Crim Midterms
Crim Midterms
Art. 7. When light felonies are punishable. Less grave felonies – 1 month and 1 day – 6 years
(2) According to the stages of their execution Circumstances affecting criminal liability
Justifying circumstances
Under Article 6., felonies are classified as
attempted felony when the offender commences 1. Affects the act, not the actor
the commission of a felony directly by overt acts, 2. Act complained of is considered to have been done
and does not perform all the acts of execution within the bounds of law; hence, it is legitimate
which should produce the felony by reason of and lawful in the eyes of the law
some cause or accident other than his own 3. No crime – no criminal
spontaneous desistance; frustrated felony when 4. No criminal liability as well as civil liability
the offender commences the commission of a
Exempting circumstances
felony as a consequence but which would produce
the felony as a consequence but which 1. Affect the actor, not the act
nevertheless do not produce the felony by reason 2. Act complained of is actually wrongful, but the
of causes independent of the perpetrator; and, actor acted without voluntariness. He is a mere
consummated felony when all the elements tool or instrument of the crime
necessary for its execution are present. 3. There is a crime; however, there is absence of dolo
or culpa; therefore, no criminal
4. There is civil liability for the wrong done. But there
(3) According to their gravity is no criminal liability
a. XPN: no criminal and civil liability –
paragraphs 4 and 7 of art. 12
Under Article 9, felonies are classified as grave
felonies or those to which attaches the capital Art. 11. Justifying circumstances. Those wherein the acts of
punishment or penalties which in any of their the actor are in accordance with law, hence, he is justified.
periods are afflictive; less grave felonies or those There is no criminal and civil liability because there is no
to which the law punishes with penalties which in crime.
their maximum period was correccional; and light
1. Self defense
felonies or those infractions of law for the
a. Elements:
commission of which the penalty is arresto menor.
i. Unlawful aggression – is a
physical act manifesting danger
to life or limb; it is either actual
Instigation v. Entrapment or imminent
1. Must exist at the time
Instigation the defense is made
ii. Reasonable necessity of the
The criminal plan or design exists in the mind of the means employed to prevent or
law enforcer with whom the person instigated repel it
cooperated iii. Lack of sufficient provocation on
the part of the person defending
himself
2. Defense of relative proportion to the benefit which may have
a. Elements: been received
i. Unlawful aggression i. Civil liability is not based on the
ii. Reasonable necessity of the act committed but on the benefit
means employed to prevent or derived from the state of
repel the attack necessity
iii. In case provocation was given by ii. The accused will not be civilly
the person attacked, that the liable if he did not receive any
person making the defense had benefit out of the state of
no part in such provocation necessity
b. Relatives entitled to the defense: 5. Fulfillment of duty or lawful exercise of a right or
i. Spouse office
ii. Ascendants a. Elements:
iii. Descendants i. That the accused acted in the
iv. Legitimate, natural or adopted performance of a duty or in the
brothers or sisters lawful exercise of a right or office
v. Relatives by affinity in the same ii. That the injury caused or offense
degree (2nd degree) committed be the necessary
vi. Relatives by consanguinity within consequence of the due
the 4th civil degree performance of the duty, or the
c. If the person being defended is already a lawful exercise of such right or
second cousin, you do not invoke defense office
of relative anymore. It will be defense of 6. Obedience to a superior order
stranger. This is vital because if the person a. Elements:
making the defense acted out of revenge, i. There is an order
resentment or some evil motive in killing ii. The order is for a legal purpose
the aggressor, he cannot invoke the iii. The means used to carry out said
justifying circumstance of the relative order is lawful
defended is already a stranger in the eyes
of the law. On the other hand, if the Art. 12. Circumstances which exempt from criminal
relative defended is still within the liability:
coverage of defense of relative, even
though he acted out of some evil motive, 1. An imbecile or insane person, unless the latter has
it would still apply. It is enough that there acted during a lucid interval
was unlawful aggression against the 2. Minor – under special law
relative defended, and that the person 3. Accident (Damnum Absque Injuria) – any person
defending did not contribute to the who, while performing a lawful act with due care,
unlawful aggression causes an injury by mere accident without fault or
3. Defense of stranger intention of causing it
a. Elements: a. Elements:
i. Unlawful aggression i. A person is performing a lawful
ii. Reasonable necessity of the act
means employed to prevent or ii. Exercise of due care
repel the attack iii. He causes injury to another by
iii. The person defending be not mere accident
induced by revenge, resentment iv. Without fault or intention of
or other evil motive causing it
b. A relative not included in defense of b. Exempt from criminal and civil liability
relative is included in defense of stranger 4. Irresistible force – any person who acts under the
4. State of necessity compulsion of an irresistible force
a. Any person who, in order to avoid an evil a. Elements:
or injury, does an act which causes i. That the compulsion is by means
damage to another, provided that the of physical force
following requisites are present: ii. That the physical force must be
i. That the evil sought to be irresistible
avoided actually exists iii. That the physical force must
ii. That the injury feared by greater come from a third person
than that done to avoid it 5. Uncontrollable fear – any person who acts under
iii. That there be no other practical the impulse of an uncontrollable fear of an equal
and less harmful means of or greater injury
preventing it a. Elements:
b. The person for whose benefit the harm i. That the threat which causes the
has been prevented shall be civilly liable in fear is of an evil greater than, or
at least equal to that which he is a. Necessary that the offender shall have
required to commit served out his sentence for the first
ii. That it promises an evil of such sentence
gravity and imminence that the b. Previous and subsequent offenses must
ordinary man would have not be embraced in the same title of the
succumbed to it code
6. Lawful or insuperable cause – any person who c. Not always an aggravating circumstance
fails to perform an act required by law, when 2. Recidivism
prevented by some lawful or insuperable cause a. Enough that final judgment has been
a. Elements: rendered in the first offense
i. That an act is required by law to b. Offenses must be embraced in the same
be done title
ii. That a person fails to perform c. Always aggravating
such act
iii. That his failure to perform such *** Habitual Delinquency – when a person within a period
act was due to some lawful or of 10 years from the date of his release or last conviction
insuperable cause of the crimes of serious or less serious physical injuries,
robbery, theft, estafa or falsification is found guilty of any
Kinds of mitigating circumstances of said crimes a third time or oftener.
1. Generic – generally applicable to all crimes Art. 19. Accessories are those who, having knowledge of
2. Specific – apply only to specific crimes (ignominy – the commission of the crime, and without having
for chastity crimes; treachery – for persons crimes) participated therein, either as principals or accomplices,
3. Qualifying – those that change the nature of the take part subsequent to its commission in any of the
crime (evident premeditation – becomes murder) following manners:
4. Inherent – necessarily accompanies the
1. By profiting themselves or assisting the offender
commission of the crime; it is an element of the
to profit by the effects of the crime;
crime committed (evident premeditation in theft,
2. By concealing or destroying the body of the crime,
estafa)
or the effects or instruments thereof, in order to
*** Recidivist – one who at the time of his trial for one prevent its discovery;
crime, shall have been previously convicted by final 3. By harboring, concealing, or assisting in the
judgment of another crime embraced in the same title of escape of the principals of the crime, provided the
the RPC accessory acts with abuse of his public functions
or whenever the author of the crime is guilty of
*** Reiteracion or Habituality – that the offender has been treason, parricide, murder or an attempt to take
previously punished for an offense to which the law the life of the Chief Executive, or is known to be
attaches an equal or greater penalty or for two or more habitually guilty of some other crime.
crimes to which it attaches a lighter penalty
*** Crime committed is kidnapping for ransom. Principal
Reitracion v. Recidivism was being chased by soldiers. His aunt hid him in the ceiling
of her house and aunt denied to soldiers that her nephew
1. Reiteracion had ever gone there. When the soldiers left, the aunt even
gave money to her nephew to go to the province. Is aunt
criminally liable? – No. One who is not a public officer and 2. The commitment of a minor to any of the
who assists an offender to escape or otherwise harbors, or institutions mentioned in Art. 80 and for the
conceals such offender, the crime committed by the purposes specified therein
principal must be either treason, parricide, murder or 3. Suspension from the employment of public office
attempt on the life of the Chief executive or the principal is during the trial or in order to institute proceedings
known to be habitually guilty of some other crime. 4. Fines and other corrective measures which, in the
exercise of their administrative disciplinary
*** However, under PD No. 1829, the aunt may be held powers, superior officials may impose upon their
criminally liable but not as an accessory. PD No. 1829 subordinates
penalizes obstruction of apprehension and prosecution of 5. Deprivation of rights and the reparation which the
criminal offenders. Here there is no specification of the civil laws may establish in penal form
crime to be committed by the offender for criminal liability
to be incurred for harboring, concealing or facilitating the Correlating art. 24 with art. 29
escape of the offender, and the offender need not be the
principal. Under art. 24, preventive imprisonment of an
accuse who is not yet convicted is not a penalty
*** If the person in a public officer, the nature of the crime Yet, art. 29, if ultimately the accused is convicted
is immaterial. What is material is that he used his public and the penalty imposed involves deprivation of
function in assisting escape liberty, provides that the period during which he
had undergone preventive detention will be
*** Where the crime committed by the principal was deducted from the sentence unless he is one of
robbery or theft, such participation of an accessory brings those disqualified under the law
about criminal liability under PD No. 1612 (Anti-Fencing If he signed an undertaking to abide by the same
Law).Mere possession of any article of value which has been rules and regulations governing convicts, then it
the subject of robbery or theft brings about the prima facie means that while he is suffering from preventive
presumption of “fencing”, and he is considered a “fence” imprisonment, he is suffering like a convict, that is
why the credit is full
Art. 20. Accessories who are exempt from criminal liability.
But if the offender did not sign an undertaking,
The penalties prescribed for accessories shall not be
then he will only be subjected to the rules and
imposed upon those who are such with respect to their
regulations governing detention prisoners. As such,
spouses, ascendants, descendants, legitimate, natural and
he will only be given 80% or 4/5 of the period of his
adopted brothers and sisters, or relatives by affinity within
preventive suspension
the same degrees, with the single exception of accessories
falling within the provisions of paragraph 1 of the next *** Preventive imprisonment – the incarceration
preceding article. undergone by a person accused of a crime which is not
bailable, or he cannot afford to post bond.
Art. 21. Penalties that may be imposed. No felony shall be
punishable by any penalty not prescribed by law prior to ***Subsidiary imprisonment – the personal penalty
its commission. prescribed by law in substitution of the payment of fine
embodied in the decision when the same cannot be
*** Nullim crimen, nulla poena sine lege – there is no
satisfied because of the culprit’s insolvency.
crime when there is no law punishing the same.
*** Bond to keep the peace – imposed as a penalty in
Art. 22. Retroactive effect of penal laws. Penal laws shall
threats
have a retroactive effect insofar as they favor the persons
guilty of a felony, who is not a habitual criminal, as the *** Bail bond – posted for the provisional release of a
term is defined in Rule 5 of Article 62 of this Code, person arrested for or accused of a crime
although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving Art. 39. Subsidiary penalty. If the convict has no property
the same. with which to meet the fine mentioned in paragraph 3 of
the preceding article, he shall be subject to a subsidiary
Art. 23. Effect of pardon by the offended party. A pardon personal liability at the rate of one day for each eight
of the offended party does not extinguish criminal action pesos, subject to the following rules:
except as provided in Art. 344 of this Code; but civil
liability with regard to the interest of the injured party is 1. If the principal penalty imposed be prision
extinguished by his express waiver. correccional or arresto and fine, he shall remain
under confinement until his fine referred to in the
Art. 24. Measures of prevention or safety which are not preceding paragraph is satisfied, but his subsidiary
considered penalties. The following shall not be imprisonment shall not exceed 1/3 of the term of
considered as penalties: the sentence, and in no case shall it continue for
more than one year, and no fraction or part of a
1. The arrest and temporary detention of accused
day shall be counted against the prisoner
persons, as well as their detention by reason of
2. When the principal penalty imposed by only a
insanity or imbecility, or illness requiring their
fine, the subsidiary imprisonment shall not exceed
confinement in a hospital
6 months, if the culprit shall have been
prosecuted for a grave or less grave felony, and Art. 48 applies only to cases where the Code does
shall not exceed 15 days, if for a light felony not provide a specific penalty for a complex crime
3. When the principal imposed is higher than prision Does not apply when the law provides one single
correccional, no subsidiary imprisonment shall be penalty for single complex crime like the ff:
imposed upon the culprit (composite crimes)
4. If the principal penalty imposed is not to be o Robbery with homicide
executed by confinement in a penal institution, o Robbery with rape
but such penalty is of fixed duration, the convict, o Kidnapping with serious physical injuries
during the period of time established in the o Rape with homicide
preceding rules, shall continue to suffer the same Composite crime – one in which substance is made
deprivations as those of which the principal up of more than one crime, but which in the eyes
penalty consists of the law is only a single indivisible offense; also
5. The subsidiary personal liability which the convict know as SPECIAL COMPLEX CRIME
may have suffered by reason of his insolvency Plurality of crimes – consists in the successive
shall not relieve him, from the fine in case his execution by the same individual of different
financial circumstance should improve criminal acts upon any of which no conviction has
yet been declared
Art. 48. Penalty for complex crimes. When a single act Continued crimes – refers to a single crime
constitutes 2 or more grave or less grave felonies, or when consisting of a series of acts but all arising from one
an offense is a necessary means for committing the other, criminal resolution; although there is a series of
the penalty for the most serious crime shall be imposed, acts, there is only one crime committed, so only
the same to be applied in its maximum period. one penalty shall be imposed
The 2 or more grave or less grave felonies must be Art. 49. Penalty to be imposed upon the principals when
the result of a single act, or an offense must be a the crime committed is different from that intended. In
necessary means to commit the crime cases in which the felony committed is different from that
which the offender intended to commit, the ff rules shall
*** Complex crime – one crime only as there is only one
be observed:
criminal intent
1. If the penalty prescribed for the felony committed
2 kinds of complex crime:
be higher than that corresponding to the offense
1. Compound crime – single act constitutes two or which the accused intended to commit, the
more grave or less grave felonies penalty corresponding to the latter shall be
a. Requisites: imposed in its maximum period
i. That only one single act is 2. If the penalty prescribed for the felony committed
committed by the offender by lower than that corresponding to the one
ii. That the single act produces: which the accused intended to commit, the
1. 2 or more grave felonies penalty for the former shall be imposed in its
2. 1 or more grave and one maximum period
or more less grave 3. The rule established by the next preceding
felonies paragraph shall not be applicable if the acts
3. 2 or more less grave committed by the guilty person shall also
felonies constitute an attempt or frustration of another
2. Complex crime proper – when an offense is a crime, if the law prescribes a higher penalty for
necessary means for committing another either of the latter offenses, in which case the
a. Requisites: penalty provided for the attempted or the
i. That at least 2 offenses are frustrated crime shall be imposed in its maximum
committed period.
ii. That one or some of the offenses
Graduated scale of penalties in Art. 71:
must be necessary to commit the
other Indivisible penalties:
iii. That both or all the offenses must o Death
be punished under the same o Reclusion perpetua
statute
Divisible penalties
Notes: o Reclusion temporal
o Prision mayor
No complex crime when one of the offenses is o Prision correccional
penalized by a special law o Arresto mayor
When in the definition of a felony, one offense is a o Destierro
means to commit the other, there is no complex o Arresto menor
crime o Public censure
No complex crime when one offense is committed o Fine
to conceal another
Art. 62. Effect of the attendance of mitigating or the date of his release or last conviction of the crimes of
aggravating circumstances and of habitual delinquency. — serious or less serious physical injuries, robo, hurto, estafa
Mitigating or aggravating circumstances and habitual or falsification, he is found guilty of any of said crimes a
delinquency shall be taken into account for the purpose of third time or oftener.
diminishing or increasing the penalty in conformity with
the following rules: Notes:
If aggravating circumstances is present – you
1. Aggravating circumstances which in themselves cannot go higher 1 degree; apply or impose only its
constitute a crime specially punishable by law or maximum
which are included by the law in defining a crime If aggravating is present, no matter how many
and prescribing the penalty therefor shall not be mitigating circumstances are present – apply only
taken into account for the purpose of increasing or impose the penalty in its minimum, you cannot
the penalty.chanrobles virtual law library lower the penalty to 1 degree
2. The same rule shall apply with respect to any
aggravating circumstance inherent in the crime to Art. 63. Rules for the application of indivisible penalties. —
such a degree that it must of necessity accompany In all cases in which the law prescribes a single indivisible
the commission thereof.chanrobles virtual law penalty, it shall be applied by the courts regardless of any
library mitigating or aggravating circumstances that may have
3. Aggravating or mitigating circumstances which attended the commission of the deed
arise from the moral attributes of the offender, or
from his private relations with the offended party, Art. 64. Rules for the application of penalties which contain
or from any other personal cause, shall only serve three periods. — In cases in which the penalties prescribed
to aggravate or mitigate the liability of the by law contain three periods, whether it be a single
principals, accomplices and accessories as to divisible penalty or composed of three different penalties,
whom such circumstances are each one of which forms a period in accordance with the
attendant.chanrobles virtual law library provisions of Articles 76 and 77, the court shall observe for
4. The circumstances which consist in the material the application of the penalty the following rules,
execution of the act, or in the means employed to according to whether there are or are not mitigating or
accomplish it, shall serve to aggravate or mitigate aggravating circumstances:
the liability of those persons only who had
knowledge of them at the time of the execution of 1. When there are neither aggravating nor
the act or their cooperation therein.chanrobles mitigating circumstances, they shall impose the
virtual law library penalty prescribed by law in its medium
5. Habitual delinquency shall have the following period.chanrobles virtual law library
effects:
2. When only a mitigating circumstances is
(a) Upon a third conviction the culprit present in the commission of the act, they shall
shall be sentenced to the penalty impose the penalty in its minimum
provided by law for the last crime of period.chanrobles virtual law library
which he be found guilty and to the 3. When an aggravating circumstance is present in
additional penalty of prision correccional the commission of the act, they shall impose the
in its medium and maximum periods; penalty in its maximum period.chanrobles virtual
(b) Upon a fourth conviction, the culprit law library
shall be sentenced to the penalty
provided for the last crime of which he be 4. When both mitigating and aggravating
found guilty and to the additional penalty circumstances are present, the court shall
of prision mayor in its minimum and reasonably offset those of one class against the
medium periods; and other according to their relative
(c) Upon a fifth or additional conviction, weight.chanrobles virtual law library
the culprit shall be sentenced to the
penalty provided for the last crime of 5. When there are two or more mitigating
which he be found guilty and to the circumstances and no aggravating circumstances
additional penalty of prision mayor in its are present, the court shall impose the penalty
maximum period to reclusion temporal in next lower to that prescribed by law, in the period
its minimum period.chanrobles virtual that it may deem applicable, according to the
law library number and nature of such
circumstances.chanrobles virtual law library
Notwithstanding the provisions of this article, the total of
the two penalties to be imposed upon the offender, in 6. Whatever may be the number and nature of
conformity herewith, shall in no case exceed 30 the aggravating circumstances, the courts shall
years.chanrobles virtual law library not impose a greater penalty than that prescribed
by law, in its maximum period.chanrobles virtual
For the purpose of this article, a person shall be deemed to law library
be habitual delinquent, is within a period of ten years from
7. Within the limits of each period, the court shall 1. Those sentenced to a max of term of
determine the extent of the penalty according to imprisonment of more than 6 years
the number and nature of the aggravating and 2. Those convicted of subversion or any crime
mitigating circumstances and the greater and against national security or public order
lesser extent of the evil produced by the crime. 3. Those who were previously convicted by final
judgment of an offense punishable by
imprisonment of not less than 1 month and 1 day
ISLAW and/or fine of not more than 200
4. Those who have been once on probation
If the crime is a violation of the RPC, the court will 5. Those already serving sentence
impose a sentence that has a minimum and
maximum. The maximum of the indeterminate May a recidivist be given the benefit of Probation Law?
sentence will be arrived at by taking into account
GR: NO
the attendant mitigating and/or aggravating
circumstances according to Art. 64 of the RPC. In XPN: If the earlier conviction refers to a crime the penalty
arriving at the minimum of the indeterminate of which does not exceed 30 days imprisonment or a fine
sentence, the court will take into account the of not more than P200.
penalty prescribed for the crime and go one degree
lower. Within the range of the penalty arrived at as Even if he would be convicted subsequently of a
the max in the indeterminate sentence, the court crime embraced in the same title of the RPC as that
will fix the max of the sentence. If there is a of the earlier conviction, he is not disqualified from
privilege mitigating circumstance which has been probation provided that the penalty of the current
taken in consideration in fixing the max of the crime committed does not go beyond 6 years and
indeterminate sentence, the min shall be based on the nature of the crime committed by him is not
the penalty as reduced by the privilege mitigating against public order, national security or
circumstance within the range of the penalty next subversion
lower in degree.
If the crime is a violation of a special law, in fixing GR: Although a person may be eligible for probation, the
the max of the indeterminate sentence, the court moment he perfects an appeal from the judgment of
will impose the penalty within the range of the conviction, he cannot avail of probation anymore.
penalty prescribed by the special law, as long as it
will not exceed the limit of the penalty. In fixing the XPN: If the offender would appeal the conviction of the
min, the court can fix a penalty anywhere within trial court and the appellate court reduced the penalty to
the range of penalty prescribed by the special law, say, less than 6 years, that convict can still file an
as long as it will not be less than the min limit of application for probation, because the earliest opportunity
the penalty under said law. No mitigating and for him to avail of probation cam only after judgment by
aggravating circumstances are taken into account the appellate court.
Prescription of crime vs. Prescription of penalties 1. If he has pleaded NOT guilty already during
arraignment, he can still confess in open court
Prescription of crimes – the loss or forfeiture of by stating the particular acts constituting
the right of the state to prosecute the offender treason.
after the lapse of a certain time 2. During trial, simply saying “I’m guilty” is not
Prescription of penalty – the loss or forfeiture of enough.
the right of the government to execute the final 3. Withdrawing plea of “not guilty” during
sentence after the lapse of a certain time arraignment not necessary
4. If during arraignment he pleads guilty, court
Article 114 will ask if the accused understands is plea.
TREASON Submission of affidavit during trial, even if
assisted by counsel is not enough.
ELEMENTS:
a. That the offender owes allegiance to the Treason: breach of allegiance to the government,
Government of the Philippines committed by a person who owes allegiance to it.
b. That there is a war in which the Philippines is Allegiance: obligation of fidelity and obedience. It is
involved permanent or temporary depending on whether the
c. That the offender either – person is a citizen or an alien.
1) Levies war against the government, Evident premeditation, superior strength and treachery
are circumstances inherent in treason, and are,
1. breech of allegiance therefore, not aggravating.
2. actual assembling of men Treason cannot be committed in times of peace, only in
3. for the purpose of executing a treasonable times of war – actual hostilities. But no need for
design declaration of war
2) Adheres to the enemies, giving them aid and
comfort
Not Treasonous:
1. breech of allegiance a. Acceptance of public office and discharge of
2. adherence official duties under the enemy does not
3. giving aid or comfort to the enemy constitute per se the felony of treason
(exception: when it is policy determining)
b. Serving in a puppet government (ministerial
Requirements of levying war
functions) and in order to serve the populace
1) Actual assembling of men; is NOT treasonous. But it is treason if: a) there
is discretion involved; b) inflicts harm on
2) To execute a treasonable design by force; Filipinos; c) it is disadvantageous to them.
c. Purpose of offender: to deliver the Philippines
3) Intent is to deliver the country in whole or in part to the to enemy country; if merely to change officials
enemy; and – not treason
Article 116
Treason is a CONTINUING CRIME. Even after the war,
offender can be prosecuted. MISPRISION OF TREASON
ELEMENTS:
Treason is a continuing offense. It can be committed by a a. That the offender must be owing allegiance to
single act or by a series of acts. It can be committed in one the government, and not a foreigner
single time or at different times and only one criminal
intent. In construing the provisions relating to the
commission of several acts, the same must be done in b. That he has knowledge of any conspiracy (to
pursuance or furtherance of the act of treason. commit treason) against the government
Considering that the essence of piracy is one of robbery, any Although in Article 123 merely refers to qualified piracy,
taking in a vessel with force upon things or with violence or there is also the crime of qualified mutiny. Mutiny is
intimidation against person is employed will always be qualified under the following circumstances:
piracy. It cannot co-exist with the crime of robbery.
Robbery, therefore, cannot be committed on board a vessel. (1) When the offenders abandoned the victims without
But if the taking is without violence or intimidation on means of saving themselves; or
persons or force upon things, the crime of piracy cannot be
(2) When the mutiny is accompanied by rape, murder,
committed, but only theft.
homicide, or physical injuries.
Elements of mutiny
Note that the first circumstance which qualifies piracy does
1) The vessel is on the high seas or Philippine waters; not apply to mutiny.
2) Offenders are either members of its complement, or Republic Act No. 6235 (The Anti Hi-Jacking Law)
passengers of the vessel;
Anti hi-jacking is another kind of piracy which is committed
3) Offenders either – in an aircraft. In other countries, this crime is known as
aircraft piracy.
a. attack or seize the vessel; or
Four situations governed by anti hi-jacking law:
b. seize the whole or part of the cargo, its
equipment, or personal belongings of the (1) usurping or seizing control of an aircraft of
crew or passengers. Philippine registry while it is in flight, compelling
the pilots thereof to change the course or
Mutiny is the unlawful resistance to a superior officer, or destination of the aircraft;
the raising of commotions and disturbances aboard a ship
against the authority of its commander. (2) usurping or seizing control of an aircraft of foreign
registry while within Philippine territory, compelling
Article 123 the pilots thereof to land in any part of Philippine
QUALIFIED PIRACY territory;
Questions & Answers Legal grounds for the detention of any person:
a. commission of a crime
b. violent insanity or other ailment requiring
1. In the course of the hi-jack, a passenger or
compulsory confinement of the patient in a
complement was shot and killed. What crime or crimes
hospital
were committed?
c. escaped prisoner
The crime remains to be a violation of the anti hi- When the peace officers acted in good faith even if
jacking law, but the penalty thereof shall be higher because the three (3) grounds mentioned above are not obtaining,
a passenger or complement of the aircraft had been killed. there is no Arbitrary Detention.
The crime of homicide or murder is not committed.
Without legal grounds:
2. The hi-jackers threatened to detonate a a. he has not committed any crime or no reasonable
bomb in the course of the hi-jack. What crime or crimes ground of suspicion that he has committed a crime
were committed? b. not suffering from violent insanity or any other
ailment requiring compulsory confinement in a
Again, the crime is violation of the anti hi-jacking hospital
law. The separate crime of grave threat is not committed.
This is considered as a qualifying circumstance that shall Grounds for warrantless arrest:
serve to increase the penalty. a. Crime is about to be, is being, has been committed
in his presence
Classes of Arbitrary Detention: b. Officer must have probable cause to believe based
on personal knowledge of facts and circumstances
a. By detaining a person without legal ground that the person probably committed the crime
b. Delay in the delivery of detained persons to the
proper judicial authorities
For escaped prisoner – no need for warrant
c. Delaying release
Example: Y was killed by unknown assailant. Officers
got a tip and arrested X. X voluntarily admitted to the
Article 124 officers that he did it although he was not asked. X was
detained immediately. According to the SC, there was
ARBITRARY DETENTION NO arbitrary detention. Why? Because once X made a
confession, the officers had a right to arrest him.
ELEMENTS:
a. That the offender is a public officer or employee Arbitrary detention can be committed thru simple
(whose official duties include the authority to make imprudence or negligence. (People vs. Misa)
an arrest and detain persons; jurisdiction to
maintain peace and order).
b. That he detains a person (actual restraint). Periods of Detention penalized:
c. That the detention was without legal grounds
(cannot be committed if with warrant). 1. Detention not exceeding three days;
2. Detention for more than three days but not more than
Detention: when a person is placed in confinement or 15 days;
there is a restraint on his person.
3. Detention for more than 15 days but not more than 6
Only those public officers whose official duties carry with it months; and
the authority to make an arrest and detain persons can be
guilty of this crime. So, if the offender does not possess such 4. Detention for more than 6 months.
authority, the crime committed by him is illegal detention.
Continuing crime is different from a continuous crime In arbitrary detention, the main reason for
Ramos v. Enrile: Rebels later on retire. According to the detaining the offended party is to deny him of his
SC, once you have committed rebellion and have not liberty.
been punished or amnestied, then the rebels continue
to engage in rebellion, unless the rebels renounce his In unlawful arrest, the purpose is 1) to accuse the
affiliation. Arrest can be made without a warrant offended party of a crime he did not commit; 2) to
because this is a continuing crime. deliver the person to the proper authority; and 3)
to file the necessary charges in a way trying to
Distinction between arbitrary detention and illegal incriminate him.
detention
When a person is unlawfully arrested, his subsequent
1. In arbitrary detention -- detention is without legal grounds.
The principal offender must be a public officer.
Civilians cannot commit the crime of arbitrary Article 134
detention except when they conspire with a public REBELLION OR INSURRECTION
officer committing this crime, or become an
accomplice or accessory to the crime committed by ELEMENTS:
a. That there be –
the public officer; and
1. public uprising and
The offender who is a public officer has a duty 2. taking arms against the government
which carries with it the authority to detain a (force/violence)
person. b. That the purpose of the uprising or movement is
either
1. to remove from the allegiance to said
government or its laws –
2. In illegal detention –
i. the territory of the Philippines or any part
thereof, or
The principal offender is a private person. But a ii. any body of land, naval or other armed
public officer can commit the crime of illegal forces, or
detention when he is acting in a private capacity or 2 To deprive the chief executive or congress,
beyond the scope of his official duty, or when he wholly or partially, of any of their powers or
becomes an accomplice or accessory to the crime prerogatives
committed by a private person.
Persons liable for rebellion
The offender, even if he is a public officer, does not a. Any person who: 1. promotes
include as his function the power to arrest and 2. maintains, or
detain a person, unless he conspires with a public
officer committing arbitrary detention. 3. heads a rebellion or
insurrection; or
Whether the crime is arbitrary detention or illegal detention,
it is necessary that there must be an actual restraint of b. Any person who, while holding any public office or
liberty of the offended party. If there is no actual restraint, employment, takes part therein by:
as the offended party may still go to the place where he 1. engaging in war against the forces of the
wants to go, even though there have been warnings, the government
crime of arbitrary detention or illegal detention is not 2. destroying property or committing serious
committed. There is either grave or light threat. violence
3. exacting contributions or diverting public
However, if the victim is under guard in his movement such funds from the lawful purpose for which they
that there is still restraint of liberty, then the crime of either have been appropriated (Note: “diverting
arbitrary or illegal detention is still committed. public funds” is malversation absorbed in
rebellion);
Distinction between arbitrary detention and unlawful 4. Any person merely participating or executing
arrest the command of others in rebellion
(1) As to offender
In arbitrary detention, the offender is a public The essence of this crime is a public uprising with the taking
officer possessed with authority to make arrests. up of arms. It requires a multitude of people. It aims to
overthrow the duly constituted government. It does not
In unlawful arrest, the offender may be any person. require the participation of any member of the military or
national police organization or public officers and generally
(2) As to criminal intent
carried out by civilians. Lastly, the crime can only be
committed through force and violence.
The crime of rebellion cannot be committed by a single Mere giving of aid or comfort is not criminal in the case
individual. Invariably, it is committed by several persons for of rebellion. Merely sympathizing is not participation,
the purpose of overthrowing the duly constituted or there must be ACTUAL participation
organized government. In the Philippines, what is known to
the ordinary citizen as a symbol of Government would be
the barangay, represented by its officials; the local There must be a public apprising and taking up of
government represented by the provincial and municipal arms for the specified purpose or purposes mentioned in
officials; and the national government represented by the Article 134. The acts of the accused who is not a member of
President, the Chief Justice and the Senate President and the Hukbalahap organization of sending cigarettes and food
the Speaker of the House of Representatives. supplies to a Huk leader; the changing of dollars into pesos
for a top level communist; and the helping of Huks in
opening accounts with the bank of which he was an official,
Success is immaterial, purpose is always political do not constitute Rebellion. (Carino vs. People, et al., 7
SCRA 900).
The crime of rebellion is essentially a political crime. The Not necessary that there is killing, mere threat of
intention of the rebel is to substitute himself in place of removing Phil is sufficient
those who are in power. His method of placing himself in
authority with the use of violence, duress or intimidation, Rebellion may be committed even without a single shot
assassination or the commission of common crimes like being fired. No encounter needed. Mere public uprising
murder, kidnapping, arson, robbery and other heinous with arms enough.
crimes in what we call rebellion.
Rebellion cannot be complexed with any other crime.
Rebellion used where the object of the movement is Common crimes perpetrated in furtherance of a political
completely to overthrow and supersede the existing offense are divested of their character as “common”
government offenses and assume the political complexion of the main
Insurrection refers to a movement which seeks merely crime which they are mere ingredients, and consequently,
to effect some change of minor importance to prevent cannot be punished separately from the principal offense,
the exercise of gov’t authority w/ respect to particular or complexed with the same.
matters or subjects
The phrase “to remove allegiance from the government’ Article 134-A
is used to emphasize that the object of the uprising
could be limited to certain areas, like isolating a COUP D’ ETAT
barangay or municipality or a province in its loyalty to
ELEMENTS:
the duly constituted government or the national
a. Swift attack
government.
b. Accompanied by violence, intimidation, threat,
strategy or stealth
Allegiance is a generic term which includes loyalty, civil c. Directed against:
obedience and civil service. 1. duly constituted authorities
2. any military camp or installation
The law on rebellion however, does not speak only of 3. communication networks or public
allegiance or loss of territory. It also includes the efforts of utilities
the rebel to deprive the President of the Philippines of the 4. other facilities needed for the exercise
exercise of his power to enforce the law, to exact obedience and continued possession of power
of laws and regulations duly enacted and promulgated by d. Singly or simultaneously carried out anywhere in
the duly constituted authorities. the Philippines
Actual clash of arms w/ the forces of the gov’t, not d. Committed by any person or persons
necessary to convict the accused who is in conspiracy belonging to the military or police or
w/ others actually taking arms against the gov’t holding any public office or employment;
Purpose of the uprising must be shown but it is not with or without civilian support or
necessary that it be accomplished participation
A change of government w/o external participation e. With or without civilian support or
RISING PUBLICLY and TAKING ARMS AGAINST participation
GOVERNMENT – actual participation. If there is no f. Purpose of seizing or diminishing state
public uprising, the crime is of direct assault. power
When any of the objectives of rebellion is pursued but there The essence of the crime is a swift attack upon the facilities
is no public uprising in the legal sense, the crime is direct of the Philippine government, military camps and
assault of the first form. But if there is rebellion, with public installations, communication networks, public utilities and
uprising, direct assault cannot be committed. facilities essential to the continued possession of
governmental powers. It may be committed singly or DIRECT ASSAULT
collectively and does not require a multitude of people. ELEMENTS OF THE 1ST FORM OF DIRECT ASSAULT
a. That the offender employs force or intimidation.
The objective may not be to overthrow the government b. That the aim of the offender is to attain any of the
but only to destabilize or paralyze the government purposes of the crime of rebellion or any of the
through the seizure of facilities and utilities essential to objects of the crimes of sedition. (victim need not
the continued possession and exercise of governmental be person in authority)
powers. It requires as principal offender a member of c. That there is no public uprising.
the AFP or of the PNP organization or a public officer
with or without civilian support. Finally, it may be
carried out not only by force or violence but also Example of the first form of direct assault:
through stealth, threat or strategy.
Three men broke into a National Food Authority warehouse
and lamented sufferings of the people. They called on
How do you distinguish between coup d’etat and people to help themselves to all the rice. They did not even
rebellion? help themselves to a single grain.
Rebellion is committed by any person whether a private The crime committed was direct assault. There was no
individual or a public officer whereas in coup d’etat, the robbery for there was no intent to gain. The crime is direct
offender is a member of the military or police force or assault by committing acts of sedition under Article 139 (5),
holding a public office or employment. that is, spoiling of the property, for any political or social
end, of any person municipality or province or the national
In rebellion, the object is to alienate the allegiance of a government of all or any its property, but there is no public
people in a territory, whether wholly or partially, from the uprising.
duly constituted government; in coup d’etat, the object or
purpose is to seize or diminish state power.
In both instances, the offenders intend to substitute ELEMENTS OF THE 2ND FORM OF DIRECT ASSAULT:
themselves in place of those who are in power. a. That the offender (a) makes an attack, (b)
employs force, (c) makes a serious intimidation, or
(d) makes a serious resistance.
b. That the person assaulted is a person in authority
Treason Rebellio Coup Sedition or his agent.
(114) n (134) d’etat (139) c. That at the time of the assault the person in
(134-A) authority or his agent (a) is engaged in the actual
performance of official duties (motive is not
Crime Crime Crime Crime essential), or that he is assaulted (b) by reason of
Nature of against against against against the past performance of official duties (motive is
Crime National Public Public Public essential).
Security Order Order Order d. That the offender knows that the one he is
assaulting is a person in authority or his agent in
levying Public See Rising the exercise of his duties (with intention to offend,
Overt Acts war uprising article. publicly injure or assault).
against the or e. That there is no public uprising.
gov’t; tumultuo
AND usly
OR (caused Crime of direct assault can only be committed by means of
Taking by more dolo. It cannot be committed by culpa.
adherence up arms than 3
and giving against armed Always complexed with the material consequence of the
aid or the gov’t men or act (e.g. direct assault with murder) except if resulting
comfort to provided in a light felony, in which case, the consequence is
enemies with absorbed
means of The crime is not based on the material consequence of the
violence) unlawful act. The crime of direct assault punishes the spirit
of lawlessness and the contempt or hatred for the authority
Purpose of Deliver the See Seizing See or the rule of law.
objective gov’t to article. or enumera
enemy diminishi tion in To be specific, if a judge was killed while he was holding a
during war ng state article. session, the killing is not the direct assault, but murder.
power. There could be direct assault if the offender killed the judge
simply because the judge is so strict in the fulfillment of his
duty. It is the spirit of hate which is the essence of direct
assault.
Article 148
So, where the spirit is present, it is always complexed with treasurer, postmaster, sheriff, agents of the BIR,
the material consequence of the unlawful act. If the Malacañang confidential agent)
unlawful act was murder or homicide committed under Even when the person in authority or the agent agrees
circumstance of lawlessness or contempt of authority, the to fight, still direct assault.
crime would be direct assault with murder or homicide, as When the person in authority or the agent
the case may be. In the example of the judge who was provoked/attacked first, innocent party is entitled to
killed, the crime is direct assault with murder or homicide. defend himself and cannot be held liable for assault or
resistance nor for physical injuries, because he acts in
The only time when it is not complexed is when material legitimate self-defense
consequence is a light felony, that is, slight physical injury.
Direct assault absorbs the lighter felony; the crime of direct
assault can not be separated from the material result of the The offended party in assault must not be the aggressor. If
act. So, if an offender who is charged with direct assault there is unlawful aggression employed by the public officer,
and in another court for the slight physical Injury which is any form of resistance which may be in the nature of force
part of the act, acquittal or conviction in one is a bar to the against him will be considered as an act of legitimate
prosecution in the other. defense. (People vs. Hernandez, 59 Phil. 343)
Hitting the policeman on the chest with fist is not direct There can be no assault upon or disobedience to one
assault because if done against an agent of a person in authority by another when they both contend that they
authority, the force employed must be of serious were in the exercise of their respective duties.
character
The force employed need not be serious when the
offended party is a person in authority (ex. Laying of The offender and the offended party are both public
hands) officers. The Supreme Court said that assault may still be
committed, as in fact the offender is even subjected to a
greater penalty (U.S. vs. Vallejo, 11 Phil. 193).
The intimidation or resistance must be serious whether
the offended party is an agent only or a person in
authority (ex. Pointing a gun)
When assault is made by reason of the performance of
his duty there is no need for actual performance of his
Force Employed Intimidation/ official duty when attacked
Resistance
In direct assault of the first form, the stature of the offended
Person in Need not be serious Serious person is immaterial. The crime is manifested by the spirit
Authority of lawlessness.
Agent Must be of serious Serious In the second form, you have to distinguish a situation
character where a person in authority or his agent was attacked while
performing official functions, from a situation when he is
not performing such functions.
Person in authority: any person directly vested with If attack was done during the exercise of official
jurisdiction (power or authority to govern and execute functions, the crime is always direct assault. It is
the laws) whether as an individual or as a member of enough that the offender knew that the person in
some court or governmental corporation, board or authority was performing an official function whatever
commission may be the reason for the attack, although what may
A barangay captain is a person in authority, so is a have happened was a purely private affair.
Division Superintendent of schools, President of
Sanitary Division and a teacher
On the other hand, if the person in authority or the agent
In applying the provisions of Articles 148 and 151, teachers, was killed when no longer performing official functions, the
professors, and persons charged with the supervision of crime may simply be the material consequence of he
public or duly recognized private schools, colleges and unlawful act: murder or homicide. For the crime to be direct
universities and lawyers in the actual performance of their assault, the attack must be by reason of his official function
duties or on the occasion of such performance, shall be in the past. Motive becomes important in this respect.
deemed a person in authority. Example, if a judge was killed while resisting the taking of
his watch, there is no direct assault.
Agent: is one who, by direct provision of law or by
election or by appointment by competent authority, is In the second form of direct assault, it is also important that
charged with the maintenance of public order and the the offended knew that the person he is attacking is a
protection and security of life and property. (Example. person in authority or an agent of a person in authority,
Barrio councilman and any person who comes to the performing his official functions. No knowledge, no
aid of the person in authority, policeman, municipal lawlessness or contempt.
For example, if two persons were quarreling and a The victim in indirect assault should be a private person who
policeman in civilian clothes comes and stops them, but one comes in aid of an agent of a person in authority. The
of the protagonists stabs the policeman, there would be no assault is upon a person who comes in aid of the agent of a
direct assault unless the offender knew that he is a person in authority. The victim cannot be the person in
policeman. authority or his agent.
In this respect it is enough that the offender should know Take note that under Article 152, as amended, when any
that the offended party was exercising some form of person comes in aid of a person in authority, said person at
authority. It is not necessary that the offender knows what that moment is no longer a civilian – he is constituted as an
is meant by person in authority or an agent of one because agent of the person in authority. If such person were the
ignorantia legis non excusat. one attacked, the crime would be direct assault
a private person who comes to the aid of a person in Agent of Person in Authority – any person who, by
authority is by fiction of law deemed or is considered direct provision of law or by election or by appointment
an agent of a person in authority. by competent authority, is charged with the
maintenance of public order and the protection and
Article 149 security of life and property.
In direct bribery, consider whether the official act, which the If it is not a crime, the consideration must be delivered by
public officer agreed to do, is a crime or not. the corruptor before a public officer can be prosecuted for
bribery. Mere agreement, is not enough to constitute the
crime because the act to be done in the first place is
If it will amount to a crime, it is not necessary that the legitimate or in the performance of the official duties of the
corruptor should deliver the consideration or the doing of public official
the act. The moment there is a meeting of the minds, even
without the delivery of the consideration, even without the Unless the public officer receives the consideration for
public officer performing the act amounting to a crime, doing his official duty, there is no bribery. It is necessary
bribery is already committed on the part of the public that there must be delivery of monetary consideration. This
officer. Corruption is already committed on the part of the is so because in the second situation, the public officer
supposed giver. The reason is that the agreement is a actually performed what he is supposed to perform. It is
conspiracy involving the duty of a public officer. The mere just that he would not perform what he is required by law
agreement is a felony already. to perform without an added consideration from the public
which gives rise to the crime.
If the public officer commits the act which constitutes the
crime, he, as well as the corruptor shall be liable also for The idea of the law is that he is being paid salary for being
that other crime. there. He is not supposed to demand additional
compensation from the public before performing his public
Illustrations: service. The prohibition will apply only when the money is
delivered to him, or if he performs what he is supposed to guilty of Robbery (Article 294, par. 5) or Bribery (Article
perform in anticipation of being paid the money. 210). If the victim actually committed a crime, and the
policeman demanded money so he will not be arrested, the
Here, the bribery will only arise when there is already the crime is Bribery. But if no crime has been committed and
acceptance of the consideration because the act to be done the policeman is falsely charging him of having committed
is not a crime. So, without the acceptance, the crime is not one, threatening to arrest him if he will not come across
committed. with some consideration, the crime is Robbery.
The third type of bribery and prevaricacion (art 208) are Article 211
similar offenses, both consisting of omissions to do an INDIRECT BRIBERY
act required to be performed. In direct bribery
however, a gift or promise is given in consideration of ELEMENTS:
the omission. This is not necessary in prevaricacion a. That the offender is a public officer.
b. That he accepts gifts.
c. That the said gifts are offered to him by
Distinction between direct bribery and indirect bribery reason of his office.
If the BLT registrar calls up his subordinates and said to take There is no attempted or frustrated indirect bribery
care of the taxis of the taxi operator so much so that the The principal distinction between direct and indirect
registration of the taxis is facilitated ahead of the others, bribery is that in the former, the officer agrees to
what originally would have been indirect bribery becomes perform or refrain from doing an act in consideration of
direct bribery. the gift or promise. In the latter case, it is not necessary
that the officer do any act. It is sufficient that he
accepts the gift offered by reason of his office
Bribery (210) Robbery (294) Public officers receiving gifts and private persons giving
gifts on any occasion, including Christmas are liable
When the victim has When the victim did not under PD 46.
committed a crime and commit a crime and he is The criminal penalty or imprisonment is distinct from
gives money/gift to intimidated with arrest and/or the administrative penalty of suspension from the
avoid arrest or prosecution to deprive him of service
prosecution. his personal property.
Article 211-A
Victim parts with his Victim is deprived of his QUALIFIED BRIBERY
money or property money or property by force or
voluntarily. intimidation. ELEMENTS:
a. Public officer entrusted with law enforcement
Robbery should be distinguished from Bribery b. Refrains from arresting/prosecuting offender
where a law enforcer, say a policeman, extorts money from for crime punishable by reclusion perpetua
a person, employing intimidation and threatening to arrest and/or death
the latter if he will not come across with money may be
(if lower penalty than stated above, the crime is In determining whether the offender is liable for
direct bribery) malversation, it is the nature of the duties of the public
officer that controls. While the name of the office is
c. In consideration of any offer, promise or gift important, what is controlling is whether in performing his
Note that the penalty is DEATH if the public officer is the duties as a public officer, he has to account or is required by
one who asks or demands such present. the nature of the performance of a duty, to render an
He need not receive the gift or present because a account on the money or property that came into his
mere offer or promise is sufficient. possession.
ELEMENTS COMMON TO ALL ACTS MALVERSATION OF It can be committed either with malice or through
PUBLIC FUNDS OR PROPERTY : negligence or imprudence
a. That the offender be a public officer (or
private person if entrusted with public funds
or connived with public officers) There is no crime of malversation through
b. That he had the custody or control of funds or negligence. The crime is malversation, plain and simple,
property (if not accountable for the funds, whether committed through dolo or culpa. There is no
theft or qualified theft) crime of malversation under Article 365 – on criminal
c. That those funds or property were public negligence – because in malversation under Article 217, the
funds or property (even if private funds if same penalty is imposed whether the malversation results
attached, seized, deposited or commingled from negligence or was the product of deliberate act.
with public funds)
d. That he: In determining whether the offender is a public officer,
what is controlling is the nature of his office and not the
1. Appropriated the funds or property
designation
2. Took or misappropriated them
3. Consented or, through abandonment or
negligence, permitted any other person The offender, to commit malversation, must be accountable
to take such public funds or property. (it for the funds or property misappropriated by him. If he is
is not necessary that the offender profited not the one accountable but somebody else, the crime
thereby. His being remiss in the duty of
committed is theft. It will be qualified theft if there is abuse
safekeeping public funds violates the trust
of confidence.
reposed)
Accountable officer does not refer only to cashier,
disbursing officers or property custodian. Any public officer
Concept of Malversation having custody of public funds or property for which he is
accountable can commit the crime of malversation if he
would misappropriate such fund or property or allow others
It consists in the misappropriation or conversion of public
funds or property to one’s personal use or knowingly, or to do so.
through abandonment or negligence allowing other to use
The funds or property must be received in an official
or appropriate the same. The offender is made liable
capacity. Otherwise, the crime committed is estafa
because of the nature of his duties to take care of the funds
or property entrusted to him with the diligence of a good
When private property is attached or seized by public
father of a family. He is accountable by virtue of the nature
authority and the public officer accountable therefor
of his office to account for funds or properties that come to
misappropriates the same, malversation is committed also.
his possession. If he is not accountable for the funds or
properties and he misappropriates the same, the crime will Illustration:
not be malversation but estafa under Article 315.
If a sheriff levied the property of the defendants and
Malversation is otherwise called embezzlement absconded with it, he is not liable of qualified theft but of
malversation even though the property belonged to a
This crime is predicated on the relationship of the offender private person. The seizure of the property or fund
to the property or funds involved. The offender must be impressed it with the character of being part of the public
accountable for the property misappropriated. If the fund funds it being in custodia legis. For as long as the public
or property, though public in character is the responsibility officer is the one accountable for the fund or property that
of another officer, malversation is not committed unless was misappropriated, he can be liable for the crime of
there is conspiracy. malversation. Absent such relation, the crime could be
theft, simple or qualified.
Estafa Malversation reported has a distinct ring of truth to it, the legal
presumption of prima facie evidence of guilt will not apply.
It is usually committed by a Committed by accountable In order to support conviction, the prosecution must prove
private individual public officers the actual misappropriation of the missing funds.(Salvacion
vs. The Honorable Sandiganbayan, G. R. No. 68233, July 11,
Funds or property of The object is public fund or 1986)
misappropriation are property.
privately owned. To rebut the presumption of guilt prima facie under Article
217, the accused must raise the issue of accuracy,
The offender appropriates Personal appropriation is correctness and regularity in the conduct of audit. If asked
personally the funds or not indispensable because for a second audit before the filing of the information
property. allowing others to commit against him and the same was denied, and during the trial,
the misappropriation is also some disbursement vouchers were introduced which were
malversation. not considered in the first audit, the denial of the request
for a second audit is fatal to the cause of the prosecution
because in the meantime, the evidence introduced does not
establish a fact beyond reasonable doubt. Had the re-audit
When a public officer has official custody or the duty to
requested by the accused been accorded due course, the
collect or receive funds due the government, or the
remaining balance could have been satisfactorily accounted
obligation to account for them, his misappropriation of
for. (Mahinay vs. The Sandiganbayan. G. R. No. 61442,
the same constitutes malversation
May 9, 1989)
Under jurisprudence, when the public officer leaves his post It is not necessary that the accountable public officer should
without locking his drawer, there is negligence. Thus, he is actually misappropriate the fund or property involved. It is
liable for the loss. enough that he has violated the trust reposed on him in
connection with the property.
The measure of negligence to be observed is the
standard of care commensurate with the occasion Demand as well as damage to the government are not
When malversation is not committed through necessary elements
negligence, lack of criminal intent or good faith is a
defense Note that damage on the part of the government is not
The failure of a public officer to have any duly considered an essential element. It is enough that the
forthcoming public funds or property upon demand, by proprietary rights of the government over the funds have
any authorized officer, shall be prima facie evidence been disturbed through breach of trust.
that he has put such missing funds or property to The grant of loans through the vale system is a clear case of
personal use. However, if at the very moment when the an accountable officer consenting to the improper or
shortage is discovered, the accountable officer is unauthorized use of public funds by other persons, which is
notified, and he immediately pays the amount from his punishable by law. To tolerate such a practice is to give a
pocket, the presumption does not arise license to every disbursing officer to conduct a lending
operation with the use of public funds. There is no law or
An accountable public officer may be convicted even if regulation allowing accountable officers to extend loans to
there is no direct evidence of misappropriation and the only anyone against the “vales” or chits given in exchange by the
evidence is the shortage in his account which he has not borrowers. (Meneses vs. Sandiganbayan)
been able to explain satisfactorily. (Palma Gil vs. People)
A private person may also commit malversation under the
following situations:
If a public officer reports the loss of money before a cash (1) Conspiracy with a public officer in committing
examination is conducted and the cause of the loss as malversation;
(2) When he has become an accomplice or accessory to Not all frauds will constitute this crime. There must be no
a public officer who commits malversation; fixed allocation or amount on the matter acted upon by the
public officer.
(3) When the private person is made the custodian in
whatever capacity of public funds or property, The allocation or outlay was made the basis of fraudulent
whether belonging to national or local government, quotations made by the public officer involved.
and he misappropriates the same;
For example, there was a need to put some additional
(4) When he is constituted as the depositary or lighting along a street and no one knows how much it will
administrator of funds or property seized or cost. An officer was asked to canvass the cost but he
attached by public authority even though said connived with the seller of light bulbs, pricing each light
funds or property belong to a private individual. bulb at P550.00 instead of the actual price of P500.00. This
is a case of fraud against public treasury.
Technical malversation is not included in the crime of
malversation. In malversation, the offender If there is a fixed outlay of P20,000.00 for the lighting
misappropriates public funds or property for his own apparatus needed and the public officer connived with the
personal use, or allows any other person to take such funds seller so that although allocation was made a lesser number
or property for the latter’s own personal use. In technical was asked to be delivered, or of an inferior quality, or
malversation, the public officer applies the public funds or secondhand. In this case there is no fraud against the public
property under his administration to another public use treasury because there is a fixed allocation. The fraud is in
different from that for which the public fund was the implementation of procurement. That would constitute
appropriated by law or ordinance. Recourse: File the proper the crime of “other fraud” in Article 214, which is in the
information. nature of swindling or estafa.
ELEMENTS: (par. 1)
a. That the offender be a public officer.
b. That he should have taken advantage of his
office, that is, he intervened in the transaction
in his official capacity. ILLEGAL EXACTIONS (par 2)
c. That he entered into an agreement with any
ELEMENTS:
interested party or speculator or made use of
a. The offender is a public officer entrusted with
any other scheme with regard to (a)
the collection of taxes, licenses, fees and
furnishing supplies (b) the making of
other imposts.
contracts, or (c) the adjustment or settlement
b. He is guilty of any of the following acts or
of account relating to a public property or
omissions:
funds.
1. demanding, directly or indirectly the
d. That the accused had intent to defraud the
payment of sums different from or larger
government.
than those authorized by law, or
2. failing voluntarily to issue a receipt, as
provided by law, for any sum of money
Notes:
collected by him officially, or
a. The public officer must act in his official
capacity 3. Collecting or receiving, directly or
b. The felony is consummated by merely entering indirectly, by way of payment or
into an agreement with any interested party or otherwise, things or objects of a nature
different from that provided by law.
speculator or by merely making use of any
scheme to defraud the Government
Notes:
The essence of this crime is making the government pay for
something not received or making it pay more than what is This can only be committed principally by a public officer
due. It is also committed by refunding more than the whose official duty is to collect taxes, license fees, import
amount which should properly be refunded. This occurs duties and other dues payable to the government.
usually in cases where a public officer whose official duty is Not any public officer can commit this crime. Otherwise, it
to procure supplies for the government or enter into is estafa. Fixers cannot commit this crime unless he
contract for government transactions, connives with the conspires with the public officer authorized to make the
said supplier with the intention to defraud the government. collection.
Also when certain supplies for the government are
purchased for the high price but its quantity or quality is The essence of the crime is not misappropriation of any of
low. the amounts but the improper making of the collection
which would prejudice the accounting of collected amounts
by the government.
a. Mere demand of a larger or different amount In the example given, the public officer did not
is sufficient to consummate the crime. The include in the official receipt the P100.00 and,
essence is the improper collection (damage to therefore, it did not become part of the public
gov’t is not required) funds. It remained to be private. It is the taxpayer
who has been defrauded of his P100.00 because he
On the first form of illegal exaction can never claim a refund from the government for
excess payment since the receipt issued to him was
only P400.00 which is due the government. As far
In this form, mere demand will consummate the crime, as the P100.00 is concerned, the crime committed
even if the taxpayer shall refuse to come across with the is estafa.
amount being demanded. That will not affect the
consummation of the crime. (3) A taxpayer pays his taxes. What is due the
In the demand, it is not necessary that the amount being government is P400.00 and the public officer issues
demanded is bigger than what is payable to the a receipt for P500.00 upon payment of the taxpayer
government. The amount being demanded maybe less than of said amount demanded by the public officer
the amount due the government. involved. But he altered the duplicate to reflect
only P400.00 and he extracted the difference of
b. If sums are received without demanding the P100.00.
same, a felony under this article is not
committed. However, if the sum is given as a In this case, the entire P500.00 was covered by an
sort of gift or gratification, the crime is indirect official receipt. That act of covering the whole
bribery amount received from the taxpayer in an official
c. When there is deceit in demanding larger fees, receipt will have the characteristics of becoming a
the crime committed is estafa part of the public funds. The crimes committed,
d. May be complexed with malversation therefore, are the following:
Although the excess P100.00 was not covered by This crime does not require damage to the government.
the Official Receipt, it was commingled with the
Officers and employees of the BIR or Customs are not
other public funds in the vault; hence, it became
covered by the article.
part of public funds and subsequent extraction
thereof constitutes malversation. The NIRC or Administrative Code is the
applicable law
Note that numbers 1 and 2 are complexed as illegal exaction
with estafa, while in number 3, malversation is a distinct These officers are authorized to make impositions and to
offense. enter into compromises. Because of this discretion, their
demanding or collecting different from what is necessary is
The issuance of the Official Receipt is the operative fact to
legal
convert the payment into public funds. The payor may
demand a refund by virtue of the Official Receipt. Article 220
In cases where the payor decides to let the official to “keep ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (technical
the change”, if the latter should pocket the excess, he shall malversation)
be liable for malversation. The official has no right but the
government, under the principle of accretion, as the owner ELEMENTS:
of the bigger amount becomes the owner of the whole. a. That the offender is a public officer.
b. That there is public fund or property under his of the cement in paving his own garage. The crime of
administration. technical malversation is also committed.
c. That such public fund or property has been
appropriated by law or ordinance (without Note that when a private person is constituted as the
this, it is simple malversation even if applied to custodian in whatever capacity, of public funds or property,
other public purpose). and he misappropriates the same, the crime of malversation
d. That he applies the same to a public use other is also committed. See Article 222.
than for which such fund or property has been
appropriated by law or ordinance. Illustration:
To distinguish this article with Art 217, just remember Malfeasance Doing of an act which a public officer
that in illegal use of public funds or property, the should not have done
offender does not derive any personal gain, the funds
are merely devoted to some other public use
Absence of damage is only a mitigating circumstance
Misfeasance Improper doing of an act which a person
might lawfully do
Since damage is not an element of malversation, even
though the application made proved to be more beneficial
to public interest than the original purpose for which the
amount or property was appropriated by law, the public Nonfeasance Failure of an agent to perform his
officer involved is still liable for technical malversation. undertaking for the principal
If public funds were not yet appropriated by law or Habitual delinquency
ordinance, and this was applied to a public purpose by the
custodian thereof, the crime is plain and simple Recidivism
malversation, not technical malversation. If the funds had
been appropriated for a particular public purpose, but the Quasi-recidivism
same was applied to private purpose, the crime committed
is simple malversation only. Habituality
The office lacked bond papers. What the government 1. A was charged with murder, the court sentenced him to
cashier did was to send the janitor, get some money from life imprisonment. Is the court correct? Why?
his collection, told the janitor to buy bond paper so that the
2. ISLAW – RPC and Special Law
office will have something to use. The amount involved
maybe immaterial but the cashier commits malversation 3. Probation – if he has appealed. RTC – 6 yrs and 1 day
pure and simple. max.. SC – 2 years and 4 months. Can he still avail of
probation?
This crime can also be committed by a private person.
4. Is there an attempted physical injuries?
Illustration:
If there is no result, you do not know. Criminal law cannot
A certain road is to be cemented. Bags of cement were
stand on any speculation or ambiguity; otherwise, the
already being unloaded at the side. But then, rain began to
presumption of innocence would be sacrificed. Therefore,
fall so the supervisor of the road building went to a certain
the commentator’s opinion cannot stand because you
house with a garage, asked the owner if he could possibly
cannot tell what particular physical injuries was attempted
deposit the bags of cement in his garage to prevent the
or frustrated unless the consequence is there. You cannot
same from being wet. The owner of the house, Olive,
classify the physical injuries.
agreed. So the bags of cement were transferred to the
garage of the private person. After the public officer had You will notice that under the Revised Penal Code, the crime
left, and the workers had left because it is not possible to do of physical injuries is penalized on the basis of the gravity of
the cementing, the owner of the garage started using some the injuries. Actually, there is no simple crime of physical
injuries. You have to categorize because there are specific
articles that apply whether the physical injuries are serious,
less serious or slight. If you say physical injuries, you do not
know which article to apply. This being so, you could not
punish the attempted or frustrated stage because you do
not know what crime of physical injuries was committed.
6. Suicide..