Salva Lecture Notes Criminal Law 2

7/29/2019 Salva Lecture Notes Criminal Law 2

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Lecture Notes of Fiscal Salva

SUMMARY:

ART 114. Treason

Treason is a crime that could ONLY be committed when the Philippines is at warwith a foreign country.

Nobody could be a traitor to this country UNLESS the country is at war.

Two ways of committing Treason:

1. Levying war against the government

2. By adhering to the enemy, giving them aid and comfort.

When asked what are the elements of treason:1. The offender is either a Filipino or a resident alien.

2. That the Philippines is at war.

3. Offender commits ANY of this two acts:

a. Levying war against the government

b. Adhering to the enemy, giving them aid and comfort.

The only distinction between levying war in the crime of treason and levyingwar in rebellion is that the PURPOSE of the traitor or offender is to overrun thegovernment with the help of foreign country or to DELIVER the country to the handof the foreign country.

*In rebellion there is no foreign country. It is not to be delivered to any foreigncountry. Unlike in treason where the purpose is EITHER to deliver the country to thehands of a foreign country OR topple the government with the aid of a foreigncountry.

Now, LEVYING WAR does not mean merely the enlistment of people who wants tofight the government. It is required that there must be actual assembly of thesemen for the common purpose of carrying out the treasonous design against thegovernment.

Mere enlistment will not constitute levying war. Mere sympathy would to the enemywould not make one a traitor.

For Example, A Filipino who became a person who favored the food, customs,habit does not make him a traitor. Mere sympathy does not make him a traitor. Thesecond element lacks. The overt act! Meaning, giving aid or comfort muststrengthen the enemy countries strength or effort in order to defeat the defendingcountry.


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What about the Filipino businessman running nightclubs, prepared for theparty of enemy military troops giving them prettiest women , best food andentertainment? As ruled by the Supreme Court, it does not materially increase theefforts of the enemy to defeat the Philippine government. Thus, ACQUITTED.

NOW! What is QUANTUM OF EVIDENCE? In other words what are the two

ways in proving treason? 1) TWO WITNESS RULE 2) CONFESSION IN OPEN COURT.

The TWO WITNESS RULE -must be testimony of two(2) witnesses to THE SAMEOVERT ACT.

Now! Article 115, In Crim 1, There are two concept of conspiracy and proposal tocommit a felony. 1) The concept of being a crime in itself 2) the concept of merely amanner of incurring criminal liability.

NOW YOU MAY BE ASKED:

Define Conspiracy to commit treason, Define Proposal to commit treason.

There is conspiracy to commit treason whenever the Philippines is at war, whenevertwo or more persons, which may be citizen or a resident alien, who come to anagreement concerning the commission of treason either by levying war against thegovernment or adhering to the enemy, by giving them aid and comfort and decidedto commit it.

Remember! In conspiracy to commit treason there is no overt act. It is enough todecide and design to commit treason. But once there is already an overt act, it is nolonger conspiracy but TREASON itself.

There is proposal to commit treason whenever the Philippines is at war with aforeign country, and that one, an offender, may be a Filipino or a resident alien, has

decided to commit treason, either of those ways that I mentioned earlier and theoffender proposed its execution to some other persons or person.

ONLY ONE WITNESS is necessary to prove it!

Article 116

Any person, WITHOUT BEING A FOREIGNER, have personal knowledge of conspiracyagainst the government and fail to disclose as soon as possible to the PROVINCIALGOVERNOR or PROVINCIAL PROSECUTOR or MUNICIPAL or CITY MAYOR or the CITYPROSECUTOR.

Note: only citizens of the Philippines can be an offender in this art. This would

be one of the questions I will ask.

SOOO it is a crime of OMISSION for failure to report or disclose as soon as possiblethis conspiracy to commit treason against the government.

However, if the offender already committed treason and a person conceal of thatcommission failed to report the same to the authorities mentioned, HE COULD NOTBE GUILTY of Misprision of treason.


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Article 117 Espionage

Now, this crime may be committed in crimes of peace or in times of war. The firstparagraph, any person without any lawful authority shall enter any warship, ormilitary establishment or reservation for the purpose of obtaining or securing dataor information which are of confidential character referring to the defense of the

country.

TAKE NOTE of the wording,those information or data which was to be obtainedinside those warship, military reservation or camp, SHOULD be data or informationwhich are of CONFIDENTIAL CHARACTER and which must PERTAIN to the defense ofthe Philippines.

Is it necessary that the offender must have actually secured or taken thoseinformation or data?

NO! It is not! That it could be proven the offenders purpose of obtaining thoseinformation or data of confidential character concerning the defense of the country.

Now, In the second, They are public officers holding position in the government. Andthey have custody of those data or information and then he delivers it to therepresentative of a foreign country.

COMMONWEALTH ACT 616 , oh there is such a crime of conspiracy to commitespionage.

The violation of Neutrality, offender is not a participant in any war involving two ormore countries in the world but the Philippines is not involved. He wanted tomaintain his neutrality in this war going on between and against several nations orcountry. Once that policy or rules or regulation for the maintenance of the neutralityof the Philippines in that war is violated that makes the violator liable for that crime,

VIOLATION OF NEUTRALITY

Then we also have that crime of flight to enemys country. Committed by a citizenor a resident alien, when there is prohibition to that enemy territory or enemycountry in violation of such prohibition he flies therein or attempt to go to thatforeign enemy country, it is NOT necessary that he actually flies or reach thatenemy territory it is not that there is prohibition, THE MERE ATTEMPT by any of thecitizen of the Philippines to fly to that enemy country, makes it CRIMINALLY LIABLE.

That is art 121.

Now the last one, PIRACY Article 122, Now there are two provisions in the RPCpertaining to piracy, Art 122 defines piracy which is considered simple piracy orsimple mutiny.

Piracy is the deprivation, or robbery in the high seas done without lawful authoritywit animo morandi and in the spirit of universal hostility. So by that definition, thecrime of piracy is against the whole world.

Now, What is mutiny? The mere creation of promotion in the vessel or ship indefiance to the authority of the ship captain.. That is mutiny. While Piracy connotesthat there must be taking of property whether belonging to the ship or to thepassengers or crew members.


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Mutiny does not give idea of taking property, when they rob during the course, Thatis mutiny only. But in Piracy, there must be attacking the vessel, boarding thevessel or shall seize the vessel on any of the country.

Article 123 QUALIFIED PIRACY

Alright when the piracy is committed whether in high seas or in Philippine watersbut it is attended by any of the circumstances enumerated in Art 123 of the RPCthat is o longer simple piracy but it shall become Qualified piracy. Now where thePirates:

1) Leave their victims without means of saving themselves

2) Accompanied by murder, homicide, physical injuries and rape.

Note: So there is no complex crime of piracy with murder ah! Or piracy with rape!NO!

It also means that if the mutiny is accompanied by any of those circumstances

enumerated above, that shall be considered as QUALIFIED MUTINY.

P.D 532 which define piracy in Philippine waters, by merely inserting Philippinewaters. Yun lang dinagdag. Piracy that could be committed both in the high seasand Philippine waters provided that the pirates are outsiders in the vessel.

People vs. Tuling making piracy also punishable if committed in Philippine water.

Question:

Thus, if a ship is sailing from manila and one or two passengers by way of violenceor intimidation divested fellow passengers or crew men of their personal propertyand YOU WILL BE ASKED what crime or crimes are committed?

Answer: if it is committed on board ship or goods fishing vessels are considered forpurposes of this crime of piracy. As long as it begins in Philippine water, the crimecommitted is piracy.

Bear that in mind that P.d.532 and art.122 and 123, In the RPC, only strangers ofthe ship can be pirates, however, in P.D. 532, ANYONE! Not only strangers.

3 kinds of Arbirary Detention:

1. Arbitrary detention by detaining a person without legal ground. Ar.124

2. Delay in the delivery of detained persons to the proper judicial

authorities.Art.125

3. Delay in Release.Art.126

Only public officer could become liable for Arbitrary Detention. BUT not all publicofficers embraced in the Art.203 could commit arbitrary detention.

Now are the particular public officers who could be liable of arbitrarydetention?


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Answer: Only those public officers who had been given direct power to arrest, likethe POLICEMAN, the NBI, Barangay tanod and barangay captain.

QUESTION: If X a city treasurer, one of his janitors was suspected of being theauthor of stealing the personal belongings of the employees, held the janitor lockedfr 48hrs in one of the vacant rooms, WHAT IS THE CRIME COMMITTED?

Answer: it is ILLEGAL DETENTION

Now, usual ground for arbitrary detention is warrantless arrest.

QUESTION: Distinguish between two felonies, Arbitrary detention and Unlawful orillegal arrest.

Yan! Itatanong ko yan!

QUESTION: What are the legal ground for detention?

ANSWER: Under art.124, detention of those who are suffering from mental illness

and other conditions requiring confinement or institution for the treatment of thesame person, if arrested, there is no illegal detention.

ARTICLE 125, ARBITRARY DETENTION BY DELAYING DELIVERY.

It is the duty of the police officer to immediately file the case to the court. However,the fiscal is important, because no information will reach the court without theinformation duly signed by the fiscal. So there is so called the INQUESTPROCEEDING.

The police man should file the case:

Within 36 hours if the penalty is above 6 years

Within 18 hours if the penalty does not exceed 6 years.

Within 12 hours if the penalty is 30 days or of a light felony.

If he fails to file or deliver the person or file the case before the inquest proceeding,then the police could be charged with the proper judicial authority.

BUT TAKE NOTE! That provision only applies to warrantless arrest.

If there is already a warrant of arrest, THERE is NO required number of hours.

Article 126, speaks that a detained person shall be delivered to the proper judicialauthority for the filing of the proper complaint or information. So once, the case isalready pending, that provision is not applicable if there is already a warrant ofarrest anytime maybe two or three days because the obligation of the police whoarrest a person by virtue of a warrant is only to make a report to the judge


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informing the judge that the person subject of the warrant is already in custody, sothat the court can now schedule the arraignment.

When the police officer is prevented by some lawful cause or insuperable cause,One of these lawful cause is during Saturday, Sunday or Holiday. So the policemancould not be faulted and charged of the crime because it is not his own liking.

Article 126(3) THE RELEASE OF A DETAINED PRISONER,

Three situations:

1. Delay in the execution of the judicial or executive order for the release of theperson.

2. Delay in the service

3. Delay the compliance of that order.

Article 127, EXPULSION

Also committed by a public officer.. What if ginawa ng PRIVATE INDIVIDUAL? Oh,that is COERCION(Art.286).

How committed?

A public officer, WITHOUT LAWFUL AUTHORITY, shall expel a person from thecountry. WITHOUT AUTHORITY! Take note.

QUESTION:

When a public officer said, HOY UMALIS KA NA DYAN, WALA KANG KARAPATAN DITOTUMIRA, MAGBAGO KA NA NG BAHAY!...... Oh that is Expulsion.

QUESTION:

What if he is a private individual? Like Oi karapatan naming pakinabangan bahayko, Alis dyan! because the person cannot pay the rentals. Oh that is NOTExpulsion, That is grave coercion.

GRAVE COERCION is a crime committed by any person without lawful authorityand by means of violence and intimidation shall compel another to do somethingagainst his will, whether right or wrong.

Now, what is the legal way of expelling a a person to change residence? That isexpropriation proceeding.

TAKE NOTE OF THE ABOVE DISTINCTION: You might be asked of that. Makikipagtaloka, mali ka dyan..


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VIOLATION TO DOMICILE in relation to TRESPASS TO DWELLING:

QUESTION:

What are the crimes know as crime of domicile?

ANSWER:Articiles 128, 129, and 130. Dont forget it!

HOW committed:

The offender is a public officer, the public officer is without proper judicial authority,that proper judicial authority mixed without a validly issued search warrant.

What acts constitute violation of domicile under art.128?

1. He enters the dwelling of another against the will of the other.

2. He enters against express prohibition to enter or implied prohibition to enter.

A policeman without official authority, without search warrant, said, can I enter yourhouse? And Pedro said NO! but despite the prohibition, the policeman barged in tothe house. THAT IS VIOLATION TO DOMICILE. Another example of expressprohibition is the sign of NO TRESPASSING!.

How about implied prohibition? Enters through a window. It shall be consideredagainst the will because no one is expected to enter that. What is a window for? Forthe mere citizen like me, window is good for seeing the beautiful faces and legs ofwomen, for women, oh for seeing handsome faces of those macho men.

If he is a private individual, then his crime is TRESPASS TO DWELLING.

But if it is through the door, without permission or consent, it might not, unless it ismiddle of the night where the door was forgotten to be locked.

Now, in the middle of the night, somebody intrudes into the privacy of the housewithout committing any crime at all. Wala pang nakikitang overt act kung ano angkanyang purpose it will be a crime of trespass to dwelling. But the moment he enterand pulls any personal belongings inside and the he tries to get out, then the crimeis attempted robbery.

QUESTION:

A policeman asked Mang pedro, Mang Pedro pwede ba ako makapasok sa bahay?

May search warrant ka ba?Wla po kaya nga po himihingi ako ng permiso sayo eh.Alright enter. But the moment he enters, he conducted search In every corner of thehouse of mang pedro. Oh he found caliber 45 pistol. He asked if licensed. Wala po.Alright, sumama ka sakin, you are under arrest for violation of RA 8294 Illegalpossession of unlicensed firearm. Will it prosper?

ANSWER:


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NO! He conducted search without previous consent, If you allow the policeman toenter, does your permission carry with it permission to search? DIFINITELY NOT!

That will be a violation of his constitutional right against unreasonable search. Thepoliceman is also guilty of violation of domicile. Since there is violation of domicile,because of unreasonable search all those that are confiscated shall be consideredfruit of a poisonous tree and not be considered admissible in evidence in the court

proceedings.

QUESTION:

When a public officer surreptitiously enter the house of Mang Pedro, so Mang Pedrodemanded him to leave. HOY! Mamang pulis bakit ka nandito sa bahay ko? Wala kapermisso! UMALIS KA! But the police didnt leave, Is there violation of domicile?

ANSWER:

If he does not leave, then that will be the time he will be liable for the violation ofdomicile.

If he leaves immediately, there is no violation of domicile because the law said, if hedoes not leave until demanded to do so, that will be the effect.

Additional question:IS HE GUILTY OF ANY CRIME???

Answer? Will you not be annoyed, vexed, and irritated? UNJUST VEXATION!

QUESTION:

Raiding policemen arrived at the house of a gambling lord, oh they showed awarrant, OK you can search my house. When the raiding policemen found nothing,probably the owner was tipped off, the team leader began axing the walls until itwas totally destroyed.. Now what is the crime?

ANSWER:

OH! There is violation of domicile by exceeding or employing excessive severity inthe conduct of the search. But because that act resulted to damage then it might bea crime of malicious mischief. Two crimes yan.

EH papanu kung wala sila nakuha but they pocket monet money by destroying thecabinet, taking all the wrist watches???? OH! Aside from malicious mischief, there isalready ROBBERY. There are two crimes.

Eh kapag fake yung warrant? Or procuring a warrant? Oh there are two violations

and prosecutions. One is ART.129, Maliciously procuring a search warrant and theother one is making a false affidavit which is PERJURY.

ARTICLE 130!

Now here is proper judicial authority. There is a search warrant. He enters thepremises to be searched but the house owner or any member of his family is outand they do not have any witnesses of the same locality and they conductedsearch. NOW WHAT IS THE CRIME COMMITTED? VIOLATION OF ARTICLE 130! That is


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search conducted without a witness. Now if the owner of the house or any occupantthereof is present then the law is not violated. So if they imported two witnessesfrom Bulacan but they conducted a search in Pasay, THAT is a violation of Article130. Because the law is very clear, that requirement is that the two witnesses comefrom the same locality.

Oh! Itong mga police meron ng ready yan na sachet ng marijuana or shabu as thecase may be. Bigla nalang may malalaglag dun sa cabinet. Pagbukas nila oh meronkang shabu ditto. THAT IS PLANTING OF EVIDENCE.

DISSOLUTION, INTERUPTION OF A PEACEFUL MEETING. Again the offender is apublic officer, now he interrupts, disturb or dissolve the meeting. But remember itmust be a peaceful meeting to make the public officer liable. He is without lawfulauthority to dissolve that peaceful meeting. There are three acts covered by art.131. That is the first act. Second is by hindering any person from joining any lawfulassociation and the last act by preventing or hindering any person from addressingtheir petition for their grievances or correction of abuses.

CRIMES AGAINST PUBLIC ORDER:QUESTION: Distinguish treason and rebellion.

Answer1: treason is a crime against national authority while Rebellion is crimeagainst public order. Treason could be committed in two ways while rebellion iscommitted in one way.

Rebellion- there is arm public uprising, that is rising publicly and taking armsagainst the government and establish their own government.

Treason- even without public uprising the mere adhering to the enemy or givingcomfort to the enemy where the purpose is to deliver the government or the

country to hands of the invading foreign country.

QUESTION: Give atleast four distinction between the crime of rebellion and coup detat.

Treason Rebellion Coup d etat Sedition

Nature ofcrime

Againstnationalsecurity

Against publicorder

Public order Public order

Overt acts Levying war Public uprising Swift attack Rising publicly


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against thegovernment oradherence andgiving aid orcomfort toenemies

and taking uparms againstthegovernment

againstauthorities,military camp,networks orpublic utilities,or other

facilities

andtumultuously(seeenumeration inArt 139 of RPC)

Purpose Deliver thegovernment tothe enemyDURING WAR.

Overthrow thegovernmentand establishtheir own.

Seizing anddiminisihingstate power

Seeenumeration inarticle.

Person in authority any person directly vested with jurisdiction, whether as anindividual or as a member of some court or governmental corporation, board orcommission.

EX. Barangay Captain, Barangay Chairman, Teachers, professors, lawyers. IN THEACTUAL PERFORMANCE OF THEIR PROFESSIONAL DUTIES OR ON THE OCCASION OFSUCH PERFORMANCE ARE PERSONS IN AUTHORITY.

Agent of person in authority any person who by direct provision of law or byelection or by appointment by a competent authority, is charged with themaintenance of public order and the protection and security of life and property.

EX. Barrio Councilman, Barrio Policeman, Barangay leader, Any person whocomes to the aid of persons in authority.

Evasion of Service of sentence

1. That the offender is a convict by final judgment

2. That he is serving his sentence which consists in deprivation ofliberty(destierro included)

3. That he evades the service of his sentence by escaping during the service ofhis sentence.

QUESTION:

Michelle, a convicted rapist, Ivy, also a rapist but still has a pending appeal inthe Court of appeals, escaped the prison with the help of Tricia, a friend of ivy. Nowwhat are the crimes committed?


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ANSWER:

Michelle he committed the crime of evasion of service of sentence

Ivy he is not liable for any crime.

Tricia he committed the crime of Delivering a prisoner from jailQUESTION:

Now what about the officer in charged of their custody, lets say WARREN?What if sinuhulan ni tricia?

ANSWER:

Then Warren committed the crime of INFIDELITY IN THE CUSTODY OFPRISONERS. And kapag tinangap nya yung suhol he is liable for DIRECT BRIBERY.

QUASI RESIDIVISM:

Quasi-residivism - is a special aggravating circumstance where a person, afterhaving been convicted by final judgment, shall commit a felony before beginningto serve such sentence or while serving the same.

HOW FORGERY IS COMMITTED:

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

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

Article 179 Illegal use of insignia or uniform.

QUESTION:

Suppose women working as GRO always report for work nightly using of Saint paulCollege, for the custormer to believe or think that they are kolehiyala, When theschool learned of this they complained that they are illegally using of their schoolwhich besmirched the reputation of St. Paul. Will thay be liable?

ANSWER:

NO!

Only uniform that represent authority like uniform of policemen or the vest of thepriest of the church. This represents authority in the religion which they represent.And individual who is not a priest and goes around using that vest could be heldliable under article 179.


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FALSIFICATION BY PUBLIC OFFICER, employee or notary or ecclesiasticalminister.

ELEMENTS:

1. That the offender is a public officer, employee or notary public.

2. That he takes advantage of his official position.

a. He has duty to make or to prepare or otherwise to intervene in thepreparation of the document;

b. He has the official custody of the document which he falsifies.

3. He falsifies the document by:

a. Counterfeiting or imitating any handwriting, signature or rubric.

b. Causing it to appear that persons have participated in any act orproceeding when they did not in fact so participate.

c. Attributing to persons who have participated in an act or proceedingstatements other than those in fact made by them.

d. Making untruthful statements in a narration of facts.

e. Altering true dates.

f. Making any alteration or intercalation in a genuine document whichchanges its meaning.

g. Issuing in authenticated form a document purporting to be a copy of anoriginal document when no such original exits, or including in such copy astatement contrary to, or different from that of the original.

h. Intercalating any instrument or note relative to the issuance thereof in aprotocol, registry or record book..

4. In case the offender is an ecclesiastical minister, the act of falsificationmay affect the civil status of persons.

FEIGNING to represent by false appearance when no original exists.

COUNTERFEITING intent or attempt to IMITATE.

PERJURY (ART 182)

Two ways of committing perjury:

1. By falsely testifying under oath

2. By making false affidavit.


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QUESTION:

Is there a crime known as subordination of perjury?

ANSWER:

Before the enactment of our Revised Penal Code, we have a crime of subordinationof perjury.. However upon enactment of the RPC, that provision was notincorporated in our Revised Penal Code. In what way? If a person presents a falsewitness knowing that the witness is false and what he is going to state is false, heshall be penalized as the same penalty for false testimony or perjury as the casemay be.

NOW ARTICLE 210 DIRECT BRIBERY:

Three ways of committing direct bribery:

1. By performing or agreeing to perform an act that constitute a crime inrelation to the performance of the duty of that public officer in considerationof a gift, present, or promise.

So it is not the actual performance but the mere agreeing to perform that act.

2. By accepting a gift in consideration of the execution of an act which does notconstitute a crime in connection with the performance of his official duty

3. By agreeing to refrain or by refraining, from doing something which it is hisofficial duty to do in consideration of a gift or promise.

*Temporary performance of public functions is sufficient to constitute a person a

public officer. A private person may commit this crime only in the case in whichcustody of prisoners is entrusted to him.

The third type of bribery and prevaricacion are similar offenses, both consisting ofomissions to do an act required to be performed, In direct bribery however, a gift orpromise is given in consideration of the omission.

Article 211-A QUALIFIED BRIBERY

Elements:

1. That the offender is public officer entrusted with law enforcement

2. That he refrains from arresting/ prosecuting an offender for crimepunishable by reclusion perpetua and/or death

3. In consideration of any offer.


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Art. 212. Corruption of public officials

Elements:

1. That the offender is makes offers or promises or gives gifts or presents to apublic officer

2. That the offers or promises are made or the gifts or presents given to a publicofficer, under circumstances that will make the public officer liable for directbribery or indirect bribery.

Anti Graft and Corrupt Practices ACT (RA. No. 3019) - suhol

PLUNDER (RA 7080)- Ill gotten wealth

Art. 211 Indirect Bribery.

Now the offender is a public officer. He received a gift and accept it by reason of hispublic office. For instance in the birthday of the judge, a person, a wealthybusinessman goes to the office and greeted the judge. Judge happy birthday. Dahilmabuti kang tao may dala akong gift sayo. Ipinakita yung susi ng BMW, ito angregalo ko sayo isang BMW. Now what crime is committed? It is Indirectbribery. The wealthy businessman will also be liable that is consummatedcorruption of public official.

Article 246 Parricide.

A brother kills his brother and then the policeman charged the offender with a crime

of parricide. THAT IS WRONG.

WHO MAY BE GUILTY OF PARRICIDE?

Elements:

1. That a person is killed

2. That the deceased is killed by the accused

3. That the deceased is the:

a. Father, mother or

b. Child whether legitimate or illegitimate

c. Legitimate other ascendant or other descendant

d. Legitimate spouse

QUESTION:


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If a child is born between couple who are merely living in together as husband andwife without the benefit of marriage, this child grew under the care of the paternalgrandfather, when the child lets say Alexis, the grandson killed the grandfather,what is the crime committed?

ANSWER:

Homicide. WHY???? Because the grandchild is an illegitimate child of his parentsand therefore his relationship with his grandfather is illegitimate.

QUESTION:

What if the child is born within wedlock and he is a legitimate child, his relationshipwith his other ascendant the grandparents is also legitimate. What is the crime?

ANSWER:

PARRICIDE. But if illegitimate it is not covered by Parricide.

What if adopted?

Homicide! Why? Because the relationship between the father and the adopted sonis merely creation of law. That is a relationship by operation of law. The relationshipspoken here are all blood relationship in the direct line whether upward ordownward. It should be natural blood relationship in the direct line.

Now! Killing a spouse! There must be a valid marriage.

If a husband and a wife is legally separated and the husband kills the wife, is thereparricide? Yes! Legal separation does not severe the marriage life.

If the marriage is declared null and void, the tie is severed, there is no moremarriage that exist between them. Now if the former husband kills the former wife?

Then that is plain murder or homicide.

Now suppose may treachery? Will that be considered as a qualifying circumstance?NO! because it is not necessary that the killing be attended by a qualifyingcircumstance to constitute parricide. It will only be a generic aggravatingcircumstance.

Article 247 Death or physical injuries under exceptional circumstances.

If a husband kills a wife while in the act of sexual intercourse, he could not be

charged with death under exceptional circumstances because Article 247 NEVERDEFINES CRIME!

Now what is Article 247?

A provision of law which creates a special extenuating circumstance which ifpresent in the of the other spouse will not be penalized for the penalty of parricideor murder or killing the paramour because it becomes a special extenuating


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circumstance. Now! Notwithstanding the fact that he could not be penalized forparricide or murder, What is the penalty??? DESTIERRO!!!

QUESTION:

What is the nature of destierro?

ANSWER:

It is not to be understood strictly as a punishment because the intention of the lawin providing that destierro as penalty is to give protection to the person who havekilled the other spouse from the revenge or retaliation that may come from therelative pr sympathizer of the wife who was killed or the paramour who was killedby the spouse. It is a form of protection.

Also applicable to parent who surprised the daughter below 18years who are stillliving with them in the act of sexual intercourse with her lover.

The killing should be immediately after the incident.

The law says in the act of sexual intercourse. So when the husband surprises thewife and the paramour only committing lascivious acts prelude to sexualintercourse. The supreme court, it is not justified to kill the other spouse or theparamour if there was only prelude to the sexual act.

There is an obiter dictum that if the circumstance is such that the husband whosurprised the other committing in the act where the paramour is on top of the wifeboth naked although he could not see if there was sexual intercourse, if hehonestly believe that there was an act of sexual intercourse or had justbeen committed, he may reasonably inflict injury or kill those victims.

ELEMENTS:

1. A legally married person or parent surprises his spouse or daughter in the actof committing sexual intercourse with another person

2. He/ she kills any or both of them or inflicts upon any or both of them anyserious physical injury in the act or immediately thereafter

3. He has not promoted or facilitated the prostitution of his wife or daughter, orthat he has not consented to the infidelity of the other spouse.

The killing must be the direct by-product of the rage of the accused.

The daughter must be single.

QUESTION:

A girl below 18, but married, was caught by his father having sexual intercoursewith a boy. The father kills both girl and boy. Will the father be entitled to thisextenuating circumstance?

ANSWER:


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NO! Dont say the marriage is null and void because she is below 18. Nobody couldinterpret the validity of marriage. The law requires that there must be a judicialdeclaration of nullity of marriage. Meaning only the court could interpret the validityof the marriage not the husband or the wife to be entitled to it.

If the husband promotes the prostitution of the wife or the parent promotes or

facilitates the prostitution of the daughter, they are not entitled to this specialextenuating circumstance.

QUESTION:

Suppose in the judgment imposing the penalty of destierro the court pronounce civilindemnity in favor of the relative of those persons whom the husband had killed. Isthe indemnity valid?

ANSWER:

It is valid.the offender is exempt from criminal liability but is not exempt from civilliability.

Documents

Salva Lecture Notes Criminal Law 2