Elements and Notes in Criminal Law Book II PDF

Elements and Notes in Criminal Law Book II TITLE ONE CRIMES AGAINST NATIONAL SECURITY Crimes against national security 1. Treason (Art. 114); 2. Conspiracy and proposal to commit treason (Art. 115); 3. Misprision of treason (Art....

Elements and Notes in Criminal Law Book II TITLE ONE CRIMES AGAINST NATIONAL SECURITY 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 if the criminal act or acts were committed outside the Philippine territorial jurisdiction. However, prosecution can proceed only if the offender is within Philippine territory or brought to the Philippines pursuant to an extradition treaty. This is one of the instances where the Revised Penal Code may be given extra-territorial application under Article 2 (5) thereof. In the case of crimes against the law of nations, the offender can be prosecuted whenever he may be found because the crimes are regarded as committed against humanity in general. Article 114 TREASON ELEMENTS: a. That the offender owes allegiance to the Government of the Philippines b. That there is a war in which the Philippines is involved c. That the offender either – 1) Levies war against the government, 1. breech of allegiance 2. actual assembling of men 3. for the purpose of executing a treasonable design 2) Adheres to the enemies, giving them aid and comfort 1. breech of allegiance 2. adherence 3. giving aid or comfort to the enemy 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 some foreign sovereign * Success is not important. What matters is the actual assembly of men and the execution of treasonable design by force.  Ways of proving treason: a. 2 witnesses testifying to same overt act > The testimonies must refer to the same act, place and moment of time. Treason cannot be proved by circumstantial evidence or by extrajudicial confession. Example: X saw arms landed in La Union and loaded into a motor vehicle. At this stage, not sufficient to convict yet. Y later saw the arms unloaded in a warehouse. Will X + Y be sufficient witnesses to convict? Answer: NO. Because the law requires that 2 witnesses see the SAME OVERT ACT. 1  Elements and Notes in Criminal Law Book II b. Confession of the accused in open court. Arraignment, pre-trial, trial – OK. > If he has pleaded NOT guilty already during arraignment, he can still confess in open court by stating the particular acts constituting treason. > During trial, simply saying “I’m guilty” is not enough. > Withdrawing plea of “not guilty” during arraignment not necessary > If during arraignment he pleads guilty, court will ask if the accused understands is plea. Submission of affidavit during trial, even if assisted by counsel is not enough.  TREASON: breach of allegiance to the government, committed by a person who owes allegiance to it. Allegiance: obligation of fidelity and obedience. It is permanent or temporary depending on whether the person is a citizen or an alien.  Evident premeditation, superior strength and treachery are circumstances inherent in treason, and are, therefore, not aggravating.  Treason cannot be committed in times of peace, only in times of war – actual hostilities. But no need for declaration of war  Not Treasonous: a. Acceptance of public office and discharge of official duties under the enemy does not constitute per se the felony of treason (exception: when it is policy determining) b. Serving in a puppet government (ministerial functions) and in order to serve the populace is NOT treasonous. But it is treason if: a) there is discretion involved; b) inflicts harm on Filipinos; c) it is disadvantageous to them. c. Purpose of offender: to deliver the Philippines to enemy country; if merely to change officials – not treason  On Citizenship > Filipino citizens can commit treason outside the Philippines. But that of an alien must be committed in the Philippines. > Only Filipino citizens or permanent resident aliens can be held liable > ALIEN: with permanent resident status from the BID – it is neither the length of stay in the Philippines nor the marriage with a Filipino that matters.  Actual hostilities may determine the date of the commencement of war  No such thing as attempted treason; mere attempt consummates the crime  GIVING AID OR COMFORT – material element, enhances forces of the enemy country. > Acts which strengthen or tend to strengthen the enemy in the conduct of war against the traitor’s country or that which weaken and tend to weaken the power of the same. Example: Financing arms procurement of enemy country. But giving of shelter is not necessarily “giving aid and comfort.”  Adherence and giving aid or comfort must concur together.  ADHERENCE: when a citizen intellectually or emotionally favors the enemy and harbors convictions disloyal to his country’s policy. But membership in the police force during the occupation is NOT treason. Example: Giving information to, or commandeering foodstuffs for the enemy. 2  Elements and Notes in Criminal Law Book II  Adherence may be proved by: (1) one witness; (2) from the nature of the act itself; (3) from the circumstances surrounding the act. * When this adherence or sympathies are converted into aid and comfort, only then they take material form. This material form is now what is made punishable. It is usually manifested by the offender in giving information, commandeering foodstuffs, serving as spy and supplying the enemy with war materials.  Treason is a CONTINUING CRIME. Even after the war, offender can be prosecuted. * Treason is a continuing offense. It can be committed by a single act or by a series of acts. It can be committed in one 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 pursuance or furtherance of the act of treason. * No matter how many acts of treason are committed by the offender, he will be liable for only one crime of treason.  If you convict a person for treason by reason of irresistible force or uncontrollable fear, you may use Art.12. No treason through negligence * In the imposition of the penalty for the crime of treason, the court may disregard the presence of mitigating and aggravating circumstances. It may consider only the number, nature and gravity of the acts established during the trial. The imposition of the penalty rests largely on the exercise of judicial discretion. Defenses that may be availed of by the accused. 1. Duress or uncontrollable fear of immediate death; and 2. Lawful obedience to a de facto government.  When killings and other common crimes are charged as overt act of treason, they cannot be regarded as (1) separate crimes or (2) as complex with treason. * In the act of levying war or giving aid or comfort to the enemy, murder, robbery, arson or falsification may be committed by the offender. BUT the offender does not commit the crime of treason complexed with common crimes because such crimes are inherent to treason, being an indispensable element of the same. Treason distinguished from Rebellion. The manner in which both crimes are committed in the same. In treason however, the purpose of the offender is to deliver the government to the enemy country or to a foreign power. In rebellion, the purpose of the rebels is to substitute the government with their own form of government. No foreign power is involved. Treason distinguished from Sedition. In treason, the offender repudiates his allegiance to the government by means of force or intimidation. He does not recognize the supreme authority of the State. He violates his allegiance by fighting the forces of the duly constituted authorities. In sedition, the offender disagrees with certain policies of the State and seeks to disturb public peace by raising a commotion or public uprising. Article 115 CONSPIRACY TO COMMIT TREASON  ELEMENTS: a. In time of war 3  Elements and Notes in Criminal Law Book II b. 2 or more persons come to an agreement to 1. levy war against the government, or 2. adhere to the enemies and to give them aid or comfort, c. They decide to commit it  ELEMENTS OF PROPOSAL TO COMMIT TREASON a. In time of war b. A person who has decided to levy war against the government, or to adhere to the enemies and to give them aid or comfort, proposes its execution to some other person/s.  Mere agreement and decisions to commit treason is punishable  Mere proposal even without acceptance is punishable too. If the other accepts, it is already conspiracy. * While Treason as a crime should be established by the two-witness rule, the same is not observed when the crime committed conspiracy to commit treason or when it is only a proposal to commit treason. Article 116 MISPRISION OF TREASON  ELEMENTS: a. That the offender must be owing allegiance to the government, and not a foreigner b. That he has knowledge of any conspiracy (to commit treason) against the government c. That he conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province or the mayor or fiscal of the city in which he resides * While in treason, even aliens can commit said crime because of the amendment to the article, no such amendment was made in misprision of treason. Misprision of treason is a crime that may be committed only by citizens of the Philippines.  Offender is punished as an accessory to the crime of treason * Take note that the offender is a principal to the crime of misprision of treason, yet he is penalized only as an accessory. In the imposition of the penalty, the court is not bound by the provisions of Article 63 and 64, referring to indivisible penalties. In the presence of mitigating and aggravating circumstances, the offender is punished two degrees lower than the penalty for the crime of treason. * The criminal liability arises if the treasonous activity was still at the conspiratorial stage  This crime does not apply if the crime of treason is already committed  Crime of omission * This is a felony by omission although committed with dolo, not with culpa.  “To report within a reasonable time” – depends on time, place and circumstance – the RPC did not fix time.  RPC states 4 individuals, what if you report to some other high-ranking government official? Ex. PNP Director? Judge Pimentel says any gov’t official of the DILG is OK. * Whether the conspirators are parents or children, and the ones who learn the conspiracy is a parent or child, they are required to report the same. The reason is that although blood is thicker than water so to speak, when it comes to security of the state, blood relationship is always subservient to national security. 4  Elements and Notes in Criminal Law Book II Article 20 does not apply here because the persons found liable for this crime are not considered accessories; they are treated as principals. Article 117 Espionage by entering, without authority therefor, warship, fort, or naval or military establishments or reservation to obtain any information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines.  ELEMENTS: a. 1. That the offender enters any of the places mentioned therein 2 3 2. That he has no authority therefore; b. That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines * Under the first mode of committing espionage, the offender must have the intention to obtain information relative to the defense of the PHIL. It is sufficient that he entered the prohibited premises. Here, the offender is any private individual, whether an alien or a citizen of the Philippines, or a public officer. Espionage by disclosing to the representative of a foreign nation the contents of the articles, data, or information referred to in paragraph 1 of Article 117, which he had in his possession by reason of the public office holds ELEMENTS: a. That the offender is a public officer b. That he has in his possession the articles, data or information referred to in par 1 of art 117, by reason of the public office he holds c. That he discloses their contents to a representative of a foreign nation  Purpose: to gather data * Under the second mode, the offender must be a public officer who has in possession the articles, data or information by reason of the office he holds. Taking advantage of his official position, he reveals or discloses the information which are confidential and are relevant to the defense of the Philippines.  ESPIONAGE: the offense of gathering, transmitting, or losing information respecting the national defense with the intent or reason to believe that the information is to be used to the injury of the Philippines or the advantage of any foreign nation. It is not conditioned on citizenship.  Not necessary that Philippines is at war with the country to which the information was revealed. What is important is that the information related is connected with the defense system of the Philippines.  Wiretapping is NOT espionage if the purpose is not something connected with the defense Commonwealth Act No. 616 – An Act to Punish Espionage and Other Offenses against National Security Acts punished 1. Unlawfully obtaining or permitting to be obtained information affecting national defense; 2. Unlawful disclosing of information affecting national 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; 6. Harboring or concealing violators of law. and 7. Photographing vital military information 5  Elements and Notes in Criminal Law Book II CRIMES AGAINST LAWS OF NATIONS * In crimes against the law of nations, the offenders can be prosecuted anywhere in the world because these crimes are considered as against humanity in general, like piracy and mutiny. Crimes against national security can be tried only in the Philippines, as there is a need to bring the offender here before he can be made to suffer the consequences of the law. The acts against national security may be committed abroad and still be punishable under our law, but it can not be tried under foreign law. Article 118 INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS  ELEMENTS: a. That the offender performs unlawful or unauthorized acts b. That such acts provoke or give occasion for a war involving or liable to involve the Philippines or expose Filipino citizens to reprisals on their persons or property  Crime is committed in time of peace, intent is immaterial  Inciting to war – offender is any person  Reprisals is not limited to military action, it could be economic reprisals, or denial of entry into their country. EXAMPLE. X burns Chinese flag. If China bans the entry of Filipinos into China, that is already reprisal. Article 119 VIOLATION OF NEUTRALITY ELEMENTS: a. That there is war in which the Philippines is not involved b. That there is a regulation issued by competent authority for the purpose of enforcing neutrality c. That the offender violates such regulation  Gov’t must have declared the neutrality of the Phil in a war between 2 other countries * The regulation must be issued by a competent authority like the President of the Philippines or the Chief of Staff of the Armed Forces of the Philippines, during a war between different countries in which the Philippines is not taking sides.  It is neutrality of the Phil that is violated  Congress has the right to declare neutrality * The violations can be done either by means of dolo or by means of culpa. So violation of neutrality can be committed through reckless imprudence. Article 120 CORRESPONDENCE WITH HOSTILE COUNTRY ELEMENTS: a. That it is in time of war in which the Philippines is involved 6  Elements and Notes in Criminal Law Book II b. That the offender makes correspondence with an enemy country or territory occupied by enemy troops c. That the correspondence is either – 1. prohibited by the government, or 2. carried on in ciphers or conventional signs, or 3. containing notice or information which might be useful to the enemy  Circumstances qualifying the offense: 1 a. notice or information might be useful to the enemy 2 3 b. offender intended to aid the enemy  Hostile country exist only during hostilities or after the declaration of war  Correspondence to enemy country – correspondence to officials of enemy country – even if related to you.  It is not correspondence with private individual in enemy country  If ciphers were used, no need for prohibition  If ciphers were not used, there is a need for prohibition  In any case, it must be correspondence with the enemy country  Doesn’t matter if correspondence contains innocent matters – if prohibited, punishable Article 121 FLIGHT TO ENEMY’S COUNTRY  ELEMENTS a. That there is a war in which the Philippines is involved b. That the offender (Filipino or resident alien) must be owing allegiance to the government c. That the offender attempts to flee or go to enemy country d. That going to enemy country is prohibited by competent authority  Mere attempt consummates the crime  There must be a prohibition. If none, even if went to enemy country – no violation  Alien resident may be guilty here. Article 122 PIRACY  2 Ways of Committing Piracy a. By attacking or seizing a vessel on the high seas or in the Philippine waters (PD 532) b. By seizing the whole or part of the cargo of said vehicles, its equipment or personal belongings of its complement or passengers  Elements: a. That a vessel is on the high seas/Philippine waters 7  Elements and Notes in Criminal Law Book II b. That the offenders are not members of its complement or passengers of the vessel c. That the offenders – 1. attack or seize that vessel or (hence, if committed by crew or passengers, the crime is not piracy but robbery in the high seas) 2. seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers  High seas: any waters on the sea coast which are without the boundaries of the low water mark although such waters may be in the jurisdictional limits of a foreign gov’t  PIRACY IN HIGH SEAS – jurisdiction is with any court where offenders are found or arrested  PIRACY IN INTERNAL WATERS – jurisdiction is only with Philippine courts  For purpose of Anti-Fencing Law, piracy is part of robbery and theft PIRACY MUTINY Robbery or forcible degradation on the Unlawful resistance to a superior officer, or high seas, without lawful authority and the raising of commotion and disturbances done with animo lucrandi and in the on board a ship against the authority of its spirit and intention of universal hostility. commander Intent to gain is an element. No criminal intent Attack from outside. Offenders are Attack from the inside. strangers to the vessel.  under the amended article, piracy can only be committed by a person who is not a passenger nor member of the complement of the vessel irrespective of venue. So if a passenger or complement of the vessel commits acts of robbery in the high seas, the crime is robbery, not piracy.  If in the Phil. waters still piracy * However, despite the amendment, P.D. No. 532 may still apply where the offender is not stranger to the vessel since it provides: “Any attack upon or seize of any vessel, or the taking away of the whole of part thereof or its cargo, equipment or the personal belongings of its complement or passengers, irrespective of the value hereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided.” After all, under the Revised Penal Code, for one to be called a pirate, the offender must be a stranger to the vessel.  While the Article 122 limits the offenders to non-passengers or non-members of the crew, P.D. 532 states that the attack upon or seizure of any vessel, or taking away the whole or part thereof or its cargo, equipment or personal belongings of its complement or passengers committed by any person including a passenger or member of the complement of said vessel shall be considered Piracy. * Note, however, that in Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who knowingly and in any manner aids or protects pirates, such as giving them information about the movement of the police or other peace officers of the government, or acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; or who directly or indirectly abets the commission of piracy. Also, it is expressly provided in the same section that the offender shall be considered as an accomplice of the principal offenders and punished in accordance with the Revised Penal Code. This provision of Presidential Decree No. 532 with respect to piracy in Philippine water has not been incorporated in the Revised Penal Code. Neither may it be considered repealed by Republic Act No. 7659 since there is nothing in the amendatory law is inconsistent with said section. Apparently, there is still the crime of abetting piracy in Philippine waters under Presidential Decree No. 532. * Considering that the essence of piracy is one of robbery, any taking in a vessel with force upon things or with violence or intimidation against person is employed will always be piracy. It cannot co-exist with the 8  Elements and Notes in Criminal Law Book II crime of robbery. Robbery, therefore, cannot be committed on board a vessel. But if the taking is without violence or intimidation on persons or force upon things, the crime of piracy cannot be committed, but only theft. ELEMENTS OF MUTINY 1) The vessel is on the high seas or Philippine waters; 2) Offenders are either members of its complement, or passengers of the vessel; 3) Offenders either – a. attack or seize the vessel; or b. seize the whole or part of the cargo, its equipment, or personal belongings of the crew or passengers. MUTINY is the unlawful resistance to a superior officer, or the raising of commotions and disturbances aboard a ship against the authority of its commander. Article 123 QUALIFIED PIRACY  QUALIFYING CIRCUMSTANCES: a. Whenever they have seized a vessel by boarding or firing upon the same b. Whenever the pirates have abandoned their victims without means of saving themselves c. Whenever the crime is accompanied by murder, homicide, physical injuries, or rape. (the above may result to qualified mutiny) * Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and cannot be punished as separate crimes, nor can they be complexed with piracy.  Parricide/infanticide should be included (Judge Pimentel)  Murder/rape/homicide/physical injuries must have been committed on the passengers or complement * In piracy, where rape, murder or homicide is committed, the mandatory penalty of death is imposable. This means that even if the accused enters a plea of guilty, the penalty of death will still be imposed because death is a single and indispensable penalty. (People vs. Rodriguez, 135 SCRA 485) * The penalty for qualified piracy is reclusion perpetua to death. If any of the circumstances enumerated under the law is proven or established, the mandatory penalty of death should be imposed. The presence of mitigating or aggravating circumstances will be ignored by the court. Although in Article 123 merely refers to qualified piracy, there is also the crime of qualified mutiny. Mutiny is qualified under the following circumstances: (1) When the offenders abandoned the victims without 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 piracy does not apply to mutiny. Republic Act No. 6235 (The Anti Hi-Jacking Law) Anti hi-jacking is another kind of piracy which is committed in an aircraft. In other countries, this crime is known as aircraft piracy. 9  Elements and Notes in Criminal Law Book II Four situations governed by anti hi-jacking law: (1) usurping or seizing control of an aircraft of Philippine 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 of foreign registry while within Philippine territory, compelling the pilots thereof to land in any part of Philippine territory; (3) carrying or loading on board an aircraft operating as a public utility passenger aircraft in the Philippines, any flammable, corrosive, explosive, or poisonous substance; and (4) loading, shipping, or transporting on board a cargo aircraft operating as a public utility in the Philippines, any flammable, corrosive, explosive, or poisonous substance if this was done not in accordance with the rules and regulations set and promulgated by the Air Transportation Office on this matter. Between numbers 1 and 2, the point of distinction is whether the aircraft is of Philippine registry or foreign registry. The common bar question on this law usually involves number 1. The important thing is that before the anti hi-jacking law can apply, the aircraft must be in flight. If not in flight, whatever crimes committed shall be governed by the Revised Penal Code. The law makes a distinction between aircraft of a foreign registry and of Philippine registry. If the aircraft subject of the hi-jack is of Philippine registry, 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 the Revised Penal Code. The correlative crime may be one of grave coercion or grave threat. If somebody is killed, the crime is homicide or murder, as the case may be. If there are some explosives carried there, the crime is destructive arson. Explosives are by nature pyro- techniques. Destruction of property with the use of pyro-technique is destructive arson. If there is illegally possessed or carried firearm, other special 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 the anti hi-jacking law can apply. This is because aircrafts of foreign registry are considered in transit while they are in foreign countries. Although they may have been in a foreign country, technically they are still in flight, because they have to move out of that foreign country. So even if any of the acts mentioned were committed while the exterior doors of the foreign aircraft were still open, the anti hi-jacking law will already govern. Note that under this law, an aircraft is considered in flight from the moment all exterior doors are closed following embarkation until such time when the same doors are again opened for disembarkation. This means that there are passengers that boarded. So if the doors are closed to bring the aircraft to the hangar, the aircraft is not considered as in flight. The aircraft shall be deemed to be already in flight even if its engine has not yet been started. Questions & Answers 1. The pilots of the Pan Am aircraft were accosted by some armed men and were told to proceed to the aircraft to fly it to a foreign destination. The armed men walked with the pilots and went on board the aircraft. But before they could do anything on the aircraft, alert marshals arrested them. What crime was committed? The criminal intent definitely is to take control of the aircraft, which is hi-jacking. It is a question now of whether the anti-hi-jacking law shall govern. The anti hi-jacking law is applicable in this case. Even if the aircraft is not yet about to fly, the requirement that it be in flight does not hold true when in comes to aircraft of foreign registry. Even if the problem does not say that all exterior doors are closed, the crime is hi-jacking. Since the aircraft is of foreign registry, under the law, simply usurping or seizing control is enough as long as the aircraft is within Philippine territory, without the requirement that it be in flight. Note, however, that there is no hi-jacking in the attempted stage. This is a special law where the attempted stage is not punishable. 2. A Philippine Air Lines aircraft is bound for Davao. While the pilot and co-pilot are taking their snacks at the airport lounge, some of the armed men were also there. The pilots were followed by these men on their way to the aircraft. As soon as the pilots entered the cockpit, they pulled out their firearms and gave instructions where to fly the aircraft. Does the anti hi-jacking law apply? No. The passengers have yet to board the aircraft. If at that time, the offenders are apprehended, the law will not apply because the aircraft is not yet in flight. Note that the aircraft is of Philippine registry. 10  Elements and Notes in Criminal Law Book II 3. While the stewardess of a Philippine Air Lines plane bound for Cebu was waiting for the passenger manifest, two of its passengers seated near the pilot surreptitiously entered the pilot cockpit. At gunpoint, they directed the pilot to fly the aircraft to the Middle East. However, before the pilot could fly the aircraft towards the Middle East, the offenders were subdued and the aircraft landed. What crime was committed? The aircraft was not yet in flight. Considering that the stewardess was still waiting for the passenger manifest, the doors were still open. Hence, the anti hi-jacking law is not applicable. Instead, the Revised Penal Code shall govern. The crime committed was grave coercion or grave threat, depending upon whether or not any serious offense violence was inflicted upon the pilot. However, if the aircraft were of foreign registry, the act would already be subject to the anti hi- jacking law because there is no requirement for foreign aircraft to be in flight before such law would apply. The reason for the distinction is that as long as such 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, the distinction is whether the aircraft is a passenger aircraft or a cargo aircraft. In both cases, however, the law applies only to public utility aircraft in the Philippines. Private aircrafts are not subject to the anti hi-jacking law, in so far as transporting prohibited substances are concerned. If the aircraft is a passenger aircraft, the prohibition is absolute. Carrying of any prohibited, flammable, corrosive, or explosive substance is a crime under Republic Act No. 6235. But if the aircraft is only a cargo aircraft, the law is violated only when the transporting of the prohibited substance was not done in accordance with the rules and regulations prescribed by the Air Transportation Office in the matter of shipment of such things. The Board of Transportation provides the manner of packing of such kind of articles, the quantity in which they may be loaded at any time, etc. Otherwise, the anti hi-jacking law does not apply. However, under Section 7, any physical injury or damage to property which would result from the carrying or loading of the flammable, corrosive, explosive, or poisonous substance in an aircraft, the offender shall be prosecuted not only for violation of Republic Act No. 6235, but also for the crime of physical injuries or damage to property, as the case may be, under the Revised Penal Code. There will be two prosecutions here. Other than this situation, the crime of physical injuries will be absorbed. If the explosives were planted in the aircraft to blow up the aircraft, the circumstance will qualify the penalty and that 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 qualifying circumstances and would bring about higher penalty. Such acts would not constitute another crime. So the killing or explosion will only qualify the penalty to a higher one. Questions & Answers 1. In the course of the hi-jack, a passenger or complement was shot and killed. What crime or crimes were committed? The crime remains to be a violation of the anti hi-jacking law, but the penalty thereof shall be higher because a passenger or complement of the aircraft had been killed. The crime of homicide or murder is not committed. 2. The hi-jackers threatened to detonate a bomb in the course of the hi-jack. What crime or crimes were committed? Again, the crime is violation of the anti hi-jacking law. The separate crime of grave threat is not committed. This is considered as a qualifying circumstance that shall serve to increase the penalty. 11  Elements and Notes in Criminal Law Book II TITLE TWO CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE Crimes against the fundamental laws of the State 1. Arbitrary detention (Art. 124); 2. Delay in the delivery of detained persons to the 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 and abuse in the service of those legally obtained (Art. 129); 7. Searching domicile without witnesses (Art. 130); 8. Prohibition, interruption, and dissolution of peaceful meetings (Art. 131); 9. Interruption of religious worship (Art. 132); and 10. Offending the religious feelings (Art. 133); * Under this title, the offenders are public officers, except as to the last crime – offending the religious feelings under Article 133, which refers to any person. The public officers who may be held liable are only those acting under supposed exercise of official functions, albeit illegally. But private persons may also be liable under this title as when a private person conspires with a public officer. What is required is that the principal offender must be a public officer. Thus, if a private person conspires with a public officer, or becomes an accessory or accomplice, the private person also becomes liable for the same crime. But a private person acting alone cannot commit the crimes under Article 124 to 132 of this title. CLASSES OF ARBITRARY DETENTION: a. By detaining a person without legal ground b. Delay in the delivery of detained persons to the proper judicial authorities c. Delaying release Article 124 ARBITRARY DETENTION  ELEMENTS: a. That the offender is a public officer or employee (whose official duties include the authority to make an arrest and detain persons; jurisdiction to maintain peace and order). b. That he detains a person (actual restraint). c. That the detention was without legal grounds (cannot be committed if with warrant).  DETENTION: when a person is placed in confinement or there is a restraint on his person. * Only those public officers whose official duties carry with it the authority to make an arrest and detain persons can be guilty of this crime. So, if the offender does not possess such authority, the crime committed by him is illegal detention.  Though the elements specify that the offender be a public officer or employee, private individuals who conspire with public officers can also be liable. * In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains another was held to be guilty of the crime of arbitrary detention. This is because he is a person in authority vested with the jurisdiction to maintain peace and order within his barangay. In the maintenance of such peace and order, he may cause the arrest and detention of troublemakers or those who disturb the peace and order within his barangay. But if the legal basis for the apprehension and detention does not exist, then the detention becomes arbitrary.  Legal grounds for the detention of any person: a. commission of a crime 12  Elements and Notes in Criminal Law Book II b. violent insanity or other ailment requiring compulsory confinement of the patient in a hospital c. escaped prisoner * When the peace officers acted in good faith even if the three (3) grounds mentioned above are not obtaining, there is no Arbitrary Detention.  Without legal grounds: a. he has not committed any crime or no reasonable ground of suspicion that he has committed a crime b. not suffering from violent insanity or any other ailment requiring compulsory confinement in a hospital  Grounds for warrantless arrest: a. Crime is about to be, is being, has been committed in his presence b. Officer must have probable cause to believe based on personal knowledge of facts and circumstances that the person probably committed the crime  For escaped prisoner – no need for warrant  Example: Y was killed by unknown assailant. Officers got a tip and arrested X. X voluntarily admitted to the officers that he did it although he was not asked. X was detained immediately. According to the SC, there was NO arbitrary detention. Why? Because once X made a confession, the officers had a right to arrest him. * Arbitrary detention can be committed thru simple imprudence or negligence. (People vs. Misa) Periods of Detention penalized: 1. Detention not exceeding three days; 2. Detention for more than three days but not more than 15 days; 3. Detention for more than 15 days but not more than 6 months; and 4. Detention for more than 6 months.  Continuing crime is different from a continuous crime  Ramos v. Enrile: Rebels later on retire. According to the SC, once you have committed rebellion and have not been punished or amnestied, then the rebels continue to engage in rebellion, unless the rebels renounce his affiliation. Arrest can be made without a warrant because this is a continuing crime. Distinction between arbitrary detention and illegal detention 1. In arbitrary detention -- The principal offender must be a public officer. Civilians cannot commit the crime of arbitrary detention except when they conspire with a public officer committing this crime, or become an accomplice or accessory to the crime committed by the public officer; and The offender who is a public officer has a duty which carries with it the authority to detain a person. 2. In illegal detention -- The principal offender is a private person. But a public officer can commit the crime of illegal detention when he is acting in a private capacity or beyond the scope of his official duty, or when he becomes an accomplice or accessory to the crime committed by a private person. 13  Elements and Notes in Criminal Law Book II The offender, even if he is a public officer, does not include as his function the power to arrest and detain a person, unless he conspires with a public officer committing arbitrary detention. * Whether the crime is arbitrary detention or illegal detention, it is necessary that there must be an actual restraint of liberty of the offended party. If there is no actual restraint, as the offended party may still go to the place where he wants to go, even though there have been warnings, the crime of arbitrary detention or illegal detention is not committed. There is either grave or light threat. However, if the victim is under guard in his movement such that there is still restraint of liberty, then the crime of either arbitrary or illegal detention is still committed. Distinction between arbitrary detention and unlawful arrest (1) As to offender In arbitrary detention, the offender is a public officer possessed with authority to make arrests. In unlawful arrest, the offender may be any person. (2) As to criminal intent In arbitrary detention, the main reason for detaining the offended party is to deny him of his liberty. In unlawful arrest, the purpose is 1) to accuse the offended party of a crime he did not commit; 2) to deliver the person to the proper authority; and 3) to file the necessary charges in a way trying to incriminate him. * When a person is unlawfully arrested, his subsequent detention is without legal grounds. Article 125 DELAY IN THE DELIVERY OF DETAINED PERSONS  ELEMENTS: a. That the offender is a public officer or employee b. That he has detained a person for some legal grounds c. That he fails to deliver such person to the proper judicial authority within: 1. 12 hours, if detained for crimes/offenses punishable by light penalties, or their equivalent 2. 18 hours, for crimes/offenses punishable by correctional penalties, or their equivalent or 3. 36 hours, for crimes/offenses punishable by capital punishment or afflictive penalties, or their equivalent * Article 125 covers situations wherein the person detained has been arrested without a warrant but his arrest is nonetheless lawful. It is a felony committed by omission because of the failure of the offender to deliver the detained person to the proper judicial authority within 12 hours, 18 hours and 36 hours as the case may be. * At the beginning, the detention is legal since it is in the pursuance of a lawful arrest. However, the detention becomes arbitrary when the period thereof exceeds 12, 18 or 36 hours, as the case may be, depending on whether the crime is punished by light, correctional or afflictive penalty or their equivalent.  Really means delay in filing necessary information or charging of person detained in court.  May be waived if a preliminary investigation is asked for. * Under the Revised Rules of Court, when the person arrested is arrested for a crime which gives him the right to preliminary investigation and he wants to avail his right to a preliminary investigation, he would have to waive in writing his rights under Article 125 so that the arresting officer will not immediately file the case with the court that will exercise jurisdiction over the case. If he does not want to waive this in writing, the arresting officer will have to comply with Article 125 and file the case immediately in court without preliminary investigation. In such case, the arrested person, within five days after learning that the case has been filed in court without preliminary investigation, may ask for preliminary investigation. In this case, the public officer who made the arrest will no longer be liable for violation of Article 125. 14  Elements and Notes in Criminal Law Book II  Does not contemplate actual physical delivery but at least there must be a complaint filed. Duty complied with upon the filing of the complaint with the judicial authority (courts, prosecutors – though technically not a judicial authority, for purposes of this article, he’s considered as one.) * Delivery of detained person consists in making charge of filing a compliant against the prisoner with the proper judicial authority. It does not involve the physical delivery of the prisoner before the judge (Sayo vs. Chief of Police).  The filing of the information in court does not cure illegality of detention. Neither does it affect the legality of the confinement under process issued by the court.  To escape from this, officers usually ask accused to execute a waiver which should be under oath and with assistance of counsel. Such waiver is not violative of the accused constitutional right.  What is length of waiver? Light offense – 5 days. Serious and less serious offenses – 7 to 10 days. (Judge Pimentel)  Article does not apply when arrest is via a warrant of arrest Q. Within what period should a police officer who has arrested a person under a warrant of arrest turn over the arrested person to the judicial authority? A. There is no time limit specified except that the return must be made within a reasonable time. The period fixed by law under Article 125 does not apply because the arrest was made by virtue of a warrant of arrest.  If offender is a private person, crime is illegal detention  Before Article 125 may be applied, it is necessary that initially, the detention of the arrested person must be lawful because the arrest is based on legal grounds. If the arrest is made without a warrant, this constitutes an unlawful arrest. Article 269(unlawful arrest), not Article 125, will apply. If the arrest is not based on legal grounds, the arrest is pure and simple arbitrary detention. Article 125 contemplates a situation where the arrest was made without warrant but based on legal grounds. This is known as citizen’s arrest.  A police officer has no authority to arrest and detain a person on the basis merely of the complaint of the offended party, even if after investigation he becomes convinced that the accused is guilty of the offense charged. What the complainant may do is to file a complaint with the court and ask for the issuance of a warrant of arrest. Arbitrary Detention (124) Delay in Delivery of Detained (125) Detention is illegal from the beginning. Detention is legal in the beginning, but illegality starts from the expiration of the specified periods without the persons detained having been delivered to the proper judicial authority. Article 126 DELAYING RELEASE ELEMENTS: a. That the offender is a public officer or employee b. That there is a judicial or executive order for the release of a prisoner or detention prisoner, or that there is a proceeding upon a petition for the liberation of such person c. That the offender without good reason delays: 1. the service of the notice of such order to the prisoner, or 2. the performance of such judicial or executive order for the release of the prisoner, or 3. the proceedings upon a petition for the release of such person 15  Elements and Notes in Criminal Law Book II  Three acts are punishable: a. delaying the performance of a judicial or executive order for the release of a prisoner b. delaying the service of notice of such order to said prisoner c. delaying the proceedings upon any petition for the liberation of such person  Wardens and jailers are the persons most likely to violate this provision  Provision does not include legislation Article 127 EXPULSION ELEMENTS: a. That the offender is a public officer or employee b. That he expels any person from the Philippines, or compels a person to change his residence c. That the offender is not authorized to do so by law  2 acts punishable: a. by expelling a person from the Philippines b. by compelling a person to change his residence * The essence of this crime is coercion but the specific crime is “expulsion” when committed by a public officer. If committed by a private person, the crime is grave coercion. * In the Philippines, only the President of the Republic has the power to deport aliens whose continued stay in the country constitutes a menace to the peace and safety of the community. * In the case of Filipino citizens, only the court, by final judgment, can order a person to change his residence. In Villavicencio v. Lukban, 39 Phil 778, the mayor of the City of Manila wanted to make the city free from prostitution. He ordered certain prostitutes to be transferred to Davao, without observing due processes since they have not been charged with any crime at all. It was held that the crime committed was expulsion.  Does not include undesirable aliens; destierro; or when sent to prison Questions & Answers 1. Certain aliens were arrested and they were just put on the first aircraft which brought them to the country so that they may be out without due process of law. Was there a crime committed? Yes. Expulsion. 2. If a Filipino citizen is sent out of the country, what crime is committed? Grave coercion, not expulsion, because a Filipino cannot be deported. This crime refers only to aliens.  If X (Filipino) after he voluntarily left, is refused re-entry – is considered forcing him to change his address here  Threat to national security is not a ground to expel or change his address. 16  Elements and Notes in Criminal Law Book II Article 128 VIOLATION OF DOMICILE ELEMENTS: a. That the offender is a public officer or employee b. That he is not authorized by judicial order to enter the dwelling and/or to make a search therein for papers or other effects c. That he commits any of the following acts: 1. entering any dwelling against the will of the owner thereof 2. searching papers or other effects found therein without the previous consent of such owner 3. refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same  Aggravating Circumstance (medium and maximum of penalty imposed): a. Offense committed at nighttime b. Papers or effects not constituting evidence of a crime be not returned immediately * In order to commit this crime, the entry must be against the will of the owner. If the entry is only without the consent of the owner, the crime of violation of domicile is not committed. The prohibition may be expressed or implied. If the signs “Do not enter” and “Strangers keep out” are posted in front of the house or dwelling, then the prohibition is express. If the door is locked, or even if it is open but these are barriers to indicate the manifest intention of the owner to bar strangers from entering, there is implied prohibition. * The primary object of the law is to preserve the privacy of abode of the offended party. Hence, if the privacy is already lost, as when the offender has been allowed by the owner to enter the dwelling together with other persons, any subsequent change of attitude will not restore the privacy which was already lost. When privacy is waived, trespass to dwelling or violation of domicile cannot be committed.  If the offender who enters the dwelling against the will of the owner thereof is a private individual, the crime committed is trespass to dwelling (Art 280)  When a public officer searched a person “outside his dwelling” without a search warrant and such person is not legally arrested for an offense, the crime committed by the public officer is grave coercion, if violence or intimidation is used (Art 286), or unjust vexation, if there is no violence or intimidation (Art 287)  A public officer without a search warrant cannot lawfully enter the dwelling against the will of the owner, even if he knew that someone in that dwelling is having unlawful possession of opium  Under Rule 113(sec. 11) of the Revised Rules of Court, when a person to be arrested enters a premise and closes it thereafter, the public officer, after giving notice of an arrest, can break into the premise. He shall not be liable for violation of domicile.  3 acts punishable: a. person enters dwelling w/o consent or against the will 17  Elements and Notes in Criminal Law Book II In the plain view doctrine, public officer should be legally entitled to be in the place where the effects were found. If he entered the place illegally and he saw the effects, doctrine inapplicable; thus, he is liable for violation of domicile. b. person enters and searches for papers and effects Public officer who enters with consent searches for paper and effects without the consent of the owner. Even if he is welcome in the dwelling, it does not mean he has permission to search. c. person entered secretly and refuses to leave after being asked to The act punished is not the entry but the refusal to leave. If the offender upon being directed to leave, followed and left, there is no crime of violation of domicile. Entry must be done surreptitiously; without this, crime may be unjust vexation. But if entering was done against the will of the occupant of the house, meaning there was express or implied prohibition from entering the same, even if the occupant does not direct him to leave, the crime of violation of domicile is already committed because it would fall in number 1.  “BEING AUTHORIZED BY LAW” – means with search warrant, to save himself or do some things good for humanity There are only three recognized instances when search without a warrant is considered valid, and, therefore, the seizure of any evidence done is also valid. Outside of these, search would be invalid and the objects seized would not be admissible in evidence. (1) Search made incidental to a valid arrest; (2) Where the search was made on a moving vehicle or vessel such that the exigency of he situation prevents the searching officer from securing a search warrant; (3) When the article seized is within plain view of the officer making the seizure without making a search therefore.  Papers and effects need not be part of a crime.