ortega notes book 2 crim

8/19/2019 Ortega Notes Book 2 Crim

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TITLE I. CRIMES AGAINST NATIONAL SECURITYAND THE LAW OF NATIONS

Crimes against national security

1. Treason (Art. 114);

2. Conspiracy and proposal to commit treason(Art. 115);

3. Misprision of treason (Art. 116); and

4. Espionage (Art. 117).

Crimes against the law of nations

1. Inciting to war or giving motives for reprisals(Art. 118);

2. Violation of neutrality (Art. 119);

3. Corresponding with hostile country (Art.120);

4. Flight to enemy's country (Art. 121); and

5. Piracy in general and mutiny on the high seas(Art. 122).

The crimes under this title can be prosecuted even ifthe criminal act or acts were committed outside thePhilippine territorial jurisdiction. However, prosecutioncan proceed only if the offender is within Philippineterritory or brought to the Philippines pursuant to an

extradition treaty. This is one of the instances wherethe Revised Penal Code may be given extra-territorialapplication under Article 2 (5) thereof. In the case ofcrimes against the law of nations, the offender can beprosecuted whenever he may be found because thecrimes are regarded as committed against humanityin general.

Almost all of these are crimes committed in times ofwar, except the following, which can be committed intimes of peace:

(1) Espionage, under Article 114 – This is alsocovered by Commonwealth Act No. 616 whichpunishes conspiracy to commit espionage.This may be committed both in times of warand in times of peace.

(2) Inciting to War or Giving Motives forReprisals, under Article 118 – This can becommitted even if the Philippines is not aparticipant. Exposing the Filipinos or theirproperties because the offender performed anunauthorized act, like those who recruitFilipinos to participate in the gulf war. If they

involve themselves to the war, this crime iscommitted. Relevant in the cases of FlorContemplacion or Abner Afuang, the policeofficer who stepped on a Singaporean flag.

(3) Violation of Neutrality, under Article 119 – The Philippines is not a party to a war but

there is a war going on. This may becommitted in the light of the Middle East war.

Article 114. Treason

Elements

1. Offender is a Filipino or resident alien;

2. THERE IS A WAR IN WHICH THEPHILIPPINES IS INVOLVED;

3. Offender either –

A. LEVIES WAR AGAINST THEGOVERNMENT; OR

b. adheres to the enemies, giving themaid or comfort within the Philippinesor elsewhere

Requirements of levying war

1. Actual assembling of men;

2. To execute a treasonable design by force;

3. Intent is to deliver the country in whole or in

part to the enemy; and

4. Collaboration with foreign enemy or someforeign sovereign

Two ways of proving treason

1. Testimony of at least two witnesses to thesame overt act; or

2. Confession of accused in open court.

Article 115. Conspiracy and Proposal to CommitTreason

Elements of conspiracy to commit treason

1. There is a war in which the Philippines isinvolved;

2. At least two persons come to an agreementto –


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a. levy war against the government; or

b. adhere to the enemies, giving themaid or comfort;

3. They decide to commit it.

Elements of proposal to commit treason


2. At least one person decides to –

a. levy war against the government; or

b. adhere to the enemies, giving themaid or comfort;

3. He proposes its execution to some otherpersons.

Article 116. Misprision of Treason

Elements

1. Offender owes allegiance to the government,and not a foreigner;

2. He has knowledge of conspiracy to committreason against the government;

3. He conceals or does not disclose and makeknown the same as soon as possible to the

governor or fiscal of the province in which heresides, or the mayor or fiscal of the city inwhich he resides.

While in treason, even aliens can commit said crimebecause of the amendment to the article, no suchamendment was made in misprision of treason.Misprision of treason is a crime that may becommitted only by citizens of the Philippines.

The essence of the crime is that there are personswho conspire to commit treason and the offenderknew this and failed to make the necessary report tothe government within the earliest possible time.

What is required is to report it as soon as possible.The criminal liability arises if the treasonous activitywas still at the conspiratorial stage. Because if thetreason already erupted into an overt act, theimplication is that the government is already aware ofit. There is no need to report the same. This is afelony by omission although committed with dolo, notwith culpa.

The persons mentioned in Article 116 are not limitedto mayor, fiscal or governor. Any person in authorityhaving equivalent jurisdiction, like a provincialcommander, will already negate criminal liability.

Whether the conspirators are parents or children, andthe ones who learn the conspiracy is a parent or child,

they are required to report the same. The reason isthat although blood is thicker than water so to speak,when it comes to security of the state, bloodrelationship is always subservient to national security.Article 20 does not apply here because the personsfound liable for this crime are not consideredaccessories; they are treated as principals.

In the 1994 bar examination, a problem was givenwith respect to misprision of treason. The text of theprovision simply refers to a conspiracy to overthrowthe government. The examiner failed to note thatthis crime can only be committed in times of war.The conspiracy adverted to must be treasonous incharacter. In the problem given, it was rebellion. A

conspiracy to overthrow the government is a crime ofrebellion because there is no war. Under the RevisedPenal Code, there is no crime of misprision ofrebellion.

Article 117. Espionage

Acts punished

1. By entering, without authority therefore, awarship, fort or naval or militaryestablishment or reservation to obtain anyinformation, plans, photograph or other dataof a confidential nature relative to the

defense of the Philippines;

Elements

1. Offender enters any of the placesmentioned;

2. He has no authority therefore;

3. His purpose is to obtain information,plans, photographs or other data of aconfidential nature relative to thedefense of the Philippines.

2. By disclosing to the representative of aforeign nation the contents of the articles,data or information referred to in paragraph 1of Article 117, which he had in his possessionby reason of the public office he holds.

Elements

1. Offender is a public officer;


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2. He has in his possession the articles,data or information referred to inparagraph 1 of Article 117, by reasonof the public office he holds;

3. He discloses their contents to arepresentative of a foreign nation.

Commonwealth Act No. 616 – An Act to PunishEspionage and Other Offenses against NationalSecurity

Acts punished

1. Unlawfully obtaining or permitting to beobtained information affecting nationaldefense;

2. Unlawful disclosing of information affectingnational defense;

3. Disloyal acts or words in times of peace;

4. Disloyal acts or words in times of war;

5. Conspiracy to violate preceding sections; and

6. Harboring or concealing violators of law.

Article 118. Inciting to War or Giving Motivesfor Reprisals

Elements

1. Offender performs unlawful or unauthorizedacts;

2. The acts provoke or give occasion for –

a. a war involving or liable to involvethe Philippines; or

b. exposure of Filipino citizens toreprisals on their persons orproperty.

Article 119. Violation of Neutrality

Elements

1. There is a war in which the Philippines is notinvolved;

2. There is a regulation issued by a competentauthority to enforce neutrality;

3. Offender violates the regulation.

When we say national security, it should beinterpreted as including rebellion, sedition andsubversion. The Revised Penal Code does not treatrebellion, sedition and subversion as crimes againstnational security, but more of crimes against publicorder because during the time that the Penal Codewas enacted, rebellion was carried out only with bolos

and spears; hence, national security was not reallythreatened. Now, the threat of rebellion or internalwars is serious as a national threat.

Article 120. Correspondence with HostileCountry

Elements

1. It is in time of war in which the Philippines isinvolved;

2. Offender makes correspondence with anenemy country or territory occupied by

enemy troops;

3. The correspondence is either –

a. prohibited by the government;

b. carried on in ciphers or conventionalsigns; or

c. containing notice or informationwhich might be useful to the enemy.

Article 121. Flight to Enemy's Country

Elements


2. Offender must be owing allegiance to thegovernment;

3. Offender attempts to flee or go to enemycountry;

4. Going to the enemy country is prohibited bycompetent authority.

In crimes against the law of nations, the offenderscan be prosecuted anywhere in the world becausethese crimes are considered as against humanity ingeneral, like piracy and mutiny. Crimes againstnational security can be tried only in the Philippines,as there is a need to bring the offender here beforehe can be made to suffer the consequences of thelaw. The acts against national security may becommitted abroad and still be punishable under ourlaw, but it can not be tried under foreign law.


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Article 122. Piracy in general and Mutiny on theHigh Seas or in Philippine Waters

Acts punished as piracy

1. Attacking or seizing a vessel on the high seasor in Philippine waters;

2. Seizing in the vessel while on the high seasor in Philippine waters the whole or part of itscargo, its equipment or personal belongingsof its complement or passengers.

Elements of piracy

1. The vessel is on the high seas or Philippinewaters;

2. Offenders are neither members of its

complement nor passengers of the vessel;

3. Offenders either –

a. attack or seize a vessel on the highseas or in Philippine waters; or

b. seize in the vessel while on the highseas or in Philippine waters the wholeor part of its cargo, its equipment orpersonal belongings of itscomplement or passengers;

4. There is intent to gain.

Originally, the crimes of piracy and mutiny can onlybe committed in the high seas, that is, outsidePhilippine territorial waters. But in August 1974,Presidential Decree No. 532 (The Anti-Piracy and Anti-Highway Robbery Law of 1974) was issued, punishingpiracy, but not mutiny, in Philippine territorial waters.Thus came about two kinds of piracy: (1) that whichis punished under the Revised Penal Code ifcommitted in the high seas; and (2) that which ispunished under Presidential Decree No. 532 ifcommitted in Philippine territorial waters.

Amending Article 122, Republic Act No. 7659 includedtherein piracy in Philippine waters, thus, pro tanto

superseding Presidential Decree No. 532. Asamended, the article now punishes piracy, as well asmutiny, whether committed in the high seas or inPhilippine territorial waters, and the penalty has beenincreased to reclusion perpetua from reclusiontemporal.

But while under Presidential Decree No. 532, piracy inPhilippine waters could be committed by any person,including a passenger or member of the complement

of a vessel, under the amended article, piracy canonly be committed by a person who is not apassenger nor member of the complement of thevessel irrespective of venue. So if a passenger orcomplement of the vessel commits acts of robbery inthe high seas, the crime is robbery, not piracy.

Note, however, that in Section 4 of PresidentialDecree No. 532, the act of aiding pirates or abettingpiracy is penalized as a crime distinct from piracy.Said section penalizes any person who knowingly andin any manner aids or protects pirates, such as givingthem information about the movement of the policeor other peace officers of the government, or acquiresor receives property taken by such pirates, or in anymanner derives any benefit therefrom; or who directlyor indirectly abets the commission of piracy. Also, itis expressly provided in the same section that theoffender shall be considered as an accomplice of theprincipal offenders and punished in accordance withthe Revised Penal Code. This provision of PresidentialDecree No. 532 with respect to piracy in Philippine

water has not been incorporated in the Revised PenalCode. Neither may it be considered repealed byRepublic Act No. 7659 since there is nothing in theamendatory law is inconsistent with said section.Apparently, there is still the crime of abetting piracyin Philippine waters under Presidential Decree No.532.

Considering that the essence of piracy is one ofrobbery, any taking in a vessel with force upon thingsor with violence or intimidation against person isemployed will always be piracy. It cannot co-existwith the crime of robbery. Robbery, therefore, cannotbe committed on board a vessel. But if the taking iswithout violence or intimidation on persons of force

upon things, the crime of piracy cannot be committed,but only theft.

Questions & Answers

Could theft be committed on board a vessel?

Yes. The essence of piracy is one of robbery.

Elements of mutiny

1. The vessel is on the high seas or Philippinewaters;

2. Offenders are either members of itscomplement, or passengers of the vessel;


a. attack or seize the vessel; or


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b. seize the whole or part of the cargo,its equipment, or personal belongingsof the crew or passengers.

Mutiny is the unlawful resistance to a superior officer,

or the raising of commotions and disturbances aboarda ship against the authority of its commander.

Distinction between mutiny and piracy

(1) As to offenders

Mutiny is committed by members of thecomplement or the passengers of the vessel.

Piracy is committed by persons who are notmembers of the complement or thepassengers of the vessel.

(2) As to criminal intent

In mutiny, there is no criminal intent.

In piracy, the criminal intent is for gain.

Article 123. Qualified Piracy

Elements

1. The vessel is on the high seas or Philippinewaters:

2. Offenders may or may not be members of its

complement, or passengers of the vessel;


a. attack or seize the vessel; or

b. seize the whole or part of the cargo,its equipment., or personalbelongings of the crew orpassengers;

4. The preceding were committed under any ofthe following circumstances:

a. whenever they have seized a vesselby boarding or firing upon the same;

b. whenever the pirates haveabandoned their victims withoutmeans of saving themselves; or

c. whenever the crime is accompaniedby murder, homicide, physicalinjuries or rape.

If any of the circumstances in Article123 is present,piracy is qualified. Take note of the specific crimesinvolve in number 4 c (murder, homicide, physicalinjuries or rape). When any of these crimesaccompany piracy, there is no complex crime.Instead, there is only one crime committed – qualified

piracy. Murder, rape, homicide, physical injuries aremere circumstances qualifying piracy and cannot bepunished as separate crimes, nor can they becomplexed with piracy.

Although in Article 123 merely refers to qualifiedpiracy, there is also the crime of qualified mutiny.Mutiny is qualified under the following circumstances:

(1) When the offenders abandoned the victimswithout means of saving themselves; or

(2) When the mutiny is accompanied by rape,murder, homicide, or physical injuries.

Note that the first circumstance which qualifies piracydoes not apply to mutiny.

Republic Act No. 6235 (The Anti Hi-Jacking Law)

Anti hi-jacking is another kind of piracy which iscommitted in an aircraft. In other countries, thiscrime is known as aircraft piracy.

Four situations governed by anti hi-jacking law:

(1) usurping or seizing control of an aircraft ofPhilippine registry while it is in flight,compelling the pilots thereof to change the

course or destination of the aircraft;

(2) usurping or seizing control of an aircraft offoreign registry while within Philippineterritory, compelling the pilots thereof to landin any part of Philippine territory;

(3) carrying or loading on board an aircraftoperating as a public utility passenger aircraftin the Philippines, any flammable, corrosive,explosive, or poisonous substance; and

(4) loading, shipping, or transporting on board acargo aircraft operating as a public utility inthe Philippines, any flammable, corrosive,explosive, or poisonous substance if this wasdone not in accordance with the rules andregulations set and promulgated by the AirTransportation Office on this matter.

Between numbers 1 and 2, the point of distinction iswhether the aircraft is of Philippine registry or foreignregistry. The common bar question on this lawusually involves number 1. The important thing isthat before the anti hi-jacking law can apply, the


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aircraft must be in flight. If not in flight, whatevercrimes committed shall be governed by the RevisedPenal Code. The law makes a distinction betweenaircraft of a foreign registry and of Philippine registry.If the aircraft subject of the hi-jack is of Philippineregistry, it should be in flight at the time of the hi- jacking. Otherwise, the anti hi-jacking law will not

apply and the crime is still punished under theRevised Penal Code. The correlative crime may beone of grave coercion or grave threat. If somebody iskilled, the crime is homicide or murder, as the casemay be. If there are some explosives carried there,the crime is destructive arson. Explosives are bynature pyro-techniques. Destruction of property withthe use of pyro-technique is destructive arson. Ifthere is illegally possessed or carried firearm, otherspecial laws will apply.

On the other hand, if the aircraft is of foreign registry,the law does not require that it be in flight before theanti hi-jacking law can apply. This is becauseaircrafts of foreign registry are considered in transit

while they are in foreign countries. Although theymay have been in a foreign country, technically theyare still in flight, because they have to move out ofthat foreign country. So even if any of the actsmentioned were committed while the exterior doors ofthe foreign aircraft were still open, the anti hi-jackinglaw will already govern.

Note that under this law, an aircraft is considered inflight from the moment all exterior doors are closedfollowing embarkation until such time when the samedoors are again opened for disembarkation. Thismeans that there are passengers that boarded. So ifthe doors are closed to bring the aircraft to thehangar, the aircraft is not considered as in flight. The

aircraft shall be deemed to be already in flight even ifits engine has not yet been started.

Questions & Answers

1. The pilots of the Pan Am aircraftwere accosted by some armed men and were told toproceed to the aircraft to fly it to a foreigndestination. The armed men walked with the pilotsand went on board the aircraft. But before they coulddo anything on the aircraft, alert marshals arrestedthem. What crime was committed?

The criminal intent definitely is to take controlof the aircraft, which is hi-jacking. It is a questionnow of whether the anti-hi-jacking law shall govern.

The anti hi-jacking law is applicable in thiscase. Even if the aircraft is not yet about to fly, therequirement that it be in flight does not hold truewhen in comes to aircraft of foreign registry. Even ifthe problem does not say that all exterior doors areclosed, the crime is hi-jacking. Since the aircraft is of

foreign registry, under the law, simply usurping orseizing control is enough as long as the aircraft iswithin Philippine territory, without the requirementthat it be in flight.

Note, however, that there is no hi-jacking inthe attempted stage. This is a special law where the

attempted stage is not punishable.

2. A Philippine Air Lines aircraft isbound for Davao. While the pilot and co-pilot aretaking their snacks at the airport lounge, some of thearmed men were also there. The pilots were followedby these men on their way to the aircraft. As soon asthe pilots entered the cockpit, they pulled out theirfirearms and gave instructions where to fly theaircraft. Does the anti hi-jacking law apply?

No. The passengers have yet to board theaircraft. If at that time, the offenders areapprehended, the law will not apply because theaircraft is not yet in flight. Note that the aircraft is of

Philippine registry.

3. While the stewardess of a PhilippineAir Lines plane bound for Cebu was waiting for thepassenger manifest, two of its passengers seated nearthe pilot surreptitiously entered the pilot cockpit. Atgunpoint, they directed the pilot to fly the aircraft tothe Middle East. However, before the pilot could flythe aircraft towards the Middle East, the offenderswere subdued and the aircraft landed. What crimewas committed?

The aircraft was not yet in flight. Consideringthat the stewardess was still waiting for the passengermanifest, the doors were still open. Hence, the anti

hi-jacking law is not applicable. Instead, the RevisedPenal Code shall govern. The crime committed wasgrave coercion or grave threat, depending uponwhether or not any serious offense violence wasinflicted upon the pilot.

However, if the aircraft were of foreignregistry, the act would already be subject to the antihi-jacking law because there is no requirement forforeign aircraft to be in flight before such law wouldapply. The reason for the distinction is that as long assuch aircraft has not returned to its home base,technically, it is still considered in transit or in flight.

As to numbers 3 and 4 of Republic Act No. 6235, thedistinction is whether the aircraft is a passengeraircraft or a cargo aircraft. In both cases, however,the law applies only to public utility aircraft in thePhilippines. Private aircrafts are not subject to theanti hi-jacking law, in so far as transporting prohibitedsubstances are concerned.

If the aircraft is a passenger aircraft, the prohibition isabsolute. Carrying of any prohibited, flammable,


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corrosive, or explosive substance is a crime underRepublic Act No. 6235. But if the aircraft is only acargo aircraft, the law is violated only when thetransporting of the prohibited substance was not donein accordance with the rules and regulationsprescribed by the Air Transportation Office in thematter of shipment of such things. The Board of

Transportation provides the manner of packing ofsuch kind of articles, the quantity in which they maybe loaded at any time, etc. Otherwise, the anti hi- jacking law does not apply.

However, under Section 7, any physical injury ordamage to property which would result from thecarrying or loading of the flammable, corrosive,explosive, or poisonous substance in an aircraft, theoffender shall be prosecuted not only for violation ofRepublic Act No. 6235, but also for the crime ofphysical injuries or damage to property, as the casemay be, under the Revised Penal Code. There will betwo prosecutions here. Other than this situation, thecrime of physical injuries will be absorbed. If the

explosives were planted in the aircraft to blow up theaircraft, the circumstance will qualify the penalty andthat is not punishable as a separate crime for murder.The penalty is increased under the anti hi-jacking law.

All other acts outside of the four are merely qualifyingcircumstances and would bring about higher penalty.Such acts would not constitute another crime. So thekilling or explosion will only qualify the penalty to ahigher one.

Questions & Answers

1. In the course of the hi-jack, apassenger or complement was shot and killed. Whatcrime or crimes were committed?

The crime remains to be a violation of theanti hi-jacking law, but the penalty thereof shall behigher because a passenger or complement of theaircraft had been killed. The crime of homicide ormurder is not committed.

2. The hi-jackers threatened todetonate a bomb in the course of the hi-jack. Whatcrime or crimes were committed?

Again, the crime is violation of the anti hi- jacking law. The separate crime of grave threat is notcommitted. This is considered as a qualifyingcircumstance that shall serve to increase the penalty.

TITLE II. CRIMES AGAINST THE FUNDAMENTALLAWS OF THE STATE

Crimes against the fundamental laws of the State

1. Arbitrary detention (Art. 124);

2. Delay in the delivery of detained persons tothe proper judicial authorities (Art. 125);

3. Delaying release (Art. 126);

4. Expulsion (Art. 127);

5. Violation of domicile (Art. 128);

6. Search warrants maliciously obtained andabuse in the service of those legally obtained(Art. 129);

7. Searching domicile without witnesses (Art.130);

8. Prohibition, interruption, and dissolution ofpeaceful meetings (Art. 131);

9. Interruption of religious worship (Art. 132);and

10. Offending the religious feelings (Art. 133);

Crimes under this title are those which violate the Billof Rights accorded to the citizens under theConstitution. Under this title, the offenders are publicofficers, except as to the last crime – offending thereligious feelings under Article 133, which refers toany person. The public officers who may be heldliable are only those acting under supposed exerciseof official functions, albeit illegally.In its counterpart in Title IX (Crimes Against Personal

Liberty and Security), the offenders are privatepersons. But private persons may also be liableunder this title as when a private person conspireswith a public officer. What is required is that theprincipal offender must be a public officer. Thus, if aprivate person conspires with a public officer, orbecomes an accessory or accomplice, the privateperson also becomes liable for the same crime. But aprivate person acting alone cannot commit the crimesunder Article 124 to 132 of this title.

Article 124. Arbitrary Detention

Elements

1. Offender is a public officer or employee;

2. He detains a person;

3. The detention is without legal grounds.

Meaning of absence of legal grounds


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1. No crime was committed by the detained;

2. There is no violent insanity of the detainedperson; and

3. The person detained has no ailment whichrequires compulsory confinement in a

hospital.

The crime of arbitrary detention assumes severalforms:

(1) Detaining a person without legal groundsunder;

(2) Having arrested the offended party for legalgrounds but without warrant of arrest, andthe public officer does not deliver thearrested person to the proper judicialauthority within the period of 12, 18, or 36hours, as the case may be; or

(3) Delaying release by competent authority withthe same period mentioned in number 2.

Distinction between arbitrary detention and illegaldetention

1. In arbitrary detention --

The principal offender must be a publicofficer. Civilians can commit the crime ofarbitrary detention except when they conspirewith a public officer committing this crime, orbecome an accomplice or accessory to thecrime committed by the public officer; and

The offender who is a public officer has aduty which carries with it the authority todetain a person.

2. In illegal detention --

The principal offender is a private person.But a public officer can commit the crime ofillegal detention when he is acting in a privatecapacity or beyond the scope of his officialduty, or when he becomes an accomplice oraccessory to the crime committed by aprivate person.

The offender, even if he is a public officer,does not include as his function the power toarrest and detain a person, unless heconspires with a public officer committingarbitrary detention.

Note that in the crime of arbitrary detention, althoughthe offender is a public officer, not any public officercan commit this crime. Only those public officerswhose official duties carry with it the authority to

make an arrest and detain persons can be guilty ofthis crime. So, if the offender does not possess suchauthority, the crime committed by him is illegaldetention. A public officer who is acting outside thescope of his official duties is no better than a privatecitizen.

Questions & Answers

1. A janitor at the Quezon City Hall wasassigned in cleaning the men’s room. One day, henoticed a fellow urinating so carelessly that instead ofurinating at the bowl, he was actually urinating partlyon the floor. The janitor resented this. He steppedout of the men’s room and locked the same. He left.

The fellow was able to come out only after severalhours when people from the outside forcibly openedthe door. Is the janitor liable for arbitrary detention?

No. Even if he is a public officer, he is notpermitted by his official function to arrest and detainpersons. Therefore, he is guilty only of illegaldetention. While the offender is a public officer, hisduty does not include the authority to make arrest;hence, the crime committed is illegal detention.

2. A municipal treasurer has beencourting his secretary. However, the latter alwaysturned him down. Thereafter, she tried to avoid him.One afternoon, the municipal treasurer locked thesecretary inside their office until she started crying.The treasurer opened the door and allowed her to gohome. What crime was committed?

Illegal detention. This is because themunicipal treasurer has no authority to detain aperson although he is a public officer.

In a case decided by the Supreme Court a BarangayChairman who unlawfully detains another was held tobe guilty of the crime of arbitrary detention. This isbecause he is a person in authority vested with the jurisdiction to maintain peace and order within hisbarangay. In the maintenance of such peace andorder, he may cause the arrest and detention oftroublemakers or those who disturb the peace andorder within his barangay. But if the legal basis forthe apprehension and detention does not exist, thenthe detention becomes arbitrary.

Whether the crime is arbitrary detention or illegaldetention, it is necessary that there must be an actualrestraint of liberty of the offended party. If there isno actual restraint, as the offended party may still goto the place where he wants to go, even though therehave been warnings, the crime of arbitrary detentionor illegal detention is not committed. There is eithergrave or light threat.


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However, if the victim is under guard in his movementsuch that there is still restraint of liberty, then thecrime of either arbitrary or illegal detention is stillcommitted.

Question & Answer

The offended party was brought to a placewhich he could not leave because he does not knowwhere he is, although free to move about. Wasarbitrary or illegal detention committed?

Either arbitrary detention or illegal detentionwas committed. If a person is brought to a safehouse, blindfolded, even if he is free to move as hepleases, but if he cannot leave the place, arbitrarydetention or illegal detention is committed.

Distinction between arbitrary detention and unlawfularrest

(1) As to offender

In arbitrary detention, the offender is a publicofficer possessed with authority to makearrests.

In unlawful arrest, the offender may be anyperson.

(2) As to criminal intent

In arbitrary detention, the main reason for

detaining the offended party is to deny him ofhis liberty.

In unlawful arrest, the purpose is to accusethe offended party of a crime he did notcommit, to deliver the person to the properauthority, and to file the necessary charges ina way trying to incriminate him.

When a person is unlawfully arrested, his subsequentdetention is without legal grounds.

Question & Answer

A had been collecting tong from drivers. B, adriver, did not want to contribute to the tong. Oneday, B was apprehended by A, telling him that he wasdriving carelessly. Reckless driving carries with it apenalty of immediate detention and arrest. B wasbrought to the Traffic Bureau and was detained thereuntil the evening. When A returned, he opened thecell and told B to go home. Was there a crime ofarbitrary detention or unlawful arrest?

Arbitrary detention. The arrest of B was onlyincidental to the criminal intent of the offender todetain him. But if after putting B inside the cell, hewas turned over to the investigating officer whobooked him and filed a charge of reckless imprudenceagainst him, then the crime would be unlawful arrest.

The detention of the driver is incidental to thesupposed crime he did not commit. But if there is nosupposed crime at all because the driver was notcharged at all, he was not given place under bookingsheet or report arrest, then that means that the onlypurpose of the offender is to stop him from driving his jeepney because he refused to contribute to the tong.

Article 125. Delay in the Delivery of DetainedPersons to the Proper Judicial Authorities

Elements


2. He detains a person for some legal ground;

3. He fails to deliver such person to the proper judicial authorities within –

a. 12 hour for light penalties;

b. 18 hours for correctional penalties;and

c. 36 hours for afflictive or capitalpenalties.

This is a form of arbitrary detention. At thebeginning, the detention is legal since it is in thepursuance of a lawful arrest. However, the detentionbecomes arbitrary when the period thereof exceeds12, 18 or 36 hours, as the case may be, depending onwhether the crime is punished by light, correctional orafflictive penalty or their equivalent.

The period of detention is 12 hours for light offenses,18 hours for correctional offences and 36 hours forafflictive offences, where the accused may bedetained without formal charge. But he must cause aformal charge or application to be filed with theproper court before 12, 18 or 36 hours lapse.

Otherwise he has to release the person arrested.

Note that the period stated herein does not includethe nighttime. It is to be counted only when theprosecutor’s office is ready to receive the complaint or

information.

This article does not apply if the arrest is with awarrant. The situation contemplated here is an arrestwithout a warrant.


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Question & Answer

Within what period should a police officer whohas arrested a person under a warrant of arrest turn

over the arrested person to the judicial authority?

There is no time limit specified except thatthe return must be made within a reasonable time.The period fixed by law under Article 125 does notapply because the arrest was made by virtue of awarrant of arrest.

When a person is arrested without a warrant, itmeans that there is no case filed in court yet. If thearresting officer would hold the arrested person there,he is actually depriving the arrested of his right tobail. As long as there is no charge in the court yet,the arrested person cannot obtain bail because bail

may only be granted by the court. The spirit of thelaw is to have the arrested person delivered to the jurisdiction of the court.

If the arrest is by virtue of a warrant, it means thatthere is already a case filed in court. When aninformation is filed in court, the amount of bailrecommended is stated. The accused person is notreally denied his right to bail. Even if he isinterrogated in the police precinct, he can already filebail.

Note that delivery of the arrested person to theproper authorities does not mean physical delivery orturn over of arrested person to the court. It simply

means putting the arrested person under the jurisdiction of the court. This is done by filing thenecessary complaint or information against the personarrested in court within the period specified in Article125. The purpose of this is for the court to determinewhether the offense is bailable or not and if bailable,to allow him the right to bail.

Under the Rule 114 of the Revised Rules of Court, thearrested person can demand from the arresting officerto bring him to any judge in the place where he wasarrested and post the bail here. Thereupon, thearresting officer may release him. The judge whogranted the bail will just forward the litimus of thecase to the court trying his case. The purpose is inorder to deprive the arrested person of his right topost the bail.

Under the Revised Rules of Court, when the personarrested is arrested for a crime which gives him theright to preliminary investigation and he wants toavail his right to a preliminary investigation, he wouldhave to waive in writing his rights under Article 125so that the arresting officer will not immediately filethe case with the court that will exercise jurisdiction

over the case. If he does not want to waive this inwriting, the arresting officer will have to comply withArticle 125 and file the case immediately in courtwithout preliminary investigation. In such case, thearrested person, within five days after learning thatthe case has been filed in court without preliminaryinvestigation, may ask for preliminary investigation.

In this case, the public officer who made the arrestwill no longer be liable for violation of Article 125.

Question & Answer

The arrest of the suspect was done in BaguioCity. On the way to Manila, where the crime wascommitted, there was a typhoon so the suspect couldnot be brought to Manila until three days later. Wasthere a violation of Article 125?

There was a violation of Article 125. Thecrime committed was arbitrary detention in the form

of delay in the delivery of arrested person to theproper judicial authority. The typhoon or flood is amatter of defense to be proved by the accused, thearresting officer, as to whether he is liable. In thissituation, he may be exempt under paragraph 7 ofArticle 12.

Before Article 125 may be applied, it is necessary thatinitially, the detention of the arrested person must belawful because the arrest is based on legal grounds.If the arrest is made without a warrant, thisconstitutes an unlawful arrest. Article 269, not Article125, will apply. If the arrest is not based on legalgrounds, the arrest is pure and simple arbitrary

detention. Article 125 contemplates a situation wherethe arrest was made without warrant but based onlegal grounds. This is known as citizen’s arrest.

Article 126. Delaying Release

Acts punished

1. Delaying the performance of a judicial orexecutive order for the release of a prisoner;

2. Unduly delaying the service of the notice ofsuch order to said prisoner;

3. Unduly delaying the proceedings upon anypetition for the liberation of such person.

Elements


2. There is a judicial or executive order for therelease of a prisoner or detention prisoner, or


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that there is a proceeding upon a petition forthe liberation of such person;

3. Offender without good reason delays –

a. the service of the notice of suchorder to the prisoner;

b. the performance of such judicial orexecutive order for the release of theprisoner; or

c. the proceedings upon a petition forthe release of such person.

Article 127. Expulsion

Acts punished

1. Expelling a person from the Philippines;

2. Compelling a person to change his residence.

Elements


2. He either –

a. expels any person from thePhilippines; or

b. compels a person to changeresidence;

3. Offender is not authorized to do so by law.

The essence of this crime is coercion but the specificcrime is “expulsion” when committed by a publicofficer. If committed by a private person, the crime isgrave coercion.In Villavicencio v. Lukban, 39 Phil 778, the mayorof the City of Manila wanted to make the city freefrom prostitution. He ordered certain prostitutes tobe transferred to Davao, without observing dueprocesses since they have not been charged with anycrime at all. It was held that the crime committedwas expulsion.

Questions & Answers

1. Certain aliens were arrested and theywere just put on the first aircraft which brought themto the country so that they may be out without dueprocess of law. Was there a crime committed?

Yes. Expulsion.

2. If a Filipino citizen is sent out of thecountry, what crime is committed?

Grave coercion, not expulsion, because aFilipino cannot be deported. This crime refers only to

aliens.

Article 128. Violation of Domicile

Acts punished

1. Entering any dwelling against the will of theowner thereof;

2. Searching papers or other effects foundtherein without the previous consent of such

owner; or

3. Refusing to leave the premises, after havingsurreptitiously entered said dwelling and afterhaving been required to leave the same

Common elements


2. He is not authorized by judicial order to enterthe dwelling or to make a search therein forpapers or other effects.

Circumstances qualifying the offense

1. If committed at nighttime; or

2. If any papers or effects not constitutingevidence of a crime are not returnedimmediately after the search made byoffender.

Under Title IX (Crimes against Personal Liberty andSecurity), the corresponding article is qualifiedtrespass to dwelling under Article 280. Article 128 islimited to public officers. The public officers who maybe liable for crimes against the fundamental laws arethose who are possessed of the authority to executesearch warrants and warrants of arrests.

Under Rule 113 of the Revised Rules of Court, when aperson to be arrested enters a premise and closes itthereafter, the public officer, after giving notice of anarrest, can break into the premise. He shall not beliable for violation of domicile.


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There are only three recognized instances whensearch without a warrant is considered valid, and,therefore, the seizure of any evidence done is alsovalid. Outside of these, search would be invalid andthe objects seized would not be admissible inevidence.

(1) Search made incidental to a valid arrest;

(2) Where the search was made on a movingvehicle or vessel such that the exigency of hesituation prevents the searching officer fromsecuring a search warrant;

(3) When the article seized is within plain view ofthe officer making the seizure without makinga search therefore.

There are three ways of committing the violation ofArticle 128:

(1) By simply entering the dwelling of another if

such entering is done against the will of theoccupant. In the plain view doctrine, publicofficer should be legally entitled to be in theplace where the effects were found. If heentered the place illegally and he saw theeffects, doctrine inapplicable; thus, he isliable for violation of domicile.

(2) Public officer who enters with consentsearches for paper and effects without theconsent of the owner. Even if he is welcomein the dwelling, it does not mean he haspermission to search.

(3) Refusing to leave premises after surreptitious

entry and being told to leave the same. Theact punished is not the entry but the refusalto leave. If the offender upon being directedto eave, followed and left, there is no crimeof violation of domicile. Entry must be donesurreptitiously; without this, crime may beunjust vexation. But if entering was doneagainst the will of the occupant of the house,meaning there was express or impliedprohibition from entering the same, even ifthe occupant does not direct him to leave,the crime of is already committed because itwould fall in number 1.

Questions & Answers

1. It was raining heavily. A policemantook shelter in one person’s house. The ownerobliged and had his daughter serve the police somecoffee. The policeman made a pass at the daughter.The owner of the house asked him to leave. Does thisfall under Article 128?

No. It was the owner of the house who letthe policeman in. The entering is not surreptitious.

2. A person surreptitiously enters thedwelling of another. What crime or crimes werepossibly committed?

The crimes committed are (1) qualifiedtrespass to dwelling under Article 280, if there was anexpress or implied prohibition against entering. Thisis tantamount to entering against the will of theowner; and (2) violation of domicile in the third formif he refuses to leave after being told to.

Article 129. Search Warrants MaliciouslyObtained, and Abuse in the Service of ThoseLegally Obtained

Acts punished

1. Procuring a search warrant without just

cause;

Elements

1. Offender is a public officer oremployee;

2. He procures a search warrant;

3. There is no just cause.

2. Exceeding his authority or by usingunnecessary severity in executing a searchwarrant legally procured.

Elements

1. Offender is a public officer oremployee;

2. He has legally procured a searchwarrant;

3. He exceeds his authority or usesunnecessary severity in executingthe same.

Article 130. Searching Domicile withoutWitnesses

Elements


2. He is armed with search warrant legallyprocured;


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3. He searches the domicile, papers or otherbelongings of any person;

4. The owner, or any members of his family, ortwo witnesses residing in the same localityare not present.

Crimes under Articles 129 and 130 are referred to asviolation of domicile. In these articles, the search ismade by virtue of a valid warrant, but the warrantnotwithstanding, the liability for the crime is stillincurred through the following situations:

(1) Search warrant was irregularly obtained – This means there was no probable causedetermined in obtaining the search warrant.Although void, the search warrant is entitledto respect because of presumption ofregularity. One remedy is a motion to quashthe search warrant, not refusal to abide by it.The public officer may also be prosecuted for

perjury, because for him to succeed inobtaining a search warrant without aprobable cause, he must have perjuredhimself or induced someone to commitperjury to convince the court.

(2) The officer exceeded his authority under thewarrant – To illustrate, let us say that therewas a pusher in a condo unit. The PNPNarcotics Group obtained a search warrantbut the name of person in the search warrantdid not tally with the address stated.Eventually, the person with the same namewas found but in a different address. Theoccupant resisted but the public officer

insisted on the search. Drugs were found andseized and occupant was prosecuted andconvicted by the trial court. The SupremeCourt acquitted him because the publicofficers are required to follow the searchwarrant to the letter. They have nodiscretion on the matter. Plain view doctrineis inapplicable since it presupposes that theofficer was legally entitled to be in the placewhere the effects where found. Since theentry was illegal, plain view doctrine does notapply.

(3) When the public officer employs unnecessaryor excessive severity in the implementation ofthe search warrant. The search warrant is nota license to commit destruction.

(4) Owner of dwelling or any member of thefamily was absent, or two witnesses residingwithin the same locality were not presentduring the search.

Article 131. Prohibition, Interruption, andDissolution of Peaceful Meetings

Elements


2. He performs any of the following acts:

a. prohibiting or by interrupting,without legal ground, the holding of apeaceful meeting, or by dissolvingthe same;

b. hindering any person from joiningany lawful association, or attendingany of its meetings;

c. prohibiting or hindering any personfrom addressing, either alone ortogether with others, any petition to

the authorities for the correction ofabuses or redress of grievances.

The government has a right to require a permit beforeany gathering could be made. Any meeting without apermit is a proceeding in violation of the law. Thatbeing true, a meeting may be prohibited, interrupted,or dissolved without violating Article 131 of theRevised Penal Code.

But the requiring of the permit shall be in exerciseonly of the government’s regulatory powers and not really to prevent peaceful assemblies as the publicmay desire. Permit is only necessary to regulate the

peace so as not to inconvenience the public. Thepermit should state the day, time and the place wherethe gathering may be held. This requirement is,therefore, legal as long as it is not being exercised inas a prohibitory power.

If the permit is denied arbitrarily, Article 131 isviolated. If the officer would not give the permitunless the meeting is held in a particular place whichhe dictates defeats the exercise of the right topeaceably assemble, Article 131 is violated.

At the beginning, it may happen that the assembly islawful and peaceful. If in the course of the assemblythe participants commit illegal acts like oral

defamation or inciting to sedition, a public officer orlaw enforcer can stop or dissolve the meeting. Thepermit given is not a license to commit a crime.

There are two criteria to determine whether Article131 would be violated:

(1) Dangerous tendency rule – applicable intimes of national unrest such as to preventcoup d’etat.


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(2) Clear and present danger rule – applied intimes of peace. Stricter rule.

Distinctions between prohibition, interruption, ordissolution of peaceful meetings under Article 131,and tumults and other disturbances, under Article 153

(1) As to the participation of the public officer

In Article 131, the public officer is not aparticipant. As far as the gathering isconcerned, the public officer is a third party.

If the public officer is a participant of theassembly and he prohibits, interrupts, ordissolves the same, Article 153 is violated ifthe same is conducted in a public place.

(2) As to the essence of the crime

In Article 131, the offender must be a publicofficer and, without any legal ground, he

prohibits, interrupts, or dissolves a peacefulmeeting or assembly to prevent the offendedparty from exercising his freedom of speechand that of the assembly to petition agrievance against the government.

In Article 153, the offender need not be apublic officer. The essence of the crime isthat of creating a serious disturbance of anysort in a public office, public building or evena private place where a public function isbeing held.

Article 132. Interruption of Religious Worship

Elements


2. Religious ceremonies or manifestations of anyreligious are about to take place or are goingon;

3. Offender prevents or disturbs the same.

Qualified if committed by violence or threat.

Article 133. Offending the Religious Feelings

Elements

1. Acts complained of were performed in a placedevoted to religious worship, or during thecelebration of any religious ceremony;

2. The acts must be notoriously offensive to thefeelings of the faithful.

There must be deliberate intent to hurt the feelings ofthe faithful.

TITLE III. CRIMES AGAINST PUBLIC ORDER

Crimes against public order

1. Rebellion or insurrection (Art. 134);

2. Conspiracy and proposal to commit rebellion(Art. 136);

3. Disloyalty to public officers or employees(Art. 137);

4. Inciting to rebellion (Art. 138);

5. Sedition (Art. 139);

6. Conspiracy to commit sedition (Art. 141);

7. Inciting to sedition (Art. 142);

8. Acts tending to prevent the meeting ofCongress and similar bodies (Art. 143);

9. Disturbance of proceedings of Congress orsimilar bodies (Art. 144);

10. Violation of parliamentary immunity (Art.145);

11. Illegal assemblies (Art. 146);

12. Illegal associations (Art. 147);

13. Direct assaults (Art. 148);

14. Indirect assaults (Art. 149);

15. Disobedience to summons issued byCongress, its committees, etc., by theconstitutional commissions, its committees,etc. (Art. 150);

16. Resistance and disobedience to a person inauthority or the agents of such person (Art.

151);

17. Tumults and other disturbances of publicorder (Art. 153);

18. Unlawful use of means of publication andunlawful utterances (Art. 154);

19. Alarms and scandals (Art. 155);


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20. Delivering prisoners from jails (Art. 156);

21. Evasion of service of sentence (Art. 157);

22. Evasion on occasion of disorders (Art. 158);

23. Violation of conditional pardon (Art. 159);

and

24. Commission of another crime during serviceof penalty imposed for another previousoffense (Art. 160).

Article 134. Rebellion or Insurrection

Elements

1. There is a public uprising and taking armsagainst the government;

2. The purpose of the uprising or movement is –

a. to remove from the allegiance to thegovernment or its laws Philippineterritory or any part thereof, or anybody of land, naval, or other armedforces;

or

b. to deprive the Chief Executive orCongress, wholly or partially, of anyof their powers or prerogatives.

The essence of this crime is a public uprising with the

taking up of arms. It requires a multitude of people.It aims to overthrow the duly constituted government.It does not require the participation of any member ofthe military or national police organization or publicofficers and generally carried out by civilians. Lastly,the crime can only be committed through force andviolence.

Rebellion and insurrection are not synonymous.Rebellion is more frequently used where the object ofthe movement is completely to overthrow andsupersede the existing government; while insurrectionis more commonly employed in reference to amovement which seeks merely to effect some changeof minor importance, or to prevent the exercise ofgovernmental authority with respect to particularmatters of subjects (Reyes, citing 30 Am. Jr. 1).

Rebellion can now be complexed with commoncrimes. Not long ago, the Supreme Court, in Enrilev. Salazar, 186 SCRA 217, reiterated and affirmedthe rule laid down in People v. Hernandez, 99 Phil

515, that rebellion may not be complexed withcommon crimes which are committed in furtherancethereof because they are absorbed in rebellion. Inview of said reaffirmation, some believe that it hasbeen a settled doctrine that rebellion cannot becomplexed with common crimes, such as killing anddestruction of property, committed on the occasion

and in furtherance thereof.

This thinking is no longer correct; there is no legalbasis for such rule now.

The statement in People v. Hernandez that commoncrimes committed in furtherance of rebellion areabsorbed by the crime of rebellion, was dictated bythe provision of Article 135 of the Revised Penal Codeprior to its amendment by the Republic Act No. 6968(An Act Punishing the Crime of Coup D’etat), which

became effective on October 1990. Prior to itsamendment by Republic Act No. 6968, Article 135punished those “who while holding any public office or

employment, take part therein” by any of these acts:

engaging in war against the forces of Government;destroying property; committing serious violence;exacting contributions, diverting funds for the lawfulpurpose for which they have been appropriated.

Since a higher penalty is prescribed for the crime ofrebellion when any of the specified acts arecommitted in furtherance thereof, said acts arepunished as components of rebellion and, therefore,are not to be treated as distinct crimes. The sameacts constitute distinct crimes when committed on adifferent occasion and not in furtherance of rebellion.In short, it was because Article 135 then punishedsaid acts as components of the crime of rebellion thatprecludes the application of Article 48 of the RevisedPenal Code thereto. In the eyes of the law then, saidacts constitute only one crime and that is rebellion.The Hernandez doctrine was reaffirmed in Enrile v.Salazar because the text of Article 135 has remainedthe same as it was when the Supreme Court resolvedthe same issue in the People v. Hernandez. So theSupreme Court invited attention to this fact and thusstated:

“There is a an apparent need to restructure the law

on rebellion, either to raise the penalty therefore or toclearly define and delimit the other offenses to beconsidered absorbed thereby, so that it cannot beconveniently utilized as the umbrella for every sort of

illegal activity undertaken in its name. The court hasno power to effect such change, for it can onlyinterpret the law as it stands at any given time, andwhat is needed lies beyond interpretation. Hopefully,Congress will perceive the need for promptly seizingthe initiative in this matter, which is purely within itsprovince.”

Obviously, Congress took notice of thispronouncement and, thus, in enacting Republic ActNo. 6968, it did not only provide for the crime of


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coup d’etat in the Revised Penal Code but moreover,

deleted from the provision of Article 135 that portionreferring to those –

“…who, while holding any public office or employmenttakes part therein [rebellion or insurrection],engaging in war against the forces of government,

destroying property or committing serious violence,exacting contributions or diverting public funds fromthe lawful purpose for which they have beenappropriated …”

Hence, overt acts which used to be punished ascomponents of the crime of rebellion have beensevered therefrom by Republic Act No. 6968. Thelegal impediment to the application of Article 48 torebellion has been removed. After the amendment,common crimes involving killings, and/or destructionsof property, even though committed by rebels infurtherance of rebellion, shall bring about complexcrimes of rebellion with murder/homicide, or rebellionwith robbery, or rebellion with arson as the case may

be.

To reiterate, before Article 135 was amended, ahigher penalty is imposed when the offender engagesin war against the government. "War" connotesanything which may be carried out in pursuance ofwar. This implies that all acts of war or hostilities likeserious violence and destruction of propertycommitted on occasion and in pursuance of rebellionare component crimes of rebellion which is why Article48 on complex crimes is inapplicable. In amendingArticle135, the acts which used to be componentcrimes of rebellion, like serious acts of violence, havebeen deleted. These are now distinct crimes. Thelegal obstacle for the application of Article 48,

therefore, has been removed. Ortega says legislatorswant to punish these common crimes independentlyof rebellion. Ortega cites no case overturning Enrilev. Salazar.

In People v. Rodriguez, 107 Phil. 569, it was heldthat an accused already convicted of rebellion maynot be prosecuted further for illegal possession offirearm and ammunition, a violation of PresidentialDecree No. 1866, because this is a necessary elementor ingredient of the crime of rebellion with which theaccused was already convicted.

However, in People v. Tiozon, 198 SCRA 368, itwas held that charging one of illegal possession offirearms in furtherance of rebellion is proper becausethis is not a charge of a complex crime. A crimeunder the Revised Penal Code cannot be absorbed bya statutory offense.In People v. de Gracia, it was ruled that illegalpossession of firearm in furtherance of rebellion underPresidential Decree No. 1866 is distinct from thecrime of rebellion under the Revised Penal Code and,therefore, Article 135 (2) of the Revised Penal Codeshould not apply. The offense of illegal possession of

firearm is a malum prohibitum, in which case, goodfaith and absence of criminal intent are not validdefenses.

In People v. Lobedioro, an NPA cadre killed apoliceman and was convicted for murder. Heappealed invoking rebellion. The Supreme Court

found that there was no evidence shown to furtherthe end of the NPA movement. It held that theremust be evidence shown that the act furthered thecause of the NPA; it is not enough to say it.

Rebellion may be committed even without a singleshot being fired. No encounter needed. Mere publicuprising with arms enough.

Article 135, as amended, has two penalties: a higherpenalty for the promoters, heads and maintainers ofthe rebellion; and a lower penalty for those who areonly followers of the rebellion.

Distinctions between rebellion and sedition

(1) As to nature

In rebellion, there must be taking up or armsagainst the government.

In sedition, it is sufficient that the publicuprising be tumultuous.

(2) As to purpose

In rebellion, the purpose is always political.

In sedition, the purpose may be political orsocial. Example: the uprising of squattersagainst Forbes park residents. The purpose insedition is to go against establishedgovernment, not to overthrow it.

When any of the objectives of rebellion is pursued butthere is no public uprising in the legal sense, thecrime is direct assault of the first form. But if there isrebellion, with public uprising, direct assault cannotbe committed.

Article 134-A. Coup d' etat

Elements

1. Offender is a person or persons belonging tothe military or police or holding any publicoffice or employment;

2. It is committed by means of a swift attackaccompanied by violence, intimidation,threat, strategy or stealth;


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3. The attack is directed against the dulyconstituted authorities of the Republic of thePhilippines, or any military camp orinstallation, communication networks, publicutilities or other facilities needed for theexercise and continued possession of power;

4. The purpose of the attack is to seize ordiminish state power.

The essence of the crime is a swift attack upon thefacilities of the Philippine government, military campsand installations, communication networks, publicutilities and facilities essential to the continuedpossession of governmental powers. It may becommitted singly or collectively and does not requirea multitude of people. The objective may not be tooverthrow the government but only to destabilize orparalyze the government through the seizure offacilities and utilities essential to the continuedpossession and exercise of governmental powers. It

requires as principal offender a member of the AFP orof the PNP organization or a public officer with orwithout civilian support. Finally, it may be carried outnot only by force or violence but also through stealth,threat or strategy.

Persons liable for rebellion, insurrection or coup d'etat under Article 135

1. The leaders –

a. Any person who promotes, maintainsor heads a rebellion or insurrection;or

b. Any person who leads, directs orcommands others to undertake acoup d' etat;

2. The participants –

a. Any person who participates orexecutes the commands of others inrebellion, insurrection or coup d'etat;

b. Any person not in the governmentservice who participates, supports,finances, abets or aids in undertakinga coup d' etat.

Article 136. Conspiracy and Proposal to CommitCoup d' etat, Rebellion or Insurrection

Conspiracy and proposal to commit rebellion are twodifferent crimes, namely:1. Conspiracy to commit rebellion; and

2. Proposal to commit rebellion.

There is conspiracy to commit rebellion when two ormore persons come to an agreement to rise publiclyand take arms against government for any of thepurposes of rebellion and decide to commit it.

There is proposal to commit rebellion when the person

who has decided to rise publicly and take armsagainst the government for any of the purposes ofrebellion proposes its execution to some other personor persons.

Article 137. Disloyalty of Public Officers orEmployees

Acts punished

1. By failing to resist a rebellion by all themeans in their power;

2. By continuing to discharge the duties of their

offices under the control of the rebels; or

3. By accepting appointment to office underthem.

Offender must be a public officer or employee.

Article 138. Inciting to Rebellion or Insurrection

Elements

1. Offender does not take arms or is not in openhostility against the government;

2. He incites others to the execution of any ofthe acts of rebellion;

3. The inciting is done by means of speeches,proclamations, writings, emblems, banners orother representations tending to the sameend.

Distinction between inciting to rebellion and proposalto commit rebellion

1. In both crimes, offender induces another tocommit rebellion.

2. In proposal, the person who proposes hasdecided to commit rebellion; in inciting torebellion, it is not required that the offenderhas decided to commit rebellion.


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3. In proposal, the person who proposes theexecution of the crime uses secret means; ininciting to rebellion, the act of inciting is donepublicly.

Article 139. Sedition

Elements

1. Offenders rise publicly and tumultuously;

2. Offenders employ force, intimidation, or othermeans outside of legal methods;

3. Purpose is to attain any of the followingobjects:

a. To prevent the promulgation orexecution of any law or the holdingof any popular election;

b. To prevent the national governmentor any provincial or municipalgovernment, or any public officerfrom exercising its or his functions orprevent the execution of anadministrative order;

c. To inflict any act of hate or revengeupon the person or property of anypublic officer or employee;

d. To commit, for any political or socialend, any act of hate or revengeagainst private persons or any social

classes;

e. To despoil for any political or socialend, any person, municipality orprovince, or the national governmentof all its property or any part thereof.

The crime of sedition does not contemplate the takingup of arms against the government because thepurpose of this crime is not the overthrow of thegovernment. Notice from the purpose of the crime ofsedition that the offenders rise publicly and createcommotion ad disturbance by way of protest toexpress their dissent and obedience to the

government or to the authorities concerned. This islike the so-called civil disobedience except that themeans employed, which is violence, is illegal.

Persons liable for sedition under Article 140

1. The leader of the sedition; and

2. Other person participating in the sedition.

Article 141. Conspiracy to Commit Sedition

In this crime, there must be an agreement and adecision to rise publicly and tumultuously to attain

any of the objects of sedition.

There is no proposal to commit sedition.

Article 142. Inciting to Sedition

Acts punished

1. Inciting others to the accomplishment of anyof the acts which constitute sedition bymeans of speeches, proclamations, writings,emblems, etc.;

2. Uttering seditious words or speeches which

tend to disturb the public peace;

3. Writing, publishing, or circulating scurrilouslibels against the government or any of theduly constituted authorities thereof, whichtend to disturb the public peace.

Elements

1. Offender does not take direct part in thecrime of sedition;

2. He incites others to the accomplishment ofany of the acts which constitute sedition; and

3. Inciting is done by means of speeches,proclamations, writings, emblems, cartoons,banners, or other representations tendingtowards the same end.

Only non-participant in sedition may be liable.

Considering that the objective of sedition is to expressprotest against the government and in the processcreating hate against public officers, any act that willgenerate hatred against the government or a publicofficer concerned or a social class may amount toInciting to sedition. Article 142 is, therefore, quitebroad.

The mere meeting for the purpose of discussinghatred against the government is inciting to sedition.Lambasting government officials to discredit thegovernment is Inciting to sedition. But if theobjective of such preparatory actions is the overthrowof the government, the crime is inciting to rebellion.


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Article 143. Acts Tending to Prevent theMeeting of the Congress of the Philippines andSimilar Bodies

Elements

1. There is a projected or actual meeting of

Congress or any of its committees orsubcommittees, constitutional committees ordivisions thereof, or of any provincial boardor city or municipal council or board;

2. Offender, who may be any person, preventssuch meetings by force or fraud.

Article 144. Disturbance of Proceedings

Elements

1. There is a meeting of Congress or any of itscommittees or subcommittees, constitutional

commissions or committees or divisionsthereof, or of any provincial board or city ormunicipal council or board;

2. Offender does any of the following acts:

a. He disturbs any of such meetings;

b. He behaves while in the presence ofany such bodies in such a manner asto interrupt its proceedings or toimpair the respect due it.

Article 145. Violation of ParliamentaryImmunity

Acts punished

1. Using force, intimidation, threats, or frauds toprevent any member of Congress fromattending the meetings of Congress or of anyof its committees or subcommittees,constitutional commissions or committees ordivisions thereof, or from expressing hisopinion or casting his vote;

Elements

1. Offender uses force, intimidation,threats or fraud;

2. The purpose of the offender is toprevent any member of Congressfrom –

a. attending the meetings ofthe Congress or of any of its

committees or constitutionalcommissions, etc.;

b. expressing his opinion; or

c. casting his vote.

2. Arresting or searching any member thereofwhile Congress is in regular or specialsession, except in case such member hascommitted a crime punishable under theCode by a penalty higher than prision mayor.

Elements

1. Offender is a public officer ofemployee;

2. He arrests or searches any memberof Congress;

3. Congress, at the time of arrest or

search, is in regular or specialsession;

4. The member arrested or searchedhas not committed a crimepunishable under the Code by apenalty higher than prision mayor.

Under Section 11, Article VI of the Constitution, apublic officer who arrests a member of Congress whohas committed a crime punishable by prision mayor(six years and one day, to 12 years) is not liableArticle 145.

According to Reyes, to be consistent with the

Constitution, the phrase "by a penalty higher thanprision mayor" in Article 145 should be amended toread: "by the penalty of prision mayor or higher."

Article 146. Illegal Assemblies

Acts punished

1. Any meeting attended by armed persons forthe purpose of committing any of the crimespunishable under the Code;

Elements

1. There is a meeting, a gathering orgroup of persons, whether in fixedplace or moving;

2. The meeting is attended by armedpersons;

3. The purpose of the meeting is tocommit any of the crimes punishableunder the Code.


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2. Any meeting in which the audience, whether

armed or not, is incited to the commission ofthe crime of treason, rebellion or insurrection,sedition, or assault upon person in authorityor his agents.

1. There is a meeting, a gathering orgroup of persons, whether in a fixedplace or moving;

2. The audience, whether armed or not,is incited to the commission of thecrime of treason, rebellion orinsurrection, sedition or directassault.

Persons liable for illegal assembly

1. The organizer or leaders of the meeting;

2. Persons merely present at the meeting, whomust have a common intent to commit thefelony of illegal assembly.

If any person present at the meeting carries anunlicensed firearm, it is presumed that the purpose ofthe meeting insofar as he is concerned is to commitacts punishable under the Revised Penal Code, and heis considered a leader or organizer of the meeting.

The gravamen of the offense is mere assembly of orgathering of people for illegal purpose punishable bythe Revised Penal Code. Without gathering, there isno illegal assembly. If unlawful purpose is a crime

under a special law, there is no illegal assembly. Forexample, the gathering of drug pushers to facilitatedrug trafficking is not illegal assembly because thepurpose is not violative of the Revised Penal Code butof The Dangerous Drugs Act of 1972, as amended,which is a special law.

Two forms of illegal assembly

(1) No attendance of armed men, but persons inthe meeting are incited to commit treason,rebellion or insurrection, sedition or assaultupon a person in authority. When the illegalpurpose of the gathering is to incite people tocommit the crimes mentioned above, thepresence of armed men is unnecessary. Themere gathering for the purpose is sufficient tobring about the crime already.

(2) Armed men attending the gathering – If theillegal purpose is other than those mentionedabove, the presence of armed men during thegathering brings about the crime of illegalassembly.

Example: Persons conspiring to rob a bankwere arrested. Some were with firearms.Liable for illegal assembly, not for conspiracy,but for gathering with armed men.

Distinction between illegal assembly and illegalassociation

In illegal assembly, the basis of liability is thegathering for an illegal purpose which constitutes acrime under the Revised Penal Code.

In illegal association, the basis is the formation of ororganization of an association to engage in anunlawful purpose which is not limited to a violation ofthe Revised Penal Code. It includes a violation of aspecial law or those against public morals. Meaningof public morals: inimical to public welfare; it hasnothing to do with decency., not acts of obscenity.

Article 147. Illegal Associations

Illegal associations

1. Associations totally or partially organized forthe purpose of committing any of the crimespunishable under the Code;

2. Associations totally or partially organized forsome purpose contrary to public morals.

Persons liable

1. Founders, directors and president of theassociation;

2. Mere members of the association.

Distinction between illegal association and illegalassembly

1. In illegal association, it is not necessary thatthere be an actual meeting.

In illegal assembly, it is necessary that thereis an actual meeting or assembly or armedpersons for the purpose of committing any ofthe crimes punishable under the Code, or ofindividuals who, although not armed, areincited to the commission of treason,rebellion, sedition, or assault upon a personin authority or his agent.

2. In illegal association, it is the act of formingor organizing and membership in theassociation that are punished.


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In illegal assembly, it is the meeting andattendance at such meeting that arepunished.

3. In illegal association, the persons liable are(1) the founders, directors and president; and(2) the members.

In illegal assembly, the persons liable are (1)the organizers or leaders of the meeting and(2) the persons present at meeting.

Article 148. Direct Assault

Acts punished

1. Without public uprising, by employing forceor intimidation for the attainment of any ofthe purposes enumerated in defining thecrimes of rebellion and sedition;

Elements

1. Offender employs force orintimidation;

2. The aim of the offender is to attainany of the purposes of the crime ofrebellion or any of the objects of thecrime of sedition;

3. There is no public uprising.

2. Without public uprising, by attacking, byemploying force or by seriously intimidatingor by seriously resisting any person in

authority or any of his agents, while engagedin the performance of official duties, or onoccasion of such performance.

Elements

1. Offender makes an attack, employsforce, makes a serious intimidation,or makes a serious resistance;

2. The person assaulted is a person inauthority or his agent;

3. At the time of the assault, the personin authority or his agent is engagedin the actual performance of officialduties, or that he is assaulted byreason of the past performance ofofficial duties;

4. Offender knows that the one he isassaulting is a person in authority orhis agent in the exercise of hisduties.

5. There is no public uprising.

The crime is not based on the material consequenceof the unlawful act. The crime of direct assaultpunishes the spirit of lawlessness and the contempt orhatred for the authority or the rule of law.

To be specific, if a judge was killed while he washolding a session, the killing is not the direct assault,but murder. There could be direct assault if theoffender killed the judge simply because the judge isso strict in the fulfillment of his duty. It is the spirit ofhate which is the essence of direct assault.

So, where the spirit is present, it is always complexedwith the material consequence of the unlawful act. Ifthe unlawful act was murder or homicide committedunder circumstance of lawlessness or contempt ofauthority, the crime would be direct assault withmurder or homicide, as the case may be. In theexample of the judge who was killed, the crime is

direct assault with murder or homicide.

The only time when it is not complexed is whenmaterial consequence is a light felony, that is, slightphysical injury. Direct assault absorbs the lighterfelony; the crime of direct assault can not beseparated from the material result of the act. So, ifan offender who is charged with direct assault and inanother court for the slight physical Injury which ispart of the act, acquittal or conviction in one is a barto the prosecution in the other.

Example of the first form of direct assault:

Three men broke into a National Food Authority

warehouse and lamented sufferings of the people.They called on people to help themselves to all therice. They did not even help themselves to a singlegrain.

The crime committed was direct assault. There wasno robbery for there was no intent to gain. The crimeis direct assault by committing acts of sedition underArticle 139 (5), that is, spoiling of the property, forany political or social end, of any person municipalityor province or the national government of all or anyits property, but there is no public uprising.

Person in authority is any person directlyvested with jurisdiction, whether as an individual oras a member of some court or governmentcorporation, board, or commission. A barangaychairman is deemed a person in authority.

Agent of a person in authority is any personwho by direct provision of law or by election or byappointment by competent authority, is charged withthe maintenance of public order and the protectionand security of life and property, such as a barangaycouncilman, barrio policeman, barangay leader and


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any person who comes to the aid of a person inauthority.

In applying the provisions of Articles 148 and 151,teachers, professors, and persons charged with thesupervision of public or duly recognized privateschools, colleges and universities and lawyers in the

actual performance of their duties or on the occasionof such performance, shall be deemed a person inauthority.

In direct assault of the first form, the stature of theoffended person is immaterial. The crime ismanifested by the spirit of lawlessness.

In the second form, you have to distinguish asituation where a person in authority or his agent wasattacked while performing official functions, from asituation when he is not performing such functions. Ifattack was done during the exercise of officialfunctions, the crime is always direct assault. It isenough that the offender knew that the person in

authority was performing an official function whatevermay be the reason for the attack, although what mayhave happened was a purely private affair.

On the other hand, if the person in authority or theagent was killed when no longer performing officialfunctions, the crime may simply be the materialconsequence of he unlawful act: murder or homicide.For the crime to be direct assault, the attack must beby reason of his official function in the past. Motivebecomes important in this respect. Example, if a judge was killed while resisting the taking of hiswatch, there is no direct assault.

In the second form of direct assault, it is also

important that the offended party knew that theperson he is attacking is a person in authority or anagent of a person in authority, performing his officialfunctions. No knowledge, no lawlessness orcontempt.For example, if two persons were quarreling and apoliceman in civilian clothes comes and stops them,but one of the protagonists stabs the policeman, therewould be no direct assault unless the offender knewthat he is a policeman.

In this respect it is enough that the offender shouldknow that the offended party was exercising someform of authority. It is not necessary that theoffender knows what is meant by person in authorityor an agent of one because ignorantia legis nonexcusat.

Article 149. Indirect Assault

Elements

1. A person in authority or his agent is thevictim of any of the forms of direct assaultdefined in Article 148;

2. A person comes to the aid of such authorityor his agent;

3. Offender makes use of force or intimidationupon such person coming to the aid of theauthority or his agent.

The victim in indirect assault should be a privateperson who comes in aid of an agent of a person inauthority. The assault is upon a person who comes inaid of the person in authority. The victim cannot bethe person in authority or his agent.

There is no indirect assault when there is no directassault.

Take note that under Article 152, as amended, whenany person comes in aid of a person in authority, saidperson at that moment is no longer a civilian – he isconstituted as an agent of the person in authority. Ifsuch person were the one attacked, the crime wouldbe direct assault.

Due to the amendment of Article 152, without thecorresponding amendment in Article 150, the crime ofindirect assault can only be committed when assaultis upon a civilian giving aid to an agent of the personin authority. He does not become another agent ofthe person in authority.

ARTICLE 150. DISOBEDIENCE TO SUMMONS ISSUED BYCONGRESS, ITS COMMITTEES OR SUBCOMMITTEES, BYTHE CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES, SUBCOMMITTEES OR DIVISIONS

Acts punished

1. By refusing, without legal excuse, to obeysummons of Congress, its special or standingcommittees and subcommittees, theConstitutional Commissions and itscommittees, subcommittees or divisions, orby any commission or committee chairman ormember authorized to summon witnesses;

2. By refusing to be sworn or placed underaffirmation while being before such legislativeor constitutional body or official;

3. By refusing to answer any legal inquiry or toproduce any books, papers, documents, orrecords in his possession, when required bythem to do so in the exercise of theirfunctions;


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4. By restraining another from attending as awitness in such legislative or constitutionalbody;

5. By inducing disobedience to a summons orrefusal to be sworn by any such body orofficial.

ARTICLE 151. R ESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCHPERSON

Elements of resistance and serious disobedienceunder the first paragraph

1. A person in authority or his agent is engagedin the performance of official duty or gives alawful order to the offender;

2. Offender resists or seriously disobeys suchperson in authority or his agent;

3. The act of the offender is not included in theprovision of Articles 148, 149 and 150.

Elements of simple disobedience under the secondparagraph

1. An agent of a person in authority is engagedin the performance of official duty or gives alawful order to the offender;

2. Offender disobeys such agent of a person inauthority;

3. Such disobedience is not of a serious nature.

Distinction between resistance or serious disobedienceand direct assault

1. In resistance, the person in authority or hisagent must be in actual performance of hisduties.

In direct assault, the person in authority orhis agent must be engaged in theperformance of official duties or that he isassaulted by reason thereof.

2. Resistance or serious disobedience iscommitted only by resisting or seriouslydisobeying a person in authority or his agent.

Direct assault (the second form) is committedin four ways, that is, (1) by attacking, (2) byemploying force, (3) by seriouslyintimidating, and (4) by seriously resisting apersons in authority or his agent.

3. In both resistance against an agent of aperson in authority and direct assault byresisting an agent of a person in authority,there is force employed, but the use of forcein resistance is not so serious, as there is nomanifest intention to defy the law and theofficers enforcing it.

The attack or employment of force whichgives rise to the crime of direct assault mustbe serious and deliberate; otherwise, even acase of simple resistance to an arrest, whichalways requires the use of force of some kind,would constitute direct assault and the lesseroffense of resistance or disobedience inArticle 151 would entirely disappear.

But when the one resisted is a person Iauthority, the use of any kind or degree offorce will give rise to direct assault.

If no force is employed by the offender in

resisting or disobeying a person in authority,the crime committed is resistance or ser

ortega notes book 2 crim

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