by next degree bec. the offender is a pub.officer.



Article 118 – Inciting To War or Giving Motives for Reprisals

Offenders: any person (private individual or public officer)

Elements:

1) The offender commits unlawful or unauthorized acts; and

2) Said acts provoke or give occasion for a war involving or liable to involve the Phils. or expose Filipinos to reprisals on their persons or property.

This is committed in time of peace.

Penalty – Prision Mayor – if the offender is a private individual; Reclusion Temporal, if the offender is a public officer.

ARTICLE 119 –Violation of Neutrality

This is committed in time of war.

Offenders: any person

Elements:

1) There is a war in which the Philippines is not involved;

2) Competent authorities have issued regulations to enforce neutrality; and

3) The offender violates any of said regulations.

Penalty – Prision Correccional

Article 120 – CORRESPONDENCE WITH HOSTILE COUNTRY –


Elements: 1) That there is a war in which the Philippines is involved;

2) That the offender shall have correspondence with an enemy country or territory occupies by enemy troops; and

3) That said correspondence is: a) prohibited by the govt. ( Prision Correccional); b) carried on ciphers or conventional signs (Prision Mayor); and

c) notice or information be given thereby

which might be useful to the enemy (Reclusion Temporal) or intended by the offender to aid the enemy (Reclusion Temporal to Death).

If the act is intended to aid the enemy, this is treasonable in nature, hence the penalty is severe as in Treason, but in proving it, the two-witness rule does not apply.

Article 121-Flight To Enemy’s Country


Elements: 1) Existence of war in which the Philippines is involved;

2) Offender owes allegiance to the Philippines.;

3) He attempts to flee to enemy country which is prohibited.

Mere attempt to flee is punishable.



This can be committed by a foreigner who owes temporary allegiance to the government.

Penalty – Arresto Mayor

Article 122 – PIRACY & MUTINY –

Piracy – is robbery or forcible depre-

dation in the high seas, without lawful authority and done w/ animo furandi and in the spirit & intention of universal hostility (People vs. Lol-lo- 43 Phil. 19). With the amendatory provisions of PD 532 & RA 7659 – Piracy & Mutiny now can be committed in Philippine waters.

Offenders: Any person – who is not a passenger or crew of the vessel.

The offenders are strangers to the vessel. The attack against the vessel comes from the outside but the seizure of the cargo takes place inside the vessel. Seizure may be committed by persons who smuggled themselves into the vessel for that purpose. Since they are not members of the crew nor passengers, they are

therefor “strangers .“

Pirates are in law hostis humani generis. Piracy is a crime not against any particular state but against all mankind.

Piracy knows no territorial limits, hence the offender can be tried in the place where he may be found or into which he may be carried. (Pp. vs. Lol-lo – supra).

Modes/manner of committing Piracy –

1) By attacking or seizing a vessel on the high seas or Philippine waters; and

2) By seizing the whole or part of the cargo or equipment of the vessel while on the high seas or Philippine waters or the personal belongings of its complement or passengers.

High seas – waters on the sea coast which are without low water mark, beyond the 12 nautical miles (Archipelagic Doctrine on the Laws of the Conference of the Sea).

Meaning of vessels – Sec. 2 (b) of PD 532- any watercraft, such as banca or raft or fishing boats.

In PD 532- piracy can be committed by a passenger or member of the complement of said vessel in Phil. waters. However, under the amendatory provision of RA 7659, it is specifically provided that the offender is a” person who is not a member of its complement nor a passenger of said vessel” – Being the latest amendment

the latter should prevail.

Piracy is committed whether the vessel is anchored or moving as long as it is committed aboard the vessel, because it can now be committed in Philippine waters.

MUTINY – is an unlawful resistance to a superior officer as the raising of commotions and disturbance on board a ship against the authority of its commander.

Distinction between Piracy & Mutiny:



1) P- attack from the vessel comes from the outside;

M- attack are from the inside;

2) P- there is intent to gain;

M – intent to gain is immaterial

Similarity – both are crimes under the Laws of the Nations.

ARTICLE 123- QUALIFIED PIRACY –

Modes of committing it:

1) Whenever the offenders have seized a vessel by boarding or firing upon the same;

2) Whenever the pirates have abandoned their victims without means of saving themselves; or

3) Whenever the crime is accompanied by murder, homicide, physical injuries or rape.

Is there a Qualified Mutiny? – Art. 123 – provides “ any of the crimes referred to in the preceding article”. Hence, it embraces not only piracy but also mutiny. So, there is such crime as Qualified Mutiny. However, as far as Qualified Mutiny is concerned, only pars. 2 & 3 will apply, because the offenders in par. 1 are outsiders.

The Murder, Homicide, Physical Injuries or Rape are special aggravating & as these accompanied the crime of Qualified Piracy/Mutiny- hence such cannot make the crime complex.

ARTICLE 124- ARBITRARY DETENTION – It is the deprivation by a public officer of the liberty of a person without any legal ground.

Public Officers

Any person, who by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Phil. Islands, or shall perform in said Govt. or in any of its branches public duties as an employee, agent or subordinate officials of any rank of class (Article 203- RPC).

Offenders: Public Officer or employee. He must be vested with the authority to detain or order the detention of persons accused of a crime. Exs. Policemen & other agents of the law, judges or mayors.

(if committed by a private individual – Illegal Detention).

But if a private individual conspired with public officers then they can be held liable for Arbitrary Detention. (Pp. vs. Camerino).

Acts: 1) He detains a person

2) Without legal grounds.



Legal grounds to detain a person:

1) commission of a crime

2) violent insanity or other ailment requiring confinement at the hospital.

In Arbitrary Detention, the detention at the very inception is unlawful because there is no warrant of arrest and there is no lawful cause as provided under the Rules of Court.

Rule 113, Sec. 5: Valid Warrantless Arrest:

1)When in his presence, the person has committed, is actually committing, or is attempting to commit an offense;

2) when an offense has just been committed that he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

3) when the person to be arrested is a prisoner who has escaped from penal establishment.

Pp. vs. Burgos – l44 SCRA 1

Pp. vs. Aminnudin- l63 SCRA 402

Pp.vs. Saycon – 236 SCRA 325

Pp. vs. Mengote – 210 SCRA 174

Pp vs. Tangliben – 184 SCRA 220

Pp. vs. Malmstedt – 198 SCRA 401

Pp.vs. Tonog- 205 SCRA -772

Rolito Go vs. CA – Feb. l992

Pp. vs. Gerente- 219 SCRA 756

Warrant of Arrest – is an order in writing issued in the name of the People of the Phils., signed by a judge and directed to a peace officer, commanding him to take into custody a person who may be bound to answer for the commission of a crime.

Either: 1) actual restraint

2) by his submission

No violence or unnecessary force shall be used.

Detention means deprivation or restraint of liberty.

Article 125-Delay In The Delivery of Detained Persons

To The Proper Judicial Authorities-

Offenders: Public Officer or employee

In this felony, the detention is legal but the public officer failed to deliver the detained persons to the proper judicial authorities

within the prescribed no. of hours: 12 hours for crimes punishable with light penalties; 18 hours for crimes punishable with correctional penalties and 36 hours for crimes punishable with afflictive or capital penalties (Executive Order 272).

This is a felony by omission.

If a private individual conspires with the public official, then he can be held liable under this law (applying the Camerino doctrine by analogy).



Judicial Authority: - means the courts of justice, or judges of the courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed an offense.

Delivery of a detained person consists in making a charge or filing a complaint against the prisoner with the proper court. It does not mean the physical delivery of the prisoner.

A detained person upon arrest should be informed of his rights under the Miranda Doctrine ( RA 7438).

Procedure: Sec. 7: Rule 112- Rules of Court:

When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. X x x x

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation, but he must sign a waiver of the provisions of Art. 125 of the RPC, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within 15 days from its inception.

If the filing of the complaint or information is done without preliminary investigation, the accused may, within 5

days from the time he learns of the filing of the information or complaint, may ask for a preliminary investigation with the same right to adduce evidence in his defense.

Preliminary Investigation- is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held liable for trial.

Purposes:

1) to determine if a crime has been committed:

2) to protect the accused from the inconvenience, expense and burden of defending himself;

3) to secure the innocent against a hasty, malicious and oppressive prosecution;

4) to protect the state from having to conduct useless and expensive trials.

REPUBLIC ACT NO. 7438-

- custodial investigation involves questioning initiated by law enforcement after a person is taken into custody or otherwise deprived of his freedom of action. When the suspect is taken into custody and the police carries out a process of interrogations that tends to elicit incriminating statements, the rule begins to operate ( Pp. vs. Tan – 91 SCAD).



Sanchez vs. Demetriou- 46 SCAD – en banc – application of actual force, manual touching of the body, physical restraint or formal declaration of arrest is not required. It is enough that there is intent. Custodial investigation includes “invitation”.

Rationale of Article 125- is intended to prevent any abuse resulting from confining a person without informing him of his offense and without permitting him to go on bail. Furthermore, it penalizes a public officer who shall detain a person for some legal grounds and shall fail to deliver the said person to the proper court within the period prescribed by law.

In Art. 125, the detention becomes arbitrary only when the time required for the delivery of prisoner to the judicial authority lapses.

The 12-18-36 hours do not run when the courts are not open to receive the complaint or information being filed.

ARTICLE 126- DELAYING RELEASE – This article contemplates petitions for the release of a detained person, e.g. habeas

corpus proceeding. The same penalties provided for in Article 124 shall be imposed upon any public officer or employee who delays for the period of time specified therein:

1) The performance of any judicial or executive order for the release of a prisoner or detention prisoner;

2) Unduly delays the service of the notice of such order to said prisoner; or

3) Delays the proceedings upon the petition for the liberation of such person.

(Possible offenders – Warden, process server or judge).

ARTICLE 127- EXPULSION –

1) Offenders – Public officer/employee

- not authorized by law;

2) Act: a) expel any person from the Phil. Island; or

b) compel such person to change his address.

This is a crime against constitutional rights of abode and changing the same under the Bill of Rights (Villavicencio vs.

Lukban- 39 Phil).

3) Penalty – Prision Correccional

Only the President of the Philippines in the exercise of his power of deportation and the courts after final judgment sentencing the accused to destierro or as a condition in his probation are authorized by law to expel or compel persons to change their abode. A Filipino citizen is not subject to expulsion.

ARTICLE 128-VIOLATION OF DOMICILE

1) Offenders:

1) Public officer

2) Employee- who are not authorized by any judicial order.



2) Acts:

a) enters any dwelling against the will of the owner;

b) searches papers or other effects found therein without the previous consent of the owner; and

c) having surreptitiously entered such dwelling, and being required to leave the premises, he refuses to do so.

The judicial order referred to is a Search Warrant- which is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.

Against the will – presupposes opposition or prohibition, by the owner, whether express or implied( when the door is locked).

If the entry is committed by a private person – Qualified Trespass To Dwelling.

Special aggravating circumstances: a) nighttime ; and b) if any papers or effects not constituting a crime be not returned immediately after the search.

When a person who admitted the public officer is one with sufficient discretion, the right to privacy is waived, hence, prohibition thereafter made can no longer constitute violation of domicile. Permission once given cannot be recalled anymore. When he is admitted

and he starts to search, the owner must stop him, otherwise permission is given.

Reason behind the law: Section 2, Art. III- Constitution – The right of the people to be secure against unreasonable searches and seizures of whatever nature for any purpose shall be inviolable.

Article 129- Search Warrant Maliciously Obtained & Abuse In

THE SERVICE OF THOSE LEGALLY OBTAINED –

1) Offenders:

1) Public officer

2) Employee

2) Acts:

a) procuring a search warrant without just cause; and

b) exceeding the authority or using unnecessary severity in executing a search warrant legally obtained.

Requisites for a Valid SW:

1) Application under oath;

2) Probable cause which must be determined by the Judge himself, by conducting searching questions and answers, in writing and under oath;

3) the probable cause must be in connection with one specific offense;



4) must particularly described the place to be searched and the persons and things to be seized;

5) the sworn statements and affidavits of the witnesses must be attached t the records (Prudente vs. Dayrit- l989)

The commission of any of these acts is independent of the liability for the commission of any other offenses: 1) Abuse in the service of SW; 2) Serious Physical Injuries (not complex crime- 2 crimes – 2 sep. penalties)

Penalty – AM max to PC min. + a fine not exceeding P1,000

Application will be filed :

1) any court within whose territorial jurisdiction a crime is committed;

2) for compelling reasons, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced; (But if a criminal action has already been filed, then the application shall be filed only in the court where the criminal action is pending)- Sec. 2 – Rule 126 – Revised Rules on Criminal Procedure as amended under Adm. Circular no. 13, Oct. 1, l985 and Adm. Circular no. 19, August 4, l987.

Sec. 5- Ibid- The judge must personally examine the applicant in the form of searching questions and answer, in writing and under oath.

Under oath – can be liable of Perjury.

Probable cause - such reasons supported by facts and circs. w/c will warrant a cautious man to believe that his actions and the means used are just and proper (Manalili vs. CA- 280 SCRA)

Personal property to be seized:

1) subject of the offense

2) stolen or embezzled and other proceeds or fruits of the offense;

3) used or intended to be used in the commission of the crime.

Specific place – no discretion for the searching officers, to avoid unreasonable search and seizure

The true test of sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such manner that perjury could be charged thereon and affiant be held for damages (Alvarez vs. CA – 64 Phil. 33).

An exception to the necessity of a search warrant – Warrantless search and seizure:

1) search incident to a lawful arrest;

2) search of a moving vehicle

(Bagista -214 SCRA 63)

3) consented search (Pp. vs.Kagui

Malasugui- 63 Phil. 221)

4) search of evidence in plain view



(Manipon,Jr. vs. Sandiganbayan – 143 SCRA 267)- come upon the object inadvertently & open to the eye;

5) viol. of Tariff and Customs Code, except in dwelling place ( Pp. vs. Lacerna- 86 SCAD 608)

6) search based on probable cause under extraordinary/exigent circumstances-

Exigent circumstance- added by Justice Puno- catch all category-Valmonte vs. Villa – 178 SCRA 211;Malmsted case; Tangliben.

Search in check point- between the inherent right of the State to protect its existence & promote public welfare & on indiv’s. right against warrantless search – former shall prevail.

7) Stop and frisk – Posadas vs. CA- l88 SCRA 288 & Valmonte vs. Villa -178 SCRA 211- flagrante delicto.

ARTICLE 130- SEARCHING DOMICILE WITHOUT WITNESSES

1)Offender

Public officer/employee armed with search warrant

2) Act: Search a domicile in the absence of :

a) person to be searched

b) member of his family

c) in their default, in the presence of two witnesses residing in the same

locality (sufficient age and discretion)- Sec. 8, Rule 126 Rev. Rules on Crim. Proc.

Distinction between Warrant of Arrest and Search Warrant:

1) WA – a case is already filed

SW – not necessarily

2) WA – served anytime of the day or night

SW – only during daytime (if served during nighttime- there must be a supporting affidavit of urgency;

3) WA – persons

SW – usually for things/items

4) WA – no lifetime (exc. when already served)

SW – valid only for 10 days

ARTICLE 131 – PROHIBITION, INTERRUPTION & DISSOLUTION OF PEACEFUL MEETINGS (PID)

l) Offenders:

1) Public officers

2) employees

ll) Acts:

1) without legal grounds, shall prohibit or interrupt the holding of a peaceful meeting or dissolve the same;

Elems:



1) meeting is peaceful- if not- official is duty bound to dissolve the same;

2) for legal purpose – otherwise – Art. 146 is committed- (Illegal Assembly)

3) officer is not a member thereof (stranger) – Pp. vs. Calera- 45 O.G. 2573- If not stranger – Art. 287- Unjust Vexation

If the meeting is legislative - - Art. 144- Pp. vs. Alipit – 44 Phil. 910

4) disturbs the same.

The right of the govt. to require permit for regulatory purposes has been upheld by the Supreme Court. The regulatory purpose covers the time and place where the assembly is to be held to safeguard the right of the public & protect them from inconvenience- Reyes vs. Bagatsing – 125 SCRA & Tanada vs. Bagatsing – Aug. 1984.

Meetings held by religious sect – not religious ceremonies – if dissolved – Art. 131 is violated and not Art. 132- Pp. vs. Reyes – July 2, l955 & Pp. vs. Mandoriao- 51 OG 4619.

The requiring of a permit shall only be regulatory – not to prevent peaceful assemblies. The Mayors possess reasonable discretion to determine public place – Navarro vs. Villegas – 31 SCRA 371.

(Ortega – does not agree to the opinion that if the mayor dictates the place – it is a violation of the law.

If in the beginning the assembly is peaceful, then later the participants became unruly – commit the crimes- Inciting to Sedition – meeting now can be dissolved . Permit is not a license to commit a crime.

Two criteria:

1) Dangerous Tendency Rule – applicable during time of national unrest- e.g. prevent coups;

2) Clear & Present Danger Rule – applicable in time of peace; stricter rule.

2) Shall hinder any person from joining any lawful association or from attending any of its meetings;

3) Shall prohibit or hinder any person from addressing any petition to the authorities for correction of abuses or redress of grievance. (no subversion law – RA 7736 – repealed RA 1700 – l992)

ARTICLE 132 – INTERRUPTION OF RELIGIOUS WORSHIP

I) Offenders: 1) Public officers

2) employees

II) Acts:

1)Prevent religious ceremonies

2) Disturbing the ceremonies or manifestation of any religion

III) Penalty –



PC- min period

- w/ threats /violence – PC

max.

Pp. vs. Mojica – Dec. 29, l955 – Priest was prevented from saying the mass.

Included in the religious services – activities in the house w/ 20 to 30 people ( prayer meetings – Couples for Christ). This refers to exercise of religious manifestation – not quasi-religious ceremonies- house blessings.

ARTICLE 133- OFFENDING RELIGIOUS FEELING –

1) Offenders:

1) Public officer/employee;

2) private individuals – this is the only crime against the Fundamental Laws of the State that can be committed by a private individual.

II) Acts:

1) Notoriously offensive to feelings of the faithful- Pp. vs. Baes – 68 Phil. 203- (ridicule rel. dogma)

2) performed in a place devoted to religious worship or during the celebration of a religious ceremony. – Baes cs. – causing a funeral held in accordance with the rites of a rel. sect to pass through the catholic church.

Pp. vs. Migallos – Aug. 5, l955- stoning a minister while in the act of preaching.

Whether the act is offensive notoriously – is to be judged by the feelings of the followers and not by the offenders.

Other acts may only consist: Unjust Vexation – Pp. vs. Tamarra – July 1, l963- accused played dance music when theCatholics were about to pray the rosary.

Pp.vs. Nanoy- 69 OG. 8043 – drunk person entered w/ uplifted hands while the congregation of the Assembly of God was having its afternoon session and then grabbed the song leader- Unjust Vexation.

ARTICLE 134- REBELLION OR INSURRECTION –

I) Offenders: Any person:

a) Leader –who promotes, maintains or leads the rebellion. If unknown, spokesman, signatories of docs.- can be punished as leaders.

Pen. – Reclusion Perpetua

b) followers-

Pen.- Reclusion Temporal

II) Acts:

1) Remove from the allegiance ofthe government or its laws, or Phil. Territory or any part thereof;



2) Deprive the chief executive or legislative, wholly or partially of any of their powers.

III) Elements:

1)public uprising (rising publicly)

2) taking up arms

Purpose: to overthrow the duly constituted authority in order to establish another form of government.

- Crime of the masses/ multitude

- vast movement of men and a complex net of intrigue and plots

This is a crime against Public Order – Pp. vs. Asuncion – April l992.

If the acts of killing are not shown to be with political end or political order- not Rebellion:- Off. Of the Prov. Pros. vs. CA- Dec. 2000; Pp. vs. Ompad- 233 SCRA – l994

Baylosis vs. Chavez- 202 SCRA l99- pub. Prosecutor has the choice/ discretion to choose what crime to file.

No complex crime of Rebellion with Murder, Arson, Robbery or other serious Crimes, committed as a means to or a furtherance of the rebellion – Enrile vs. Salazar- 186 SCRA – l990.

ARTICLE 134-A- COUP D’TAT-

I) Elements:

a) swift attack accompanied w/ violence, intimidation, threat, strategy or stealth;

b) directed against military camp/installations, communications, public utilities/ facilities;

II) Offenders: Any person or persons belonging to the military, police or public officer w/ or w/o civilian support.

III) Purpose – seize or diminish state powers.

Distinction between R & C:

1) Essence of the crime

R- rising publicly & taking up arms against the govt.

C- swift attack against govt./ mil. institutions, communication facilities, pub. utilities essential in the exercise of govt. powers;

2) No. of offenders:

R- involves multitude of people

C- committed singly or collectively

3) Offenders:

R- perpetrated by any person (doesn’t require to be mil., police, AFP or public officer;

C- principal offenders are members of AFP, PNP or public officers w/ or w/o civilian support;

4) Purpose:

R- overthrow the govt.

C- destabilizing or immobilizing or paralyze the existing govt. & taking



over some facilities which are needed for the exercise of govt. powers;

5) How committed:

R- through force & violence

C- not only through force or violence but also threats, intimidation, Strategy or stealth;

Utility workers cannot commit coup d’tat.

Article 135- Penalty for Reb., Ins. or Coup d’tat-

Article 136: Conspiracy and Proposal to commit coup d’tat, rebellion or insurrection

Art. 137: Disloyalty of Public Officers or Employees (By failing to resist a rebellion or continuing to discharge the functions of their office)

ARTICLE 138:INCITING TO REBELLION OR INSURRECTION-

Offender: Any person

Elements: 1) Offender must not take up arms or is not in open hostility against the govt.;

2) Incite other to commit rebellion or insurrection;

3) means employed are speeches, writings, emblems, or any similar means.

The purpose of the meeting is always illegal as it is held to incite persons to commit rebellion.

ARTICLE 139: SEDITION:

Offender:

1)Any person

2) Public Officers (Pp.vs.

Cabrera- 43 Phil. 64).

In this crime, there is public and tumultuous uprising in order to attain by force, intimidation, or any other means outside of legal methods, the following objectives:

1) To prevent the promulgation or execution of any law or the holding of any popular election;

2) To prevent the National Govt., or any provincial or municipal govt., or any public officer thereof from freely exercising its or his functions, or prevent the execution of any administrative order;

3) To inflict any act of hate or revenge upon the person or property of any public officer or employee;

4) To commit, for any political or social end, any act of hate or revenge against private persons or any social class;

5) To despoil, for any political or social end, any person, municipality or province, or the National Government of all its property or any part thereof.

SEDITION- involves disturbance of public order resulting from a tumultuous uprising.



The ultimate object of sedition is a violation of the public peace or at least such a course of a measure as evidently engenders it (Pp. vs. Perez – 45 Phil. 599).

Sedition is a crime of dissent or protest by means outside of legal methods. It is done in excess of the legal means authorized under the freedom of expression and of assembly under the Constitution.

Murder is not an object of Sedition. So, if the accused fired upon a truck killing several persons, including two policemen, it not being shown that the purpose was to prevent the policemen from performing their functions or to inflict an act of hate or revenge upon their persons, Sedition is not committed, but Multiple Murder (Pp. vs. Mendoza – L-1271-May 5, l950).

When disorderly conduct occurs during a rally, will it bring about the crime of Sedition? Such instances of disorderly conduct by individual members of the crowd should not be seized as an excuse to characterize the assembly as a seditious and tumultuous uprising against the authorities and render illusory the right to peaceably assembly. It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasion, feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will

the disciplinary control of the leaders over the irresponsible followers. But if the prosecution be permitted to seize upon every instance of disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous uprising , then the right to assembly and to petition for redress of grievances would become a delusion and snare the attempt to exercise it on the most righteous occasion and in the most peaceful manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they have sought to attain did not happen to be pleasing to the prosecuting authorities (Dissenting Opinion of Justice Teehankee, citing U.S. vs. Apurado in Reyes vs. Bagatsing, Nov. l983).

There is no complex crime of Sedition w/ Murder nor is Murder absorbed in Sedition. Sedition & Murder are two separate crimes (Pp. vs. Kamlon- 9 SCRA 252).

Distinctions between Rebellion & Sedition:

1) Purpose: R- overthrow the duly constituted govt.;

S- maybe political or social for carrying out protest or disobedience from a govt. action and not for the purpose of overthrowing the govt.

2) R-use of firearm is essential. It is an ingredient.;



S- Use of firearm is not an essential ingredient. (However in RA 8294, Sedition is included among the crimes which absorb the use of unlicensed firearm as an element thereof);

3) The offender cannot be prosecuted for Illegal Possession of Firearms because this is absorbed in the crime of Rebellion;

S- Now – offenders can no longer be prosecuted for Illegal Possession of Firearms bec. of RA 8294.

Exs.1) Shouting that the head of the governor be cut off (Pp. vs. Perez-supra)

2) Inciting the constabulary to use their weapons against their commanders (Pp vs. Feleo – 59 Phil. 451)

Dangerous Tendency Rule rather than the clear and present danger rule is being adopted here.

ARTICLE 140- Pen. For Sedition

a) Leader – Prision Mayor in its min. per. & a Fine not exceeding P10,000.

b) Other participants – Prision Correccional in its max. per. & a Fine not exceeding P5,000.

ARTICLE 141- Conspiracy To Commit Sedition- Pen. Prision Correccional in its medium per. & a Fine not exc. P2,000.

ARTICLE 142- Inciting To Sedition

Offender: - Any person

Acts:

1) Inciting others to commit sedition by means of speeches, writings, cartoons, banners or similar representations; and

2) by uttering seditious speeches or writings or publishing scurrilous libels against the govt. or any duly constituted authorities, a) which tend to obstruct or disturb any public officer in the performance of public functions;

b) which tend to instigate others to cabal and meet together for unlawful purposes; c) which incite rebellious conspiracies or riots; d) which tend to stir public disturbances; and)

3) knowingly concealing such evil practices.

ART.143- ACTS TENDING TO PREVENT THE MEETING OF THE ASSEMBLY AND SIMILAR BODIES.

Elements:

1) Scheduled meeting of the Nat. Assembly, or any of its committees or sub-

committees, constitutional commissions, or committees or divisions thereof, or of any provincial board, city council or municipal council or board of sim. bodies;

2) the offenders prevent such meeting by force or fraud;



Penalty- Prision Correccional or a fine ranging from 200 to 2,000 pesos or both;

ART. 144. DISTURBANCE OF PROCEEDINGS –

Elements:

1) An actual meeting of the National Assembly or congress of the Phils., or any of its committees, or sub-committees, etc…,provincial board, city or municipal council & sim. bodies;

2) the offender commits any of the following acts:

a) disturbing said meeting;

b) behaving in the presence of said board in such a manner as to disrupt its proceedings or to impair the respect due it.

The accused may also be punished for contempt (Lopez vs. De Los Reyes-55 Phil. 170).

ARTICLE 145: VIOLATION OF PARLIAMENTARY IMMUNITY:

Acts punished:

1) Using force, intimidation, threats or fraud to prevent any member of Congress from: a) attending any of its committees; b) expressing his opinions; or c) casting his votes;

2) Arresting or searching any member thereof while Congress is in regular or special session except in case such member has committed a crime

punishable under this Code by a penalty higher than Prision Mayor.

Offender: Any person or public officer.

Parliamentary immunity does not mean exemption from criminal liability except from a crime that may arise from any speech that the member of congress may deliver on the floor during a regular or special session.

ARTICLE 146- ILLEGAL ASSEMBLIES-

Meeting- a gathering or group, whether in a fixed place or moving.

Kinds of Illegal Assemblies:

1) A meeting attended by armed person for the purpose of committing any of the crimes punishable under this Code;

2) A meeting in which the audience is incited to the commission of the crimes of Treason, Rebellion or Insurrection, Sedition or Assault upon a person in authority or his agent.

Persons liable:

1) Organizers or leaders; and

2) Those merely attending.

Penalties: Organizers or Leaders – PC in its max. per. to PM in its med. per.

Those merely attending- Arresto Mayor, except if they are armed - PC



When a person carries unlicensed firearm in said meeting, it shall be presumed that: a) he is the leader; b) purpose is to commit acts punishable under this Code.

ARTICLE 147- ILLEGAL ASSOCIATIONS:

Kinds of Illegal Associations:

1) Those totally or partially organized for the purpose of committing any crimes punishable under the Code;

2) Those totally or partially organized for some purpose contrary to public morals.

Persons liable: a) Founders, Directors or President; b) Members.

“Public Morals” refer to acts that affect the interest of society and public convenience. It is not confined to limited concept of “good customs” and covers a system of judicial precepts founded on human nature that regulate public convenience. It refers to acts that are in accordance with natural and positive laws. The gravamen of the offense is the forming of an asso. for the purpose of criminal activities prohibited by the Code or special laws against public morals or any act prejudicial to public welfare.

ARTICLE 148: DIRECT ASSAULT-

There are two kinds of DA:

1) Without public uprising, by employing force or intimidation to attain any of the purposes enumerated in the crimes of Rebellion or Sedition; and

2) By attacking, employing force, seriously intimidating or seriously resisting any person in authority or any of his agents, while engaged in the performance of official duties or on the occasion of said performance.

Elems. of the first kind of DA:

a) That there be no public uprising;

b) Force or intimidation is employed; &

c) To attain any of the purposes of Rebellion or Sedition (Pp. vs. Jingco- Dec. 31, l965). This kind of DA is in reality Rebellion or Sedition short of public uprising, and is therefore, very rare.

Elems. of the 2nd kind of DA:

a) No public uprising;

b) Offender attacks or employs force or seriously intimidates or seriously resists another;

c) Offended party is a person in authority or his agents;

d) Offended party was assaulted while in the performance of official duties or on the occasion of such performance; and

e) Offender knows that the person assaulted is a person in authority or his agent.

The second kind of DA is committed in four ways: a) by attacking; b) by



employing force; c) by seriously intimidating; or

d) by seriously resisting a person in authority or his agent.

The felony becomes qualified if the offender:

a) uses a weapon;

b) is a public officer or employee; and

c) he lays hand upon the person in authority.

“Attack” – is any offensive or antagonistic movement or action of any kind. Ex. Drawing of a pistol from the holster at the hip and the aiming of that pistol at a person (Pp. vs. Ladena- G.R. No. 6008-R).

“Intimidate” – to frighten or instill fear.

“Resist” – to exert force in opposition, or manifest intention to defy.

Person in Authority- ( Art. 152-par. 1-RPC) – any person directly vested with jurisdiction( which means the power or authority to govern and execute the laws). Ex. The authority vested upon the judges to administer justice and render judgment. (Pp. vs.Mendoza- 559 Phil. 163).

Agent of person in authority- (Art. 152-par. 2) –any person who by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order.

Ex. Police Officers

Other exs. of persons in authority: Barangay Captains, Lupon Members & Brgy. Councilors (Local Govt. Code)-(Pp. vs. Sion- August l997); Teachers (Magna Carta for Teachers).

“ In the performance of official duties” – refers to the legitimate exercise of the functions of the person in authority. The duties must be performed according to law.

“ On the occasion of such performance” – means the impelling motive of the attack is the performance of official duty. The words “on occasion” signify “because” or “by reason of” the past performance of official duties even if at the very time of the assault no official duty was being discharged (Justo vs. CA).

“ To lay hands upon a person in authority” – is to inflict upon him physical injury. Ex. Strike him with the hands; choke or suffocate him.

DA is a crime brought about by the spirit of lawlessness displayed in the commission of the act. It will arise when the act committed is indicative that the offender is utterly lawless or against the rule of law. When an attack is made to a person in authority while in the performance of his duty, the crime is DA, whatever his reason may be for attacking . If made when the officer is off-duty, the offender’s reason for the attack should be examined. If the attack is related to the past performance of duty, then there is DA; otherwise, none. Hence, motive becomes material in the proper determination of the offense committed.



Generally, the offender must be aware that the offended party is possessed of authority. Hence, if he does not know that the offended party is a public officer, DA is not committed. This is subject, however, to the rule of “ignorance of the law excuses no one” : whether the public officer is a person in authority (PA) or an agent of a person in authority (APA), within the meaning of Art. 152 is a question of law, ignorance of which is not excused. That means, that the offender does not have to know that he is included in Art. 152 as long as he knows that he is a public officer.

By virtue of Art. 152, any person (civilian) who comes to the aid of a PA becomes an APA. If the victim of the DA is a PA and a civilian aids him, the latter becomes an APA.

Pp. vs. Salvador Jingco- G.R. No. 05271-CR- Ricardo Gonzalodo, public school teacher in the Matabang Elementary School of Talisay, Negros Occidental, sustained injuries in the hands of Jingco and his wife in the afternoon of Oct. 31, l963, just outside the classroom where Gonzalodo was holding his class as a result of the attempt of the appellant and his wife to collect the debt of Gonzalodo.

The SC ruled that there was no DA. Gonzalodo came out of the classroom voluntarily; he went where, as a teacher during class hour, he had no business to be, although he was within the school premises, and so he was not in the performance of his duty. Thus Jingco

cannot be convicted of the crime of DA upon a PA under Art. 148.

Force must be employed to defy the authorities. The force must be serious and must be of such a character as to show contempt for authority. Casual force which usually accompanies resistance or disobedience to authorities is not sufficient. It has reference to something more dangerous to civil society.

DA may be complexed with common crimes. So there can be DA w/ Murder, DA w/ Frustrated Murder, DA w/ Att. Murder, DA w/ Serious Physical Injuries, DA w/ Less Serious Physical Injuries. But if the injury is only slight, then this is absorbed in the crime of DA.

Penalty: PC in its minimum period & a fine not exceeding P500 – ordinary DA.

If qualified: PC in its medium & max. periods and a fine not exceeding P1,000.

ARTICLE 149- INDIRECT ASSAULTS-

Elems:

1) DA is committed against an agent of a person in authority;

2) the offended party comes to the aid of said agent of a person in authority; and

3) offender uses force or intimidation upon said offended party.

Under RA 1978, a private person who comes to the aid of a person in authority



becomes an agent of a person in authority. If such private person is himself assaulted, while coming to the aid of a person in authority, DA is committed. However, if a private person who comes to the aid of an agent of a person in authority on the occasion of a direct assault being committed against the latter, is assaulted, Indirect Assault is committed.

Pen. – PC in its min. & med. periods & a fine not exceeding P500.

ARTICLE 150 – DISOBEDIENCE TO SUMMONS ISSUED BY THE NATIONAL ASSEMBLY, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSION, ITS COMMITTEES, SUBCOMMITTEES OR DIVISIONS-

Acts punished:

1) Disobedience w/o legal excuse to summons issued by the National Assembly (now Congress) or any of its committees or subcommittees;

2) refusal of any person present before a legislative or constitutional or official to:

a) be sworn or placed under affirmation;

b) to answer any legal inquiry;

c) to produce any books, papers, documents, or records in his possession when required to do so by said bodies in the exercise of their functions.

Persons liable:

a) Any person who commits any of the above acts;

b) any person who: i) restrains another from attending as a witness; ii) induces him to disobey a summon; iii) who induces him to refuse to be sworn in by such body.

Any of these acts may also constitute contempt of Congress and could be punished as such independent of the criminal prosecution (Lopez vs. de Los Reyes- 55 Phil. 170). Such power must be considered implied or incidental to the exercise of legislative power or necessary to effectuate said power ( Arnault vs. Balagtas – 31 O.G. 4017).

ARTICLE 151- RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR AGENTS OF SUCH PERSON-

Elems:

1) There is no direct assault, indirect assault, or disobedience to summons issued by Congress;

b) the offender resists or seriously disobeys a person in authority or his agent; and

C) at the time of said resistance or disobedience, the person in authority or his agent is in the performance of his duties.

Simple disobedience- if the resistance to the person in authority or agent is not of a serious nature.



Ex. Where the accused during a strike laid down on the road as human roadblocks and thereafter disobeyed and resisted an order of an agent of a person in authority to clear the road, this crime is committed ( Pp. vs. Macapuno- 58 O.G. 4985).

Striking a policeman in the breast who was arresting the offender constitutes simple resistance ( U.S. vs. Tabiana- 37 Phil. 515).

Distinction bt. DA & Resistance:

1) DA- offended party is assaulted while in the performance of his duties or by reason thereof;

R or D- the officer must be in the discharge of his duties;

2) DA- resistance must be serious;

R or D – resistance is not serious, i.e. w/o manifest intention to defy authority of the law.

ARTICLE 152 –PA & APA

ARTICLE 153- TUMULTS & OTHER DISTURBANCES OF PUBLIC ORDERS:

Kinds:

1) Causing serious disturbance in a public place, office or establishment;

2) interrupting or disturbing public performances, functions, gatherings or peaceful meetings, provided the act is not included in Arts. 131 & 132;

3) making any outcry tending to incite rebellion or sedition in any meeting, association or place;

4) displaying placards or emblems which provoke a disturbance of public order;

5) burying w/ pomp the body of a person who has been legally executed.

Qualifying circumstance in nos. 1 & 2 – when committed by more then 3 armed persons (at least 4 or provided w/ means of violence such as stones, sticks, etc. in which case, the crime is denominated tumultuous disturbance.

Public Disturbance- is a serious distur-

bance in a place where performance of public function is being held, if the disturbance is not covered by Arts. 131 & 132 (if the disturbance is not serious- Alarms and Scandals under Art. 155).

Art. 153 is distinguished from Inciting to Rebellion or Sedition – in the former, the outburst which by nature may tend to incite rebellion or sedition are spontaneous and the meeting at the outset was legal and became a public disorder only because of such outcry; while in the latter, the meeting from the beginning was unlawful and what was uttered was deliberately calculated with malice aforethought to incite others to rebellion or sedition.



Pen- Pars. 1 & 2- AMa in its med per. To PC in its min. per. & a fine not exceeding P1,000;

Pars. 3 & 4 – AMa

Par. 5- AMa & fine not exceeding P200.

ARTICLE 154- UNLAWFUL USE OF PUBLICATION AND UNLAWFUL UTTERANCES-

1) Publishing or causing to be published by means of writing, litography, or any other means of publication as news, any false news which may endanger the public order, or cause damage to the interest of credit of the state;

2) encouraging disobedience to the law or the duly constituted authorities, or by praising, justifying, or extolling any act punished by law, by the same means or by words, utterances or speeches;

3) maliciously publishing or causing to be published any official resolution or documents w/o proper authority, or before they have been published officially; or

4) printing, publishing or distributing books, pamphlets, periodicals, w/c do not bear the real printer’s name/ anonymous.

ARTICLE 155- ALARMS & SCANDALS –

Acts penalized as Alarms & Scandals:

1) Discharge of firearms, firecrackers, and other explosives in public places;

2) Charivari;

3) Engaging in nocturnal amusement disturbing the public place; or

4) Any disturbance or scandal in public places not amounting to tumults.

Other crimes which can arise from discharge of firearms:

1) Alarms & Scandals- offender discharges a firearm in a public place but the firearm is not pointed to a particular person when discharged;

2) Discharge of Firearm- if the firearm was directed to a particular person

who was not hit if intent to kill is not proved.

3). Attempted Murder or Homicide- if the person was hit, automatically, and there was intent to kill.

4) Physical Injuries- if the person was hit and injured but there was no intent to kill.

5) Threat- if the weapon is not discharged but merely pointed to another.

6). Grave Coercion – if the threat was direct, immediate and serious and the person is compelled or prevented to do something against his will.

Charivari- is a mock serenade where the offender actually disturbs the peace by



using cans, pans, utensil, etc. (breach of peace/tranquility).

Alarms & Scandals- disturbance or noise is done in a public place; Unjust Vexation- if the noise is directed to a particular person or family to cause annoyance.

Pen.- AMe or a fine not exceeding P200

ARTICLE 156-DELIVERY OF PRISONER FROM JAIL-

Elems: 1) Offender is a private individual;

2) He removes a person confined in jail or a penal institution or helps in the escape of such person; and

3) The means employed are violence, intimidation, bribery or any other means.

Offender- is an outsider to the jail, because if he is a public officer or a private person who has the custody of the prisoner and who helps a prisoner under his custody to escape, Arts. 223 & 225 will apply, respectively.

Prisoner – detention prisoner or one sentenced by virtue of a final judgment.

If the person who escapes is serving sentence by virtue of final judgment, he commits Evasion of Service of Sentence (Art. 157).

A detention prisoner is not liable for evasion.

If the said prisoner cooperates in his removal or escapes by acts without

which the removal or escape would not be realized, he is liable as a co-principal under Art. 156.

A prisoner confined in the hospital – this crime is committed, if he escapes because the hospital may be considered as an extension of the jail.

Removing a prisoner- to take away a person from his place of confinement w/ or w/o the active participation of the person released.

To help- is to furnish him w/ material means such as ladder, rope, etc. w/c facilitates his escape.

That the accused received bribe is not an element. What constitutes the qualifying circumstance is the offender’s act of employing bribery as a means of removing or delivering the prisoner from jail.

This can be committed through negligence or imprudence.

Pen- AMa in its max. per. to PC in its min, per.

AMa- if other means are used.

If the escape is done by taking the guards by surprise- AMa- min. per.

Three (3) kinds of Evasion of Service of Sentence: Arts. 157, 158 and 159.

ARTICLE 157- EVASION OF SERVICE OF SENTENCE-



Elems: 1) Offender is a prisoner serving sentence involving deprivation of liberty by reason of final judgment;

2) He evades the service of his sentence during his term of imprisonment.

This is simply known as “Jail-breaking”.

Pen- PC in its med. & max. periods.

The felony is qualified: when the evasion takes place by: a) breaking doors, windows, gates, floors, walls or roofs; b) using picklocks, false keys, disguise, deceit, violence, intimidation, or

c) connivance with other convicts or employees of the penal institution.

Imprisonment includes destierro- so if the prisoner enters the prohibited place, he commits evasion (Pp. vs. Abilong- 82 Phil. 172).

Evasion of Service of Sentence- is a continuing offense which may be prosecuted in any place where the offender may be found (Parulan vs. Director of Prisons- L- 28519).

If an alien is deported after having been found guilty of committing an offense and who returns to the Phils. in violation of the term of sentence, evasion of sentence is not committed because in deportation one is not sentenced to an imprisonment term and breaks jail (Pp. vs. Lo Hee-36 Phil 867).

ARTICLE 158- EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF

DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES.

Elems:

1) Offender is a prisoner serving sentence and is confined in a penal institution;

2) He evades his sentence by leaving the penal institution;

3) He escapes on the occasion of a disorder due to conflagration, earthquake, explosion, or similar catastrophe or mutiny of which he has not participated;

4) He fails to give himself up to the authorities w/n 48 hours following the issuance of a proclamation by the chief Executive regarding the passing away of the calamity.

Under the principle of “ejusdem generis” only circumstance of similar nature will apply.

Mutiny/riots are not included.

Evasion lies in the failure to return, not in leaving the penal institution. The prisoner therefore must leave the jail and thereafter return after the disorder ceases. Thus:

1) Leaving without returning within the time period prescribed – 1/5 addition to the remaining sentence which should not be more than 6 mos., that is: 1/5 of the balance of the sentence or 6 mos. whichever is lesser;

2) not leaving- no deduction; pen. as is.



3) leaving and thereafter returning within the time period prescribed- 1/5 deduction from his sentence as provided under Art. 98. (original sentence – favorable to the accused).

ARTICLE 159- OTHER CASES OF EVASION OF SERVICE OF SENTENCE-

The penalty of PC in its min. per. shall be imposed upon the convict who, having

been granted conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon. However, if the penalty remitted by the granting of such pardon be higher than 6 yrs., the convict shall then suffer the unexpired portion of his original sentence.

Remedies of the state if conditions of pardon are violated: 1) Judicial remedy by prosecution of offender under Art. 159;

2) Administrative remedy by ordering arrest and reincarceration of the offender under 64(i) of the Revised Administrative Code.

Violation of conditional pardon is an evasion of service of sentence because when the prisoner accepted the condition, no matter how onerous, he must respect the condition. Otherwise, he is deemed to have accepted the conditional pardon only to get out of prison or otherwise be relieved of the penalty.

Conditional pardon is a contract between the Chief Executive and the

convict. It is not perfected unless accepted.

Violation of conditional pardon is not a public offense in the strict sense of the word, for it does not cause harm or injury to the right of other persons nor it disturb the public order. While evasion of service of sentence is a public offense (Alvarez vs. Dir. of Prisons- 80 Phil. 43).

Art. 159 defines a distinct and substantive felony. The convict who is regarded as having violated the provision thereof must be charged, prosecuted and convicted by final judgment before he can be made to suffer the penalty prescribed in said article (Torres vs. Gonzales- July 23, l987).

ARTICLE 160- QUASI-RECIDIVISM-

Commission of another crime during service of penalty imposed for another offense.

Elems.:

1) Offender is convicted by final judgment of a felony or an offense; and

2) He commits another felony before beginning to serve such sentence or while serving the sentence.

Art. 160 applies although the next offense is different in character from the first offense for which the defendant is serving sentence (Pp. vs. Yabut-58 Phil. 499), and it makes no difference whether the crime for which an accused



is serving the sentence at the time of the com-

mission of the offense charged falls under the RPC or under SPL. The second offense, however, must be a felony punished under the RPC.

The severe penalty imposed on quasi-recidivism is justified because of his perversity and incorrigibility (Pp. vs. Peralta, et al.-Oct. 29, l968). If a person is convicted of a crime committed while serving sentence of a previous crime, he shall be sentenced to the maximum

of the penalty prescribed b law without regard to the presence or absence of mitigating or aggravating circumstances or the complete absence thereof (Pp. vs. Bautista- July 25, l976).

When the quasi-recidivist reaches the age of 70, he may be pardoned unless he is a habitual delinquent.

Quasi-recidivism- is a special aggravating circumstance and cannot be offset by any mitigating circumstance (Pp. vs. Aling- 96 SCRA 472 & Pp. vs. Tampas- 96 SCRA 624).

CRIMES AGAINST PUBLIC INTEREST

Article 161- Counterfeiting the great seal of the govt. of the Phils., forging the signature or stamp of the Chief Executive (Not Falsification ).

Article 162 - Using forged signature or counterfeit seal or stamp.

Article 163 –Making, importing and uttering false coins( pen. depends upon whether the coin is gold, silver or 10-centavo denomination or minor coinage or of the foreign country).

Art. 163 does not require that the coins counterfeited be of legal tender or even if the coins are withdrawn from circulation. Reason: It is not alone the harm caused to the public by the fact that it may go into circulation but the danger that the counterfeiter produces by his act or if foreigner, by his stay in our country, and the possibility that he may counterfeit coins of legal tender.

Counterfeiting- to imitate a coin that is genuine. The criterion is that the imitation must be such as to deceive an ordinary person in believing it to be genuine. If the imitation is so imperfect that no one may be deceived, the felony cannot be consummated.

Importing- to bring into the port even before the coins are entered in the Customs Office.

Uttering of coins- to circulate, to pass on.

Article 164- Mutilation of Coins-

Mutilation – is to diminish by ingenious means the metal in the coins. The coins in this case must be of legal tender. The offender takes advantage of the metal he abstracted.



Article 165- Selling of false or mutilated coins, without connivance- This penalizes possession of false coins w/ intent to utter.

RA 427- which punishes possession of silver or nickel coins in excess of P50.00 (Mala Prohibita). It is a measure of national policy to protect the people in general and particularly the poorer class, from the conspiracy of those hoarding silver or nickel coins and to preserve and maintain stability.

Article 166- Forging Treasury or Bank Notes, Obligations and Securities; Importing & Uttering False or Forged Notes, Obligations and Securities.

Acts punished- forging treasury notes, bank notes and certificates or other obligations and securities ( certificates of deposits, bills, checks, sweepstakes ticket and lotto).

Forging bank check now – Falsification of Commercial Document.

Article 167- Counterfeiting, Importing, & Uttering Instruments Payable to Bearer.

Article 168- Illegal Possession and Use of False Treasury or Bank Notes and Other Instruments of Credit-

Possession of false treasury or bank notes alone without intent to use it is not a criminal offense.

Inebriation- circ. which may indicate lack of awareness of the false character of a

bill or note, for he is hardly to be expected to have the presence of mind to scrutinize every bill that is passed to him.

ARTICLE 169- How forgery is committed-

1) By giving a treasury or bank note or any instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document.

2) By erasing, substituting, counterfeiting, or altering by any means the figures, letters, words, or signs contained therein.

The subject of the forgery should be treasury or bank notes. If the subject of a forgery were a

document other than these, the crime would be falsification.

ARTICLE 170- FALSIFICATION OF LEGISLATIVE DOCUMENTS-

committed by any person who, without proper authority therefor alters any bill, resolution, or ordinance enacted or approved or pending approval by either House of the Legislature or any provincial board or municipal council.

Offender – any person. Must not be a public official entrusted with the custody of the documents, otherwise Art. 171 will apply. The alteration must have the effect of changing the meaning of the document.

PD 247- punishes any person who willfully defaces, mutilates, tears, burns or destroys, in any manner whatsoever,



currency notes or coins. Penalty- Fine of not more than P20T &/or imprisonment of not more than 5 years.

FALSIFICATION OF DOCUMENTS

Document- any written instrument by which a right is established or an obligation is extinguished (Pp. vs. Moreno – 38 O.G. 119), or every deed or instrument executed by a person by which some disposition or agreement is proved, evidenced or set forth (Pp. vs. Nillosquin- 48 O.G. 4453). The writing must be complete, otherwise, there is no falsification ( Pp. vs. Dava-Sept. l991).

KINDS OF DOCUMENTS

1) Public document – any instrument notarized by a notary public or competent public official with the solemnities required by law ( Cancio vs. Baens- 5 Phil. 742); or one that has become part of public record.

Examples: Deed of Sale; Deed of Mortgage; Official Receipt, Cash book, Residence Certificates, Resolutions and Decisions of DOJ, Ombudsman & Judges.

2) Official document – any instrument issued by the government or its agents or its officers having the authority to do so and the offices, which in accordance with their creation, they are authorized to issue. The officers must issue the document in the performance of their duties.

Examples: Resolutions, decisions of DOJ, Omb. and Judges, Register of Attys.

3) Private document – every deed or instrument executed by a private person without the intervention of a notary public or of any other person legally authorized, by which document some disposition or agreement is proved, evidenced or set forth. Exs. Promissory notes.

4) Commercial document- any instrument executed in accordance with the Code of Commerce or any mercantile law containing disposition of commercial rights or obligations.

Exs.- Bill of Exchange, Letters of Credit, Checks, Quedans, Airway Bills.

Writings which do not constitute documents:

1) Draft of a municipal payroll, which is not yet approved – Pp. vs. Camacho-44 Phil. 888.

2) Mere blank forms of official documents (Pp. vs. Santiago- 48 O.G. 455580).

3) Pamphlets or books (Pp. vs. Agnis-47 Phil. 945).

4) Invoices or cash disbursement vouchers.

When may a private document become a public or official doc.?

When it becomes a part of the public or official records, it partakes of the nature of a public or official document. So, if the falsification is committed on such document, that is, when it is already part of the public record, the crime is Falsification of Public of Official



Document. But if the falsification is committed before such document became part of the public or official record, the crime is Falsification of a Private Document (U.S. vs. Nieto- 6 Phil. 582).However, if such private document is intended to become a part of the public record, even though falsified prior thereto, Falsification of a Public Document is committed. Ex. The civil service examination paper before it becomes a part of the files of the Civil Service is a private document. If falsified then, the crime is Falsification of a Public Document.

Is falsification committed if the document is simulated?

Yes, falsification may be committed even if the public document is simulated or is not in the official form.

Falsification by Omission – The accused, a bookkeeper at an army post exchange, who deliberately falsified the ledger by not recording in his own personal account the chits for articles

Bought by him from the store of Post Exchange commits falsification by omission (Pp. vs. Dizon- 47 Phil. 350).

FALSIFICATION THROUGH RECKLESS IMPRUDENCE- The failure of the accused, a notary public, to ascertain the identities of the supposed applicants, in relation to the applications presented to him for ratification, and to verify whether they were really owners of the Residence Certificates exhibited to him, and relying completely upon the assurances of his co-accused, constitute

reckless imprudence, pure and simple (Pp. vs. Compra- G.R. No. L-20683). But there can be no falsification of a private document through reckless imprudence as that will be inconsistent with the element of intent to cause damage in said crime.

What is penalized in Falsification of Public Document? – violation of the faith and trust of the public and the destruction of the truth as therein solemnly proclaimed. The revocation of a falsified document is immaterial to the guilt of the one charged with Falsification.

Elements:

1) Offender is a public official, employee, notary public or ecclesiastical minister;

2) He takes advantage of his official position; and

3) He falsifies document by any of the 8 ways enumerated in Article 171.

Public Officer (Article 203- RPC)- is any public servant from the highest to the lowest who is performing service to the government or any of its branches or instrumentality. He is holding his public office by virtue of the provision of law, by election or by appointment by a competent authority and performs public duties as a subordinate official, employee or agent of any rank or class.

Eight acts:

1) COUNTERFEITING OR IMITATING HANDWRITING, SIGNATURE OR RUBRIC-



Counterfeiting- imitation of the original handwriting or signature. It is not necessary that the imitation be perfect. It is enough that there be an attempt to imitate, and that the two signatures, the genuine and the forged, bear some resemblance to each other.

The document need not be an authentic official paper (Castillo vs. Sandiganbayan-151 SCRA 425).

2) CAUSING IT TO APPEAR THAT PERSONS HAVE PARTICIPATED IN ANY ACT OR PROCEEDING WHEN THEY DID NOT IN FACT SO PARTICIPATE.;

3) ATTRIBUTING TO PERSONS WHO HAVE PARTICIPATED IN AN ACT OR PROCEEDING STATEMENTS OTHER THAN THOSE IN FACT MADE BY THEM;

4) MAKING UNTRUTHFUL STATEMENTS IN A NARRATION OF FACTS;

5) ALTERING TRUE DATES;

6) MAKING ANY ALTERATION OR INTERCALATION IN A GENUINE DOCUMENT WHICH CHANGES ITS MEANING;

7) ISSUING IN AN AUTHENTICATED FORM A DOCUMENT PURPORTING TO BE A COPY OF AN ORIGINAL DOCUMENT WHEN NO

SUCH ORIGINAL EXISTS, OR INCLUDING IN SUCH COPY A STATEMENT CONTRARY TO, OR DIFFERENT FROM, THAT OF THE GENUINE ORIGINAL; OR

8) INTERCALATING ANY INSTRUMENT OR NOTE RELATIVE TO THE ISSUANCE

THEREOF IN A PROTOCOL, REGISTRY, OR OFFICIAL BOOK.

Examples:

1)Payroll of a Clean and Green-Mayor Maamo cs.

Names Amt. Signature

Juan Cruz – 1,000 - (sgd)

Pedro Buta- 1,000- (sgd)

Signatures appearing therein are not that of Juan and Pedro as both are already dead.

Acts- Counterfeiting/feigning the signatures & causing it appear that these persons participated in an act, when in fact they did not.

Crimes committed-

-If the money was already with the mayor and the act of falsification was used to hide the misappropriation of the public funds – two crimes: Malversation of Public of Public Funds and Falsification of Public/Official Document.

If the falsification of the payroll was a means to be able to get the money, then this is a complex crime of Malversation Public Funds Thru Falsification of Public/Official Document.

2) Land Bank of the Phils. Check (LBP)-Jacqueline Lim cs.:

Original entries of the check is for

P 2,000, then changed this to P 22,000.

3,000, to P 33,000 – Total loss – P6M.



Acts-no. 3,4 & 6

Crime: Malversation of Public Funds Thru Falsification of a Commercial Document.

3) Decision in a Special Proceeding- Prosecutor made alterations, by changing the number of the case, title and names of parties and date, and counterfeited the signature of the judge (Antique cs.).

Acts- nos. 1,3,4,5 & 6.

Crime- Falsification of Public Document.

4) Falsification of the duplicate and triplicate copies of an OR (Cebu City Hall cs.):

Acts- nos.3,4,6

Crimes- if the falsification was used to hide the act of malversation – two crimes of Malversation of Public Funds & Falsification of Public Document.

If used as a means to obtain the money- complex crime of Malv. of Public Funds Thru Falsification of Public/Official Doc.

4) Falsification of Promissory Note- Falsification of a Private Document.

5) Local Civil Registrar- issued a certified true copy of a birth certificate, marriage certificate or death certificate –

Act- no. 7.

6) Changing the date of arrest by the police officers –to avoid possible viol. of Art. 125 RPC.

Act – no. 5

7) Employee of the LGU was teaching in a Catholic school. His schedule was from 7:30 to 9:00 am. (shown in his school DTR). At the same time, his DTR at the LGU showed that he was at his office at 8:00 to 9:00 am. In the afternoon, his DTR showed that he was at his office at the LGU up to 5:00pm. But his school DTR showed he was at the school at 4:30 to 6:00pm (Antique cs):

Act: No. 1.

8) Govt. employee placed in his l999 SAL-N that he had only P30,000 cash on hand/bank. 3 banks issued Certifications that he had P5.8 Million time deposit.

Act no. 4.

Crime- Falsification of a Public Document.

9) Special Power of Attorney- BIR employee case). The Res. Certificates were not issued by the Cebu City Hall. The notary public was not among those listed at the SC records as a duly commissioned Notary Public. The affiants disowned their signatures.

Acts: 1, 2 and 4.

Crime: Falsification of a Public Document.

Intent to gain or damage is immaterial in Falsification of Public Document (Alcantara vs. Sandiganbayan- July 3, l992).

Pp. vs. Manansala- (105 Phil. 1253)- It is an established rule that when a person



has in his possession a falsified document and makes use of it, the presumption or inference is that such person falsified it (Pp. vs. Caubang- June l992).

Falsification by omission- where it appears that the accused in filing an application for patrolman’s exam. stated under oath that he was never convicted for any violation of the law, which was false (Pp. vs. Cruz- May 25, l960).

Any alteration done to correct a wrong entry is not falsification- changing the age from 24 to 34.

Punzalan vs. COMELEC- 289 SCRA, April l998- handwriting expert not binding upon the cts. While handwriting experts are usually helpful in the examination of forged documents because of the technical procedure, resort to them is not mandatory nor indispensable (Heirs of Severa P.Gregorio vs. CA- 300 SCRA, Dec. l998). The Judge must conduct its own independent examination to determine its authenticity.

Falsification/forgery cannot be presumed. It must be proven by clear, positive and convincing evidence. The burden of proof lies in the party alleging forgery (Joven vs. Carungin- June 2002).

There is such thing as Estafa thru Falsification of Public Document if the money involved is privately owned (but no such crime if the document is private). Because there is no complex crime of Estafa Thru Falsification of a Private Document, because these two crimes ( Falsification and Estafa) have an

element in common, which is intent to cause damage or the damage itself.There is no Estafa, through deceit or fiduciary position abused, unless another has been damaged or there has been an intent to damage one. Similarly, there is no Falsification of a Private Document in the in the Penal Code sense, unless in addition to the forgery, there is damage or intent to cause damage to another through forgery. Just as deceit by itself is not Estafa, so Falsification of a Private Document by itself, is not the crime of Falsification of a Private Document, without damage (Pp. vs. Paguitalan- 38 O.G. 410).

In this situation, it must be duly considered whether the offender can misappropriate the private funds without tampering with the private document. If he can, then the crime is pure and simple Estafa, but if he cannot misappropriate the fund without tampering with the private document, then the crime is Falsification of a Private Document (Art. 172).

Is good faith a defense in the crime of Falsification? Yes. There is no falsification if the acts of the accused are consistent with good faith. Ex. Misstatements or erroneous assertions in a public document.

Layug vs. Sandiganbayan- l32 SCAD August 2000- Acc. filled up his DTR despite the fact that he has no work because he was detailed in another office of which he is contesting.



ART. 172-Falsification by Private Individual

& Use of Falsified Doc. Acts punished:

1) Falsification of any public or official or commercial document by a private individual;

2) Falsification of a private document; and

3) Use of such falsified document.

A) Falsification of a public or official or commercial document by a private individual. Refers only to Acts 1 to 6.

Falsification of a Deed of Sale by a private individual, by inserting in the genuine deed two other parcels of land. What was sold was only one parcel, but the vendee inserted the two other parcels (Riveral case).

Article 172- Acts no. 3,4 and 6.

Crime- Falsif. of a Public Doc. by a Private Individual.

A lawyer made it appear that the judge issued a Decision, when it is not true.

Acts- no. 1, 2, 4

Crime- Falsification of an Official Document by a Private Individual.

Alta Vista case- Leader of the group of squatters made it appear that the members of his group received the money paid to them by Alta Vista by signing the private payroll, when in fact this is not true.

Acts: no. 1, 2, 4

Crime -Falsification of a Private Document by a Private Individual – because the leader falsified the payroll by making it appear that the members affixed their signatures therein and then presented this to Alta Vista as his basis to claim the money.

Use of falsified document – The crime punished in the last par. of Art. 172 (introducing in evidence in any judicial proceedings or to the damage of another who uses such fake documents (is not necessarily included in the crime of falsification of a public document by a public officer or employee or by a private person (Pp. vs. Mendoza).

Distinction between Falsification of Public Document and Falsification of Private Document:

1) In Falsification of Public Document- mere falsification is enough; whereas in Falsification of a Private Document, aside from falsification, prejudice to a third person or intent to cause damage is essential;

2) Falsification of a Public Document- committed in 8 ways; whereas in Falsification of a Private Document-cannot be committed in any of the ways specified in pars. 7 & 8. (Acts are only from 1 to 6).

Use of Falsified Document- if used in any other proceeding, damage or intent to cause damage is material, but if it is a judicial proceedings, then damage is not an element.



Penalty – Prision Correccional- med & max. per. & a Fine not exceeding P5,000.

Art. 173-Falsif. of wireless cable telegraph, & telephone messages, & use of said falsified messagesOffenders: Any officer or employee of the govt. or of any private corp.Elem.: engaged in the service of sending or receiving wireless cable, telephone messages;utters fictitious wireless, telegraph or telephone message of any system. -Any person who shall use such falsified dispatch to the prejudice of a third party or with intent to cause such prejudice.

Penalty- Prision Correccional in its medium and maximum period.

ARTICLE 174- FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFICATES OF MERIT OR SERVICE

1) First group:

Offenders:

Physicians/surgeons in connection with the practice of his profession

Acts:

Issue false medical certificate

2) Second group:

Offenders: Public Officers

Acts: issue false Certificates of Service, good conduct or similar

circumstances (intent of gain is immaterial).

Penalty for nos. 1 & 2- Arresto Mayor max. to Prision Correccional in its minimum period and a Fine not to exceed P1,000.

3) Third group:

Offenders: private persons

Acts: issue false certificates.

Penalty – Arresto Mayor

Article 175-Using False Certificates

1) Offender- any person

2) Acts –a) Uses the medical certificates, cert. of service, etc.

b) knowing it to be false.

Penalty – Arresto Menor

False certificates must not be confused with falsified documents under Arts. 171 and 172. There are distinctions, to wit:

1) Use of false documents under Arts. 171 & 172- will make the offender liable under par. 3 of Art. 172;

2) Use of false certificates in Art. 174, whether in a judicial or any proceeding with knowledge of their falsity, will subject the offender for prosecution under Art. 175.



Art. 176-Manufacturing/Possessing of Instruments for Falsification.

1) Offender:

a) Maker/ introducer in our country stamps, dies, marks, or other instruments or impl. intended to be used in the commission of the offenses of counterfeiting or falsif. (Arts. 171 to 174);

b) Possessor – w/ intention to use.

2) Pen- Prision Correccional in its min & med periods.

Article 177- Usurpation of Authority or Official Functions

1) Offender: Any person –

a) public officer ( ex. Pp. vs. Hilvano- 52 O.G. 5491 – a Mun.

Councilor continued exercising the functions/duties of a Mayor despite the opinion given by the Exec. Sec. & Provl. Pros. that the Vice-Mayor has the right to exercise said duties).

Another ex. A DA official who signed the Deed of Donation of a parcel of land for the use by the Dept. of Agriculture and later on also signed the Deed of Revocation, is also liable under this prov. because only the Secretary of Agriculture has the authority to do so or the Regional Director, if given such authority by the Sec.

b) private person (person who pretended to be a BIR Examiner).

2) Acts:

a) Knowingly & falsely representing himself to be an officer, agent or rep. of any dept. or agency of the Phil. Govt. or any foreign govt.;

b) Performing any act pertaining to any person in authority or public officer of the Phil. Govt. or foreign govt. under pretense of official position and without being lawfully entitled to do so.

There must be false pretense as without it there is no such offense – Gargantoni vs. Pp- June 16, l988- motorist who directed the traffic to unwind the same.

3) Penalty – Prision Correccional in its minimum to medium periods.

If the functions usurped is that of a diplomatic, consular or other official of a foreign govt. – Republic Act 75, which carries a penalty of imprisonment of not more than 5 years or a fine not exceeding P5,000.

Republic Act no. 10 – punishes any person, who with or without pretense of official position, shall perform any act pertaining to the govt. or any person in authority or public officer, without being lawfully entitled to do so. This carries the penalty of imprisonment of not less than 2 years nor more than 10 years.

This law however, refers only to seditious organization.



Article 178- Using Fictitious Names & Concealing True Names

There are two acts punished in this article:

A) Using Fictitious Names

B) Concealing True Names

A) USING FICTITIOUS NAMES:

1) Offender: any person

2) Acts:

a) using a name other than his real name;

b) fictitious name was used publicly;

c) the purpose is to:

i) conceal a crime

ii) evade judgment

iii) cause damage to public interest.

Exs. Gen. Tumulak & Potot cs.

Pp. vs. Ho Tee Piu- signing fictitious name in his passport.

True name – one which appears in the Birth Certificate.

Pen- AMayor & a fine not exceeding P500

B) CONCEALING TRUE NAME-

Elements:

i) offender conceals his true name & other personal circumstances; and

ii) the purpose is to conceal his identity.

In our jurisdiction, concealment is not only for his true name but also the other personal circumstances.

Pen- AMenor or a fine not exceeding P200

Commonwealth Act No. 142- Regulate the use of Aliases: except as pseudonym for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of a pseudonym is a normally accepted practice, no person shall use any name different from the one which was registered in the office of the local civil registrar.

Rivera vs. Intermediate Appellate Court- 132 SCRA 478- a common-law wife does not incur criminal liability under CA 142 if she uses the family name of the man she has been living with for almost 20 years, introduced by him to the public as his wife and she assumed that role and his name without any sinister motive or personal material gain in mind. She applied for the benefits upon his death not for herself but for their son of tender age who was under her guardianship.

Pen- Imprisonment from 1 to 5 yrs. & a fine from P5,000 to P10,000

Article 179- Illegal Use of Uniforms or Insignia

1) Offender- any person

2) Elements:



i) offender publicly use of insignia, uniform or dress; and

ii) the insignia, uniform or dress pertains to an office not held by the offender pertains to a class of persons of which the offender is not a member.

Exact imitation is not necessary. Colorable resemblance is enough- calculated to deceive, especially those who are not familiar.

Use publicly or improperly- has no right to use it.

Insignia- badge.

FALSE TESTIMONY

FALSE TESTIMONY- is a declaration under oath of a witness in a judicial proceeding which is contrary to what is true, or to deny the same, or to alter essentially the truth.

False Testimony requires a criminal intent and cannot be committed through negligence. So, if it is due to error or good faith, it is not felonious. It could not be frustrated or attempted.

Reasons why false testimony is punished- Falsehood is ever reprehensible; but it is particularly odious when committed in a judicial proceeding, as it constitutes an imposition upon the court and seriously exposes it to miscarriage of justice.

Forms of False Testimony:

a) False Testimony in criminal cases (Arts. 180 & 181);

2) False Testimony in civil cases (Article 182); and

3) False Testimony in other cases (Article 183).

FALSE TESTIMONY AGAINST THE DEFENDANT IN CRIMINAL CASES:

ARTICLE 180- FALSE TESTIMONY AGAINST A DEFENDANT:

“Against the defendant”- means a false

testimony that tends to establish or aggravate the guilt of the accused and not the result that the testimony may produce.

Under this article, false testimony may still be committed even if the same is not considered or is not given any weight or even if the accused is acquitted.

The penalty depends upon the sentence imposed upon the accused in the criminal case where the false testimony was given except in

the case of a judgment of acquittal.

Penalties:

1) Reclusion Temporal – if the defendant in said case shall have been sentenced to Death;



2) Prision Mayor - if the defendant shall have been sentenced to Reclusion Temporal or Reclusion Perpetua;

3) Prision Correccional plus a fine not exceeding P1,000 - if the defendant shall have been sentenced to any other afflictive pen.

4) Arresto Mayor plus a Fine not exceeding P1,000 - if the defendant shall have been sentenced to a correctional penalty or a fine, or shall have been acquitted.

Art. 180 does not prescribe a penalty where the defendant in a criminal case is sentenced to a light penalty. False Testimony in this instance cannot be punished considering that a penal law is to be strictly construed.

Article 181- False Testimony Favorable To The Defendant

Intent to favor the accused is essential in this kind of false testimony. It is not also necessary that the false testimony given should directly influence the decision of acquittal.

The penalty provided under this article is less than that which is provided under Art. 180 because there is no danger to the life or liberty of the defendant. Independent evidence of falsity is not required for conviction.

Penalty- Arresto Mayor in its maximum period to Prision Correccional in its minimum period and a Fine not to

exceed P1,000 if the prosecution is for a felony punishable by an afflictive penalty, and the penalty of Arresto Mayor in any other case.

Testimony in favor of the def. – right after he testified falsely, the prescriptive period commences to run because the basis of the penalty on the false witness is the felony charged; while in testimony against the def., the prescriptive period will not begin to run as long as the case has not been decided with finality because the basis of the penalty on the false witness is the sentence on the accused testified against.

Article 182- False Testimony in Civil Cases

A) Elements:

1) the testimony must be given in a civil case;

2) the testimony must relate to the issues presented in said case;

3) the testimony must be false;

4) the false testimony must be given by the defendant knowing the same to be false;

5) such testimony must be malicious and given with an intent to affect the issues presented in said case.

Pen- depends upon the amount involved.

Article 183- False Testimony in Other Cases & Perjury under Solemn Affirmation



This is committed by any person who, knowingly makes untruthful statements and not being included in the preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires.

Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section.

Pen- Arresto Mayor in its max. period to Prision Correccional in its min. period.

Perjury

Perjury is the willful and corrupt assertion of falsehood under oath or affirmation administered by an authority of law on a material matter.

Elements:

1) Statement or affidavit upon material matter made under oath;

2) Before a competent officer authorized to receive and administer such oath;

3) Willful and deliberate assertion of falsehood by the offender;

4) The sworn statement containing the falsity is required by law (Pp. vs. Bautista- 40 O.G. 2491).

Material matter- means the main fact which is the subject of the inquiry, or any circumstance which tends to prove the fact, or any fact or circumstance

which tends to corroborate or strengthen the testimony relative to the subject of the inquiry, or which legitimately affects the credit of any witness who testified (U.S. vs. Estrana- 16 Phil. 520).

The word “material” is not limited to testimony bearing directly on the issue but includes collateral matter.

“Collateral” – testimony which although not direct proof upon the issues, yet has substantial bearing on the testimony relating to the issues.

The test is not whether the evidence was properly to be admitted but whether if

admitted it could properly influence the result of the trial.

Pp. vs. Banzil- Feb. 12, l960 – in an administrative proceeding for immorality wherein the accused testified that he was single although he was married, the falsity is not material because whether he is married or not, has nothing to do with the charge of immorality. (This is no longer applicable today. As under the civil service rules, if the parties are both single- there could be no immorality).

“ When the law so requires” does not mean that the sworn statement or affidavit must be required by law. The word “requires” is merely permissive, not mandatory. Reasonably interpreted, it means “ in cases in which the law so authorizes”. (Pp. vs. Angangco- G.R. No. 47693).



In a verified answer to a complaint filed in an ordinary civil case if false is not Perjury as the verification of the answer is not required by law.

Moreover, any statement in an appropriate pleading filed in court relevant to the issues in the case is absolutely privileged and may not be made the subject of a criminal prosecution.

Where the defendant executed an affidavit stating that he lost his driver’s license by virtue of which he was able to secure a new one, when in truth and in fact his driver’s license was confiscated by the authorities, it was held that

Perjury was committed (Pp. vs. Bautista- supra).

Unjustified statements in the Personal Data Sheet (PDS), a requirement under Civil Service Rules and Regulations in connection with employment in the government constitutes Perjury ( Inting vs. Sandiganbayan – L- 524166).

Two contradictory sworn statements are not sufficient to convict for Perjury because the prosecution must prove which of the two

statements is false, and must show that statement to be false by other evidence other than the contradictory statement (U.S. vs. Capistrano- 40 Phil. 902).

Distinction between False Testimony and Perjury:

1) False Testimony is given in the course of a judicial proceeding; whereas

Perjury is any willful and corrupt assertion of falsehood on a material matter under oath and not given in judicial proceeding;

2) False Testimony contemplates an actual trial where judgment of conviction or acquittal is rendered and not merely a preliminary investigation; whereas Perjury may be committed even during a preliminary investigation as well as in the making of a false affidavit under oath on a material matter when required by law.

Distinction between Perjury and Falsification of Documents:

1) Falsification- the documents may or may not be under oath; whereas in Perjury, the document must be under oath and required by law to be under oath;

2) Falsification –the contents of the document may be true but the signature is false; in Perjury, the contents of the document in its material aspect must be deliberately false.

Article 184- Offering False Testimony in Evidence

1) Offender: any person

2) Acts:

a) Offer in evidence of a false witness or testimony;

b) Offender knows such falsity; and



c) Offer was made in a judicial or official proceeding.

The felony is consummated the moment a false witness is offered in any judicial or official proceeding.

The penalty shall be that of False Testimony if the offer was made in a judicial proceeding; and that of Perjury, if made in an official proceeding.

Is Subornation of Perjury punished in the Code? – Subornation of Perjury no longer exists in our Revised Penal Code but the act is punished as plain Perjury under Article 183 in relation to Art. 17. The inducer becomes a Principal by Inducement and the one induced, is Principal by Direct Participation (Pp. vs. Padol- 66 Phil. 365).

Article 185 – Machinations, monopolies & combination (public auction & restraint of trade).

Arts. 190-194- Drugs- RA 9165 (SPL)

Arts. 195-199- Gambling & Betting ( Repealed and modified under PD 449, 483, 1602 & LOI 816)- (SPL)

ARTICLE 200- GRAVE SCANDAL-

is any highly scandalous act offensive to morals and good customs and committed publicly or within the

knowledge and view of the public (U.S. vs. Samaniego- 16 Phil.).

The act is deemed committed in public view because of the possibility of being witnessed by a third persons.

In conduct involving lasciviousness, it is grave scandal only when there is mutual consent. Because if done without her consent, then this is Acts of Lasciviousness.

The act should not be punishable under any other provisions of the Revised Penal Code.

Elems:

1) act is highly scandalous.

2) publicly committed or w/n public view & knowledge of the public

3) offends good decency & good customs

4) not expressly falling under any other article.

Pen- Arresto Mayor & Public Censure

Article 201- Immoral Doctrine, Obscene Pub.& Exh. & Indecent Shows

- amended by PD 960 & 969



1) Acts: publicly expound or proclaim doctrine openly contrary to public moral.

2) Offenders: a) authors of obscene literature, editors publishing the same;

b) those who in theatres, fairs, stage play exhibit indecent or immoral plays or shows;

i)) glorify criminals or condone crimes;

ii) serve no other purpose but to satisfy the market of violence;

iii) offend race or religion;

iv) prohibited drugs;

v) contrary to law, public order, good customs.

3) Those who shall sell, give away or exhibit films, prints, engravings, sculptures, literature which are offensive to morals.

Disposition of the prohibited articles – forfeited in favor of the government to be destroyed, after conviction. If acquitted, still to be forfeited in favor of the govt., to be destroyed after forfeiture proceedings will be conducted.

Pen- PM or a fine ranging from P6,000 to P12,000 or both.

If the offender is a govt. official – penalty shall be imposed in the maximum and in addition corresponding accessory penalties shall be imposed.

Comparison bt. RA 3060 and Art. 201-

RA 3060- provides that it shall be unlawful for any person or entity to exhibit or cause to be exhibited in a motion picture theatre or public place, any picture not duly passed by the MTRCB.

It is evident that the elements of the two offenses are different. The gravamen of the offense defined in RA 3060 is the public exhibition of any motion picture which has not been previously passed by the Board of Censors for Motion Pictures. The motion picture may not be indecent or immoral, but if its showing is not previously approved by the Board, then this constitutes a criminal offense. On the other hand, the offense punished in Art.

201 of the RPC is the public showing of indecent or immoral plays, scenes, acts or shows.

RA 3060 – Malum Prohibitum, while Art. 201 is Malum in Se (Pp. vs. City Court of Manila- September, l987).

Article 202- Vagrants & Prostitutes

A) Vagrants 1) W/o any apparent means of subsistence, who has physical ability to work but neglects to apply himself to some lawful calling.

2) Loiter in public or semi-public bldg.- wandering without visible means of support.

3) Idle or dissolute persons, ill-repute or pimps.



4) Loiter in inhab. or uninhab. places w/o justifiable purpose.

Vagrants – are persons, having no apparent means of subsistence, who has the physical ability to work, neglects to apply himself or herself to some lawful calling.

Prostitutes- women, who for money or profit, habitually indulge in sexual intercourse or lascivious conduct.

Penalty- AMe or a fine not exceeding P200

Recidivist- AMa in its medium period to PC in its min. per. or a fine ranging from P200 to P2,000 or both, at the discretion of the court.

Some sectors believe that bold actresses who, for money or profit, appear in the movie habitually playing the role of one who engages in sexual acts satisfy all the elements of the said provision. Worse, they do it in public view and in public places, whereas prostitutes do it in a private place. The male partner cannot be liable as a prostitute under this law.

Pres. Decree no. 1563- Mendicancy Law:

Mendicant- any person who has no visible and legal means of support or lawful employment & who is physically able to work but neglects to apply himself to some lawful calling and instead are begging as a means of living.

Habitual mendicants – can be convicted two or more times.

Exploited infant/minor- child 8 years & below who is used in begging or who accompanies a habitual beggar.

Pen- not exc. P500 or impris. not exc. 2 yrs. or both.

Person who gives alms- fine not exc. P20.00

Title 7- Crimes committed by Public Officers-

1) Malfeasance & Non-feasance in Office- (Articles 204-209)

2) Bribery – (Articles 210-212)

3) Frauds & Illegal Exactions & Trans. (Articles 213 – 216)

4) Malversation of Public Funds/Property- (Articles 217 -222)

5) Infidelity In the Custody of Prisoners-(Articles 223-225)

6) Infidelity In the Custody of Public Documents (Articles 226-228)

7) Revelation of Secrets (Articles 229-230)

8) Other offenses or Irregularities (Articles 231-245)

ARTICLE 203- Public Officers

- Any person, who by direct provision of law, popular election or appointment by competent authority shall take part of the performance of public functions in the Government of the Philippine Islands, or shall perform in the Govt., or any of its branches public duties as



employee, agent, or subordinate official of any rank or class.

Said article obliterates the standard distinction in the law of public officers between “officer” & “employee”.

Officers- from highest to the lowest rank (Maniego vs. People- April 20, l951).

Pp. vs. Cruz- Employees of UP- from janitors to the Members of the Board of Regents- Public Officers.

Malfeasance- performance of some act which ought not to be done.

Misfeasance- improper performance of some act which might lawfully be done.

Non-feasance- omission of some act which ought to be performed.

A) Dereliction of Duty- Judges-

ARTICLE 204- KNOWINGLY RENDERING UNJUST JUDGMENT-

Elements:

1) Offender is a judge;

2) Renders a judgment in a case submitted to him for decision;

3) Said judgment is unjust; &

4) Knows that said judgment is unjust ( Louis Vuitton S.A. vs. Judge Villanueva- Nov. l992).

Unjust judgment- contrary to law or not supported with evidence, or contrary to the standards of conduct prescribed by law.

A judge cannot be subjected to liability- civil, criminal or administrative- for any of his official acts, no matter how erroneous, as long as he acts in good faith.

It is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself. This concept

of judicial immunity rests upon consideration of public policy. It purpose being to preserve the integrity and independence of the judiciary (Dela Cruz vs. Concepcion- 54 SCAD).

In Mendoza vs. Villaluz- 106 SCRA- the court has held that it is a fundamental rule of long standing that a judicial officer when required to exercise his judgment or discretion is not criminally liable for any error he commits, provided he acts in good faith. That in the absence of malice or wrongful conduct, the Judge cannot be held administratively responsible for no one called upon to try the facts of interpret the law in the process of administering justice can be infallible in his judgment. To hold a judge administratively accountable for every erroneous ruling or decision he renders assuming that he has erred, would be



nothing short of harassment or would make his position unbearable.

In re: Joaquin Borromeo- 241 SCRA 405- The court has repeatedly and uniformly held that a judge may not be held administratively accountable for every erroneous order or decision he renders.

The administrative or criminal remedies are neither alternative or cumulative to judicial review where such review is available, and must wait on the result thereof.

Rendering knowingly unjust judgment refers to an individual judge who does so in any case submitted to him for decision and even then, it is not for the prosecutor to pass judgment on the unjustness of the decision but the proper appellate court, who has the authority to review the same. Until and unless there is such a final authoritative judicial declaration that the decision or order in question is “unjust” no, civil, criminal or administrative action against a judge concerned is legally possible or should be entertained for want of indispensable requisites.

Bonifacio Sanz Maceda cs. – the Ombudsman cannot act first on a criminal case filed against a judge in relation to his function, without first referring the case to the Supreme Court.

Article 204 has no application to the members of a collegiate court such as the Supreme Court or its Divisions, Sandiganbayan, Court of Appeals and Court of Tax Appeals, who reach their conclusion in consultation and

accordingly render their collective judgment after due deliberation ( In Re: Disciplinary action against Atty. Wenceslao Laureta- G.R. No. 63635- March 12, l987).

Art. 205- Judgment Rendered Thro’ Negligence

Elements:

1) Offender is a judge;

2) He renders a judgment in a case submitted to him for decision;

3) Said judgment is manifestly unjust; &

4) It was committed through inexcusable negligence.

Manifestly Unjust Judgment- is a judgment which cannot be explained with a reasonable interpretation or is a clear incontrovertible and and notorious violation of a legal precept. It must be patently contrary to law if rendered due to ignorance or inexcusable negligence.

Penalty – Arresto Mayor & Temporary Special Disqualification.

Art. 206-Unjust Interlocutory Order

- The offense may be committed by a judge in two ways:

1) By knowingly rendering an unjust interlocutory order-

Penalty – Arresto Mayor in its min. per. and suspension.



2) By rendering a manifestly unjust interlocutory order by inexcusable negligence or ignorance-Pen- Suspension.

Article 207- Malicious Delay in the Administration of Justice

- The judge to be guilty of this article maliciously delays the administration of justice.

The act must be committed maliciously with deliberate intent to prejudice a party in the case ( Magdamo vs. Pahimulin- 73 SCRA 110).

Pen.- PC in its minimum period.

Speedy Trial Act of l998RA 8493

Sec. 1- Time to prepare for trial – After the plea of not guilty, the accused shall have at least 15 days to prepare for trial. The trial shall commenced within 30 days from receipt of the pre-trial order (Sec. 6-Cir. 38-98).

Sec. 2- Continuous trial until terminated; postponements- Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause.

The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed 180 days from the

first day of trial, except as otherwise authorized by the Supreme Court (Sec. 8, Cir. 38-98).

The time limitations shall not apply where special laws or circulars of the SC provide for a shorter period.

(Exs. RA 4908- When the offended party is about to depart from the Phils. with no definite date of return – trial shall commence w/n 3 days from the date of arraignment;

Child Abuse cases – trial shall commence within 3 days from arraignment;

Violation of the Dangerous Drugs Law- trial is for 90 days, but decision making is only for 15 days.

Art. 208- Prosecution of offenses; Negligence & Tolerance

1) Offenders: a) Any public officer; or

b) Officer of the Law.

Officers referred to here- those whose function relate to instituting prosecution of offenders- Police officers, Prosecutors & Brgy. Captains.

2) Acts punished:

a) Maliciously refraining from institution of prosecution for the punishment of violators of the law; and

b) Tolerating the commission of offenses.



- Malice is an integral part. Lack of zeal or any delay in the performance of duties does not constitute the crime. There must be bad faith or criminal intent to favor the offender.

Pp. vs. Malabanan- 62 Phil. 786- Malice connotes that the action complained of must be the result of a deliberate intent and does not cover a mere voluntary act.

Art. 209- Betrayal of Trust by an Atty.; Revelation of Secrets-

A) Acts punished:

1) Malicious breach of professional duty;

2) Inexcusable negligence or ignorance;

3) Revelation of secrets learned in his professional capacity;

4) Undertaking the defense of the opposite party in a case without the consent of the first client whose defense has already been undertaken.

In acts 1 & 2- prejudice to the client is essential. It is not essential in the case of revelation of secrets or in the representation of conflicting interests.

To prejudice is equivalent to causing material or moral damage to the client.

Revelation of secrets signifies a communication of the same to another. The secrets which should not be revealed are not limited to those learned by the lawyer in connection with a case

in which he is intervening but includes all other secrets learned from a client in the course of professional relationship.

Are all informations received by the counsel from client classified as privileged?- No, a distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed, by the client. Corrollarily, it is admitted that the announced intention of a client to commit a crime is not included within the confidences which his attorney is bound to respect (Pp. vs. Sandiganbayan- July 1997- 84 SCAD).

For the application of the attorney-client privilege, however, the period to be considered is the date when the privileged communication was made by the client to the atty. in relation to either a crime committed in the past or w/ respect to a crime intended to be committed.

In other words, if the client seek his lawyer’s advice with respect to a crime that the former has therefore committed, he is given the protection, of a virtual confessional seal, which is the attorney-client privilege declares cannot be broken by the attorney without the client’s consent. The same privileged confidentiality does not attach with regard to a crime which a client intends to commit thereafter or in the future, and for purposes of which he seeks the lawyer’s advice.

In order that a communication between a lawyer and his client may be privileged,



it must be for a lawful purpose or in furtherance of lawful end. Every communication made to an atty. by a client for criminal purpose is a conspiracy or attempt at a conspiracy which is not unlawful to divulge, but w/c the atty. under certain circumstances may be bound to disclose in the interest of justice.

BRIBERY

Article 210 Bribery

- is the crime of the public officer who receives gift, present, offer or promise by reason or in connection with the performance of his official duties. It is the crime of the receiver. The crime of the giver is Corruption of Public Officers. Bribery requires concurrence of the will of the two parties, otherwise the crime cannot be consummated.

Kinds of Bribery:

A) Direct Bribery:

i) Offenders – public officers, (assessors, arbitrators, appraisal & claim commissioners, experts, or any other persons performing public duties.

ii) Acts: a) Agreeing to perform or performing an act pertaining to the duties of the office which constitutes a crime;

b) Accepting a gift in consideration of the execution of an act which does not constitute a crime;

c) Abstaining from the performance of official duties.

Elements:

1) Offender is a public officer (Art. 203);

2) He receives personally or through another, gifts, or presents or accepted offers or promises;

3) For the purpose of committing any of the acts mentioned in par. 3;

4) Such act relates to the exercise of official duties.

Ex. of act no. 1) – Stenographic Reporter agreed to tamper the TSN in consideration of the amount of P30,000 given to her. Crimes- Direct Bribery & Falsification. In this ex. It could also be that she already tampered the TSN (agreeing or performing).

The act need not be actually committed. Mere agreement to execute the act is sufficient. This is so, as the act to be performed constitutes a crime.

Ex. of act no. 2) In the placement of the vendors in a newly constructed market, has to be done through raffle. But for those who gave P10,000 to the one in-charge of the raffling, they were immediately given the good placement. The act of placing those who paid at the front portions of the market, is not a crime, but definitely it is unjust.

In this instance, the money must be accepted already because the act does not constitute a crime. Mere agreement will not suffice.



Ex. of no. 3-employee of OBO bec. of the amt. given didn’t conduct ocular insp. of the bldg.& issued Bldg. Permit.

Is there Attempted or Frustrated Bribery?

1) U.S. vs. Tan Gee -7 Phil. 738- Offer of a Chinaman to allow his companion to land without investigation was refused- Att. Bribery.

2) Pp. vs. Diego Quinn- G.R. No. 42653- the money handed by the offeror was returned by the public official – Frustrated Bribery.

It will be noted that in these cases, the accused were both private individuals (so this would have been Corruption of Public Official).

3) Pp. vs. Elago – CA- “upon a careful review of our jurisprudence we are unable to find a single case of frustrated bribery, taking into consideration the nature of the offense. We are bound to deduce that this crime is not subject to frustration.

Penalty- no. 1 act- PM in its min and med pers. and a fine of not less than 3x the value of the gift;

no. 2 act- PC- in its medium period & a fine of not less than twice the value of such gift.

no. 3 act- PC in its max. per. to PM in its min. per. & a fine not less than 3x the value of the gift.

In addition to such imprisonment term- Special Temporary Disqualification.

Article 211- Indirect Bribery

Indirect Bribery- is committed upon acceptance by the public officer of gifts offered to him by reason of his office. It is not necessary that the public officer should do any particular act or even promise to do an act as it is enough that he accepts the gifts offered to him by reason of his office (Victoriano vs. Alvior- March l978).

The gift is made to anticipate a favor from the public officer in connection w/ his official duties.

Distinction between DB & IB-

1) DB- the public officer must do something in consideration of the gift;

IB- there is no such requirement;

2) DB- Mere agreement consummates the crime of DB if the act agreed upon amounts to a crime; IB- the public officer must accept the gift to consummate the crime.

Article 211-A-Qualified Bribery

1) Offender – public officers entrusted with law enforcement.

2) Acts: a) public officer refrains from arresting or prosecuting an offender who has committed a crime punishable by RP &/or Death in consideration of any offer, gift or present;

b) the public officer asks or demands such gifts or present.



3) Pen- a) the pub. officer shall suffer the pen. of the offense which was not prosecuted; b) Death.

Article 212- Corruption of Public Officials

- the person giving the gift or making the offer or promise in direct or indirect bribery commits this felony.

Pen- same as that of the public officer corrupted.

PD 749 – Granting Immunity To Givers of Bribes.

- voluntarily gives information about

any corrupt transactions of an officer in violation of the RPC or the Anti- Graft Law and testifies in the case subsequently filed.

Elements:

1) info.(or testimony) refers to the consummated violation;

2) info. is necessary for conviction;

3) info. is not yet in the possession

of the Prosecutor/ State;

4) info. can be corroborated in other material points; and

5) informant has not been convicted of crimes involving moral turpitude.

The immunity shall refer only to the transaction the IT (info. & testimony) relates. If he lies – liable for Perjury.

Frauds & Illegal Exactions & Transactions

Article 213- FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES-

1)FRAUDS: Acts: a) Public Officers entering into a contract or agreement with any interested party and defrauded the govt. (dealing with supplies- Supply Officers; signatories of contracts – Heads of Office, Administrative Officer, Regional Director, Cashier or Treasurer; entrusted w/ adjustment or settlement of accounts- Accountants).

2) ILLEGAL EXACTIONS-

Illegal exaction can only be committed by a collecting officer or a public officer whose official duty is to collect payments due to the government. The crime is not in respect to misappropriation of funds (malversation) but the violation of the rules of collection.

1) Offenders: - public officers in charge of the collection of taxes, licenses, fees and other imposts.

2) Acts: a) Demanding an amount different or larger than due. This crime is committed even if the debtor refuses to give.

What is the status of the excess amount – private or public funds?

U.S. vs. Lopez- Municipal Treasurer collected greater fees for the branding of cattle, by means of deceit and misappropriates the difference between the legal amount and the excess- Estafa, because the fund is private.



Pp. vs. Policher- 60 Phil. 771- If the excessive fees which were accounted for were misappropriated, the public officer is

liable for Illegal Exaction for demanding and collecting excessive fees and for Malversation, for the excess. The difference between the fees collected and the legal fees forms a part already of the public funds as those accounted for, hence, it cannot be Estafa. The whole amount becomes public fund because issuing receipt is the operative act making the whole fund public fund.

This provision is not applicable in the case of the BIR and BOC Officials because they are guided by other laws. For the BIR officials, they are guided by the National Internal Revenue Code (NIRC), while the BOC officials, they are guided by the Tariff and Customs Code. Under these laws, these public officials are allowed to collect amounts different from the fixed rates since interests and surcharges are imposed. Moreover, they are authorized to compromise penalties.

- Frauds- the crime committed is the mere agreement as long as the purpose is to defraud.

- Illegal Exaction- no. 1- committed by mere demand, even if he did not receive the amount demanded. But if the sum was received without demanding, the felony is not committed, but if given as a sort of a gift because of his office, he can be held liable for Indirect Bribery.

Pen- PC in its med. per. to PM-min. per. or a fine ranging from P200 to P10,000.

Articles 214, 215, 216- read ( Anti-Graft and Corrupt Practices Act).

ARTICLE 217- MALVERSATION OF PUBLIC FUNDS OR PROPERTY-

Elements:

1) Offender is a public officer;

2) He has custody or control of the funds or property by reason of the duties of his office;

3) The funds or property involved are public funds or property for which he is accountable; and

4) He has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence, permitted the taking by another person of such funds or property (Villanueva vs. Sandiganbayan- G.R. No. 95627- Aug. 16, l991 & Quinon vs. Sandiganbayan- April l997- 82 SCAD).

Acts punished:

1) Appropriate public funds or property- (uses it for her/his own personal purpose);

2) Misappropriate public funds or property ( use it for a purpose other than for which it is intended); or take the public funds or property –( get it without the consent of the govt.)

This is Intentional Malversation.

3) Consenting, or through abandonment or negligence, permitting any person to



take the same. This is Culpable Malversation.

A) Offenders- public officers, who by virtue of their position/duties are accountable for the public funds or property:

Exs.of public officers accountable by reason of their positions: Cashiers, Treasurer, Collection Officers.

By reason of duties: Heads of Offices- RD, ARD, Administrative Officers.

An accountable officer under Article 217 is a public officer, who, in the discharge of his office, receives money or property of the government which he is bound to later account for. It is the nature of, not the nomenclature used for, or the relative significance of the title, the position which controls the determination (Tanggote vs. Sandiganbayan- 55 SCAD).

The nature of the duties of the public officer and not the importance of his position is the controlling factor. He may be a clerk but if he receives money or property belonging to the government for which he is bound to account, then he is an accountable officer .

-Can private persons be held liable for Malversation: Yes- in two instances:

1) Article 222- If such private person in any capacity whatever is in charge of insular, provincial or municipal funds, revenues or property – ex. Where a private person is constituted a custodian of the fund or property subject of seizure or attachment, as such seizure or

attachment brings about the property in custodia legis.

Malversation is committed when the property attached to secure a debt is placed in the possession of the defendant to which it belongs with the consent of the plaintiff and who sells the same without delivering the proceeds to the plaintiff since the property is not the subject of a mere private bailment but of a judicial deposit. This gives the depository a character equivalent to that of a public official and breach of his obligation is similar to violation of the obligations imposed upon public officers (U.S. vs. Rastrono- 1 Phil. 22).

2) If such private person takes a direct participation in the commission of the crime of Malversation by a public officer or cooperates in the commission of the same (conspiracy).

3) If such private person acts as accomplice or accessory.

2) Public funds – money

Public properties – vehicles, firearms, tables, chairs, computers, checks, letters of credit, negotiable notes, or any personal property whether fungible or non-fungible.

Private funds or property may also be the subject of Malversation- Article 222 provides that malversation may be committed upon property placed in the custody of public officers by reason of their office even if such property belongs to a private individual. Even if the funds belong to a private individual they are



impressed with the characteristics of public funds or partakes of the characteristics of public funds when they are entrusted to an accountable public officer for his official custody- exs. Funds of Red Cross, Anti TB, Girl Scout and Boy Scout. (Pp.vs. Velasquez- 72 Phil. 98).

- Also private funds sent to the addressee through the telecom office (Pp. vs. Castro- 61 Phil. 861)

- Pp. vs. Carpio- Jan. 31, l963- where a municipal treasurer cashed a private check with public funds and the check was dishonored, Malversation was committed.

Malversation through negligence- not all abandonment or negligence constitutes malversation, but only such that approximates intent and malice.

- Thus, a defendant who, as Municipal Treasurer, had a large stock of rice under his charge, and who, in good faith, sold them on credit as he needed swift disposal, cannot be held liable for Malversation through Negligence. To render such element a basis for conviction, the negligence must be positively and clearly shown to be inexcusable, approximating malice of fraud (Pp. vs. Bernas & Pp. vs. Pili).

Enriquez vs. Pp. – 331 SCRA- Evidence of shortage is necessary before there could be any taking, appropriation, conversion, or loss of public funds that would amount to Malversation.

In cases of Malversation of Public Funds, the mere failure of a public

officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, is prima facie evidence that he has put such funds to personal use.

To justify conviction for Malversation, the prosecution has only to prove that the accused received public funds or property and that he could not account for them or did not have them in his possession and could not give a reasonable excuse for the disappearance of the same.

Dumagat vs. Sandiganbayan- July, l992-en banc & Pondevida vs.Sandiganbayan-467 SCRA 219- an accountable officer may be convicted of Malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in his accounts which he has not been able to explain.

Felicilda vs. Grospe- July, 1992- In Malversation, payment or indemnification or reimbursement of, or compromise as to, the amounts or funds malversed, affects only the civil liability of the offender but does not extinguish his criminal liability;

Penanuevo, Jr. vs. Sandiganbayan – 224 SCRA 92; Kimpo vs. Sandiganbayan- 232 SCRA 62 and Gano vs. Leonen- 232 SCRA 102.

Doldol vs. People – 470 SCRA 373 (2005) – Partial restitution of the cash shortage



is an implied admission of misappropriation of the missing funds.

Arturo Quizo vs. Sandiganbayan- 149 SCRA 108-(April 6, l987)- Restitution w/n 7 days is considered reasonable.

Is demand an element of Malversation?- No. Demand merely raises a prima facie presumption that missing funds have been put to personal use. The demand itself is not an element of, and not indispensable to constitute, Malversation. Even without a demand, Malversation can still be committed when enough facts are extant to prove it.

Pp. vs. Pepito- Feb. l997- 78 SCAD- Even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or culpa present in the offense is only a modality in the perpetration of the felony (Cabello vs. Sandiganbayan- May 14, l991).

The defense of good faith is a valid defense in a prosecution for Malversation for it would negate criminal intent on the part of the accused. To constitute a crime, there must be criminal intent (Pp. vs. Pepito- Feb. l997- 78 SCAD).

Pen: 1) PC in its med. & max. per. – if the amount involved does not exceed P200;

2) PM in its min. & med. Periods- if the amount involved is more than P200 but does not exceed P6,000;

3) PM in its max. per. To RT in its min. per. – if the amount involved is more than P6,000 but is less than P12,000;

4) RT in its med. & max. per. – if the amount involved is more than P12,000 but is less than P22,000;

5) RT in its max. per. To RP – if the amount exceeds P22,000

6) Perpetual Special Disqualification & a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

Article 218- Failure of Accountable Officer To Render Accounts

Elements:

1) Offender is a public officer whether in the service or separated therefrom;

2) He is accountable for public funds or property;

3) He is required by law or regulation to render account to the Auditor; and

4) He failed to do it for a period of two months after demand is rendered.

This is a felony by omission and misappropriation is not necessary. The



reason for this is that the law does not so much contemplate the possibility of malversation as the need of enforcing by a penal sanction the performance of the duty incumbent upon every public employee who handles govt. funds. The design of the law is to impart stability to the good order and discipline which should prevail in the organization and workings of the public service

by punishing the employee who should disobey a law or regulation, lawfully made by a competent officer for the rendition of accounts ( U.S. vs. Saberon – 19 Phil. 391).

Pen- PC in its min. period or a fine ranging from P200 to P6,000 or both.

Said act can be a basis for filing of a criminal case for Failure To Liquidate under PD 1445.

Article 219 – Failure of a Public Officer To Render Accts. Before Leaving the Country

Elements:

1) Offender is a public officer, whether in active service or not;

2) He is accountable for public funds and property;

3) He leaves or attempts to leave the country w/o requisite clearance from the Auditor that his accounts have been settled.

Article 220- Illegal Use of Public Funds or Property

Elements:

1) Offender is an accountable public officer;

2) He applies public funds or property under his administration to some public use; and

3) The public use for which the public funds or property were applied is different from the purpose for which they were originally appropriated.

- This felony is known as “Technical Malversation” and is a penal sanction to the constitutional provision that “no money shall be paid out of the treasury except in pursuance to an appropriation made by law (Art. VIII, Sec. 18, Par. 1, 1987 Constitution).

-Damage is not an essential element and the offender derives no benefit. However, if no damage or embarrassment to the public service resulted, the penalty is a fine only from 5 up to 50% of the sum misapplied.

Similarity w/ Malversation under Art. 217:

- In both felonies, the offenders are accountable public officers.

Distinction:

1) In Art. 217- the offender derives personal benefit from the proceeds of the crime; whereas in Art 220- the offender derives no personal gain or benefit from the commission of the act;



2) In Art. 217- the conversion of the public funds or property is for the personal interest of the offender; whereas in Art. 220- the object to which the fund or property is applied is also public but only different from that provided by the law.

To constitute this crime, there must be a law or ordinance appropriating public funds or property for a specific purpose which the accused has violated

(Pp. vs. Montemayor, et al.- L-17449- August 30, l962)

Palma Gil vs. Pp. l77 SCRA – In this case, it is shown that the CRBI fund is a general fund, and the utilization of this fund specifically for the concreting of the Barangay Jalung Rd. was merely an internal arrangement between the DPWH and the Barangay Captain and was not particularly provided for by law or ordinance. There is no dispute that the money was spent for a public purpose- payment of the wages of laborers working on various projects in the in the municipality. It is pertinent to note the high priority which laborers’ wages enjoy as claims against the employers’ funds and resources. In the absence of a law or ordinance appropriating the CRBI fund for the concreting of the Barangay Jalung Road, the petitioner cannot be declared guilty of the crime of Illegal Use of Public Funds ( Parungao vs. Sandiganbayan- May l991).

Article 221- Failure to Make Delivery of Public Funds or Property

1) Offender: Public Officers –under obligation to make payments.

2) Acts punished:

a) Failed to make payments despite his obligation;

b) Despite being ordered to do so.

If the failure is caused by his using the public funds – Malversation.

If due to his using the funds for another purpose- Technical Malversation.

Rationale- gives rise to the presumption of illegal use of public funds/property.

INFIDELITY OF PUBLIC OFFICERS

Kinds of Infidelity:

1) Infidelity in the custody of prisoner

2) Infidelity in the custody of documents

3) Revelation of secrets.

A) INFIDELITY IN THE CUSTODY OF PRISONERS: This crime may be committed through Dolo (Article 223) or Culpa (Article 224).

A) Infidelity in the custody of prisoners:

ARTICLE 223- CONNIVING WITH OR CONSENTING TO EVASION-

1) Offender – Public Officer who has the custody of the prisoner.



2) Acts: connives/consents to the escape of the prisoner (i) detention –PC min. & TSD

ii) by final judgment- PC med to max

& TSD to PSD

ARTICLE 224- EVASION THROUGH NEGLIGENCE

1) Offender – Public officer – charged with the custody of the prisoner.

2) Act- Through negligence, the prisoner escaped

Pp. vs. Quisel – guard allowed the prisoners to run after the carabao & the prisoners escaped – deliberate-non-performance.

Mere leniency/ laxity- not infidelity- adm. Liability.

Laxity – non-performance- criminal offense.

When the offender allowed a prisoner to go to the bathroom to relieve himself it was deemed as mere laxity in the handling of prisoners which did not give rise to infidelity through negligence. Negligence is one which approximates malice or deliberate non-performance of duty. He may be charged administratively but not criminally (Pp. vs. Nava- 36 O.G. 316)

Rodillas vs. Sandiganbayan – May l988- As a police officer who was charged with the duty to return the prisoner directly

to jail, the deviation from his duty was clearly a violation of the regulations. In the first place. It was improper for the petitioner to take lunch with the prisoner and her family when he was supposed to bring him to jail. He even allowed the prisoner and her husband to talk to each other at the request of a co-officer. It is the duty of any police officer having custody of a prisoner to take necessary precautions to assure the absence of any means of escape. A failure to undertake these precautions will make his act one of definite laxity or negligence amounting to deliberate non-performance of duty.

B) Infidelity in the custody of documents.

ARTICLE 226- REMOVAL, CONCEALMENT OR DESTRUCTION OF DOCUMENTS-

1) Offender – a) Public officer

b) custody/in- charge of the

records/ documents

c) by reason of his office.

2) Acts: i) Abstracts (remove)- appropriation of document for illicit purpose;

ii) Destroys- to make the document useless/obliteration (ex. Clerk of Court spent the marked money used as evidence- not misappropriation. Even if he restitutes the amount he is still liable bec. the document itself cannot be restituted);



iii) Conceals – not forwarding to its destination (not necessary that it be secreted).

The damage or prejudice is not limited to pecuniary damage. When there is delay in rendering public service because the document is not located, there is damage. There is also the loss of trust in government service.

Kataniag cs. – even if the officer is still in the building, but already out of his office- removal is consummated.

A private person who conspires with a public official is liable for this crime but if he acts by himself, this is Estafa.

Documents – have the same meaning as in Article 171.

It is not necessary that the act of removal be coupled with proof of intention to conceal. The felony is committed in three ways namely: removal, concealment or destruction. The word “or” is disjunctive signifying disassociation and independence of one thing from each other.

Penalty : a) If there is serious damage –PM & Fine not exceeding P1,000.

b) If the damage is not serious – PC-min-med period & a Fine not exceeding P1,000.

ARTICLE 227- OFFICER BREAKING SEAL

1) Offender- Public officer, who has custody of papers or property, which are sealed by proper authorities.

2) Acts- He breaks the seals or permits them to be broken without any authority.

Damage is not an element. The crime may be committed through negligence.

ARTICLE 228- OPENING CLOSED DOCUMENTS

1) Offender- Public Officer, who is entrusted with the custody of closed papers, documents or objects.

2) Acts- He opens or permits the same to be opened without proper authority.

If the closed document is sealed- and in opening it the seal is broken, then the act is punished under Art. 227.

The closed document must be entrusted to the public officer because if not, then he could not be held liable under this article ( Pp. vs. Lineses).

ARTICLE 229- REVELATION OF SECRETS BY AN OFFICER

1) Offender – Public officer, who knows the secret by reason of his office or he has in his charge papers or copies of papers which should not be published.

2) Acts- He reveals said secret without authority or wrongfully delivers said papers.



The secrets referred to in this article are those which have an official or public character, the revelations of which may prejudice public interest. They refer to secrets relative to the administration of government. This does not include military secrets or those which may affect the security of the State, as this constitutes Espionage.

Damage is not an essential element, altho a higher penalty is imposed where the act has caused serious damage to public interest.

ARTICLE 230- REVEALING SECRETS OF PRIVATE PERSONS

1) Offender – Public office, who by reason of his office, came to know of the secrets of private persons.

2) Acts- he reveals such secrets without authority or wrongfully delivers said papers.

ARTICLE 231- OPEN DISOBEDIENCE

1) Offenders – Judicial or executive officers

2) Acts- refuses openly to execute judgment, decision or order of superior authority.

3) Penalty – AMa – med. per. to PC –min. per.& TSD & a Fine not exceeding P1,000

Art. 232- Disobedience to Order of Superior Officer when said Order was suspended

1) Offender – any public officer

2) Elements:

a) Order from a superior officer;

b) he orders the suspension of the execution of the order of his superior officer

c) superior disapproved the suspension

d) disobeys the suspension & refuses to execute the order.

3) Penalty- PC- min to med per. & PSD

ARTICLE 233- REFUSAL OF ASSISTANCE

1) Offender – Public Officer

2) Acts- he refuses to lend cooperation towards the administration of justice or other public service, despite demands.

Damage is not an essential element, but serious damage will cause the imposition of higher penalty.

If there is serious damage- AMa-min to PC min. per. & PSD & Fine not exceeding P1,000;

If no serious damage- AMa-med to max. per. & Fine of P500.

Ex. – Investigator of the NBI – refuses to testify in court resulting to the dismissal of the case; or a Medico-Legal Officer who also failed to testify in court purposely.



Article 234-Refusal to Discharge Elective Office

The penalty of Arresto Mayor or a fine not exceeding 1,000 pesos, or both, shall be imposed upon any person who, having been elected by popular election to a public office, shall refuse without legal motive to be sworn in or to discharge the duties of said office.

ARTICLE 235-MALTREATMENT OF PRISONERS

1) Offenders – Public officers/employees, in-charge of the prisoners.

2) Acts: a) Overdo the correction and handling of a prisoner, by the imposition of a punishment not enshrined by law;

b) inflict such punishment in a cruel & humiliating manner.

Pen.. – PC-med to PM min.

If the purpose of the maltreatment is to extort confession or obtain information – PM-min. & TAD & Fine of P6,000 plus another liability for Physical Injuries (“Third Degree”).

These will constitute two crimes, not complex.

Prisoner – a) convict by final judgment

b) detention prisoner.

Maltreatment – refers to physical, moral, psychological and other kinds (cruel & inhuman).

Prisoners here are equated to chattels- note- that they are in the section of Infidelity in the custody of documents & not in crimes against persons.

Rationale- we are government of laws and not of men.

Violation of civil liberties – necessarily undermines confidence in the government and resort to torture indicates lack of mental alertness and activity on the part of the investigators (Pp. vs. Saluday).

If the person is not a convict or a detention prisoner – crime could either be Coercion or Physical Injuries.

ARTICLE 236-ANTICIPATION OF PUBLIC DUTIES

1) Offender – Public official by appointment or election, who is entitled to hold office.

2) Act- Assumed office without oath or bond.

3) Pen – Fine – P200 to P500.

ARTICLE 237- PROLONGING PERFORMANCE OF PUBLIC OFFICE

1) Offender – Public officer

2) Act- Continues to hold office beyond the period allowed of him by law.

ARTICLE 238- ABANDONMENT OF OFFICE/POSITION



1) Offender – Public Officer

2) Act- Tendered his resignation

- not yet accepted

- left/abandons his office

- detriment of public service.

Crime becomes qualified if the public official abandoned the office to evade the discharge of his duties of preventing or prosecuting or punishing crimes.

Distinction between Dereliction (Art. 208) and Art. 238:- Art. 208- official does not abandon his office; he merely fails to prosecute; while in Art. 238- he abandons his office so as not to perform his duties.

ARTICLE 239- USURPATION OF LEGISLATIVE POWERS-

1) Offender – Public officer

2) Acts- Encroaches the powers of the legislative branch;

- makes rules or regulations beyond the

scope of his authority or by repealing a law.

3) Pen- PC –min. per.TSD & a Fine not exceeding P1,000.

ARTICLE 240- USURPATION OF EXECUTIVE FUNCTIONS

1) Offender- Judge

2) Acts- assumes the powers pertaining to the executive branch;

- obstructs the latter in the exercise of his functions.

3) Pen- AMa med. To PC min. per.

ARTICLE 241- USURPATION OF JUDICIAL FUNCTIONS.

1) Offender – Officers of the executive branch.

2) Acts- assumes judicial powers/ functions

- obstructs the execution of orders or decisions.

Difference between these 3 arts. and that of Art. 177 (Usurpation of Official Functions/Authority)- Art. 177- usurpation of official functions by any public officer; while in here- this refers to interference among the three branches of government (Executive, Legislative & Judiciary).

ARTICLE 242- DISOBEYING REQUEST FOR DISQUALIFICATION

1) Offender – public officer

- there is a proceeding before him

- he is requested to refrain from taking cognizance

- he continues such proceeding.

2) Pen- AMa & Fine P500



ARTICLE 243- ORDERS OR REQUEST BY EXEC. OFFICER TO ANY JUDL OFF.

1) Offender – Executive Officer

2) Acts- address or orders or suggests to any judicial authority relative to a case or business coming within the exclusive jurisdiction of the court.

3) Pen- AMa- and a Fine not exceeding P500.

ARTICLE 244- UNLAWFUL PPOINTMENTS

- committed by a public officer who knowingly nominates or appoints a person w/ lacking legal qualification.

Pen – AMa & Fine of P500

ARTICLE 245- ABUSES AGAINST CHASTITY

A) Elems. of par. 1-

1) Offender is a public officer

2) There is a matter pending before him in which a woman is interested, or w/ respect thereto, he is required to submit a report or consult with the superior.

3) He solicits or makes an indecent or immoral advances upon said woman.

Par. 2- a) Offender – warden or any public officer in charge with the custody of a prisoner or persons under arrest;

b) Acts- He solicits or makes immoral or indecent advances to a woman under his custody.

If the person solicited is the wife, daughter or sister in law or relatives within the same degree by affinity, the act punished under par. 2 becomes qualified. The mother is not included.

Crime is committed by mere solicitation.