PROS-SAGSSAGO-NOTES-IN-CRIMINAL-LAW-2017-EDITION PDF

2017 CRIMINAL LAW L E C T U R E N O T E S C R I M I N A L L A W REVIEW ELMER MANUEL SAGSAGO DEPUTY CITY PROSECUTOR OFFICE OF THE CITY PROSECUTOR BAGUIO CITY P...

2017 CRIMINAL LAW L E C T U R E N O T E S C R I M I N A L L A W REVIEW ELMER MANUEL SAGSAGO DEPUTY CITY PROSECUTOR OFFICE OF THE CITY PROSECUTOR BAGUIO CITY PROFESSOR SAINT LOUIS UNIVERSITY UNIVERSITY OF BAGUIO PROS. ELMER M. SAGSAGO Page 1 2017 CRIMINAL LAW INTRODUCTION There are two basic principles which underlie the basis for prosecuting a person because of his conduct. These are: (i) The Principle of Legality and (ii) The Principle of Publicity. The Principle of Legality. I. The principle which declares that for any human conduct to be considered as a criminal act, there must be a specific penal statute or law declaring such conduct as a crime and providing for its penalty. II. Any human conduct, no matter how evil or reprehensible it may be, can not subject the actor to punishment if there is no law punishing the act. III. This is expressed in the maxim “Nullum crimen noella poena sine lige”. IV. This principle is the opposite of ―Common Law Crimes‖. A. Common Law Crimes are often called ―Court Declared/Created Crimes‖ B. Common law crimes are those acts or omissions declared by courts to be crimes not because they violate a specific penal law but because they violate good customs, moral principles and precepts, or because the court finds the conduct to be improper or reprehensible and ought not to have been engaged in. V. Under this principle, for an omission to be punishable, there must be a written law directing the doing of an act so that he who claims to have been injured by an omission cannot rely solely on good sense or an appeal to humanity as basis for criminal liability. A. Thus he who fails to render assistance to one he finds in danger of dying in an uninhabited place is liable since there is a specific provision of the Revised Penal Code punishing such omission. But one is not criminally liable for the failure to give food to a neighbor who then dies due to starvation. B. If a person sees a boy being chased by a mad dog and did nothing although he was in a position to prevent the boy from being bitten, is he criminally liable for his inaction? C. If a person utters obscenities and profanities without taking precautions to prevent minor from hearing him, is he liable? VI. Rule in the Philippines: A. The Philippines adhere to the Principle of Legality. 1). All crimes in the Philippines are of Statutory Origin and there are no common law crimes in the Philippines. 2). This is evidenced by the Provisions of: (a). paragraph 2 of Article 5 which declares that it is the duty of the court to dismiss a criminal prosecution or to acquit the accused if it finds that the act/omission is not punished by any law, and to recommend instead that the same be the subject of a penal legislation and (b) article 21 which provides that no felony shall be punished by a penalty not prescribed by law prior to its commission. Principle of Publicity: Ignorance of the law. PROS. ELMER M. SAGSAGO Page 2 2017 CRIMINAL LAW I. The binding effect of a written criminal law depends upon its existence and contents being made known to the people upon whom the law is to be applied. This is the Principle/Requirement of Publicity or public dissemination or to make known the existence and contents of a penal law to the public. It is based on fair play and due process. No person is expected to obey a law and be punished for disobeying the law unless the existence of the law and its provisions have been made known to him. II. In the Philippines the requirement of publicity of the penal law is satisfied by a publication of the law either in the Offficial Gazette or in a news paper of general circulation. This is the only authorized mode of publicity. Public dissemination through other modes such as through the radio, television, public discussions or distribution of pamphlets is not the publicity required by law. III. Once the penal law has been publicized in the manner prescribed, all are presumed to have been properly informed of its existence and provisions. The publicity gives rise to constructive notice to all such that lack of actual knowledge of its existence and its provisions is no defense. This is the rationale for the principle: IGNORANTIA LEGIS NEMENEM EXCUSAT. CRIMINAL LAW IN GENERAL I. Concept: that branch of municipal substantive law which defines crimes, treats of their nature, and provides for their punishments. The components or functions of a penal law therefore are: a). to define a crime: this includes identifying a particular conduct or omission and declaring it as a crime and may include giving the crime its particular name b). treats of it nature: to delineate the conditions or circumstances under which the specific conduct will become a crime: how the crime is incurred or how it arises, and providing for its elements as well as identifying persons who are liable c). provides for the punishment: the law must specify what penalty will be suffered for anyone found violating the law because a law which prohibits an act or directs that an act be done which however does not provide for a penalty, is more of an advisory law. Failure to comply with the latter law is not a crime. II. Sources of Penal Laws in the Philippines A. The Revised Penal Code ( Act N0. 3815). This was made effective on January 1, 1932. It is called ―Revised‖ because the Code Committee created to draft a penal code came out with a proposal which merely revised the then existing Penal Code and laws related to it. The committee did not codify all penal laws nor produced a modern code or one conforming to advanced theories. 1. The RPC is based principally on the Spanish Penal Code of 1887, however, there are crimes provided there under which are of American concept such as the crimes of perjury and libel. 2. The original text was written in Spanish and then translated into English. 3. The RPC is criticized as being inadequate and outmoded and unable to cover crimes arising from, or related to, modern technology, such as computer –related offenses or cyber crimes e.g. hacking, sending of virus through the internet or internet liable, human trafficking using the internet. PROS. ELMER M. SAGSAGO Page 3 2017 CRIMINAL LAW 4. It consists of two major parts: Book I which deals with criminal liability in general and the rules on civil liability, Book II which enumerates and defines the specific crimes and their specific penalties. 5. Many provisions have been repealed and/or amended e.g. the provisions of dangerous drugs, gambling, provisions involving minor offenders, the new concept of rape, the added crime known as coup d‘ etat. B. Special Laws: Any penal law other than the Revised Penal Code. 1. Those of national application. a). Those passed by Congress which are known either as i) Acts- those passed during the American Military Regime ii). Commonwealth Acts- those enacted during the commonwealth period iii). Republic Acts- those passed after 1946 when the Philippines became a republic with its own government. iv. Batas Pambansa- those passed by the Batasang Pambansa during the period of Martial law. b). Those decreed by President Marcos during the Martial Law Period known as Presidential Decrees. c). Those passed by administrative bodies which are referred to as the administrative penal rules and regulations or circulars. 2. Those which are of local application i.e. city/municipal penal ordinances. III. Power to enact penal laws. A. Nature: the power is essentially legislative and is plenary or all encompassing. Congress may determine what acts or omissions are deemed reprehensible and then provide a penalty therefore. The power includes the prerogative to set forth a presumption of the commission of a violation of a penal law and then place the burden on the accused to overcome this presumption. This is exemplified by the presumption of authorship of theft or falsification based on the possession of stolen goods or of a falsified document. B. Limitations to the power. 1. There must be observance of due process 2. The law must be equally applied to all 3. The law should not constitute an ex post facto law. a). one which punishes an act when at the time of its commission, the act was innocent (retroactive penal laws) b). or aggravates the crime and makes it greater than what it was at the time of its commission c). or it inflicts a greater/graver punishment d). or which alters the rules of evidence and makes it easier to convict e). or which assumes to regulate certain civil rights and remedies but in effect it imposes a penalty or it deprives a person of a right he was entitled to f). or which deprives the accused of some lawful protection to which he was entitled to i.e. PROS. ELMER M. SAGSAGO Page 4 2017 CRIMINAL LAW amnesty 4. It should not be a Bill of Attainder or one which inflicts punishment without judicial trial, or which partakes of a legislative determination of guilt. 5. It should not impose an excessive fine or cruel or unusual punishment. IV. Interpretation of Penal Laws A. Application of the Principle of Pro Reo. ( IN DUBIO PRO REO-when in doubt rule in favor of the accused). Penal laws are to be construed liberally in favor of the accused and strictly against the state. All doubts are to be resolved in favor of the accused particularly in the following: (a) where there is a question on whether the act or omission is punished or is within the coverage of the law (b) as to the criminal participation of the accused (c) as to the gravity of the offense (d) as to the penalty to be imposed. 1. This is in conjunction with the Rule of Lenity which directs that in case of two possible interpretations of a penal statute, the court is to adopt an interpretation which is more lenient to the accused. B. Application of the Principle of Prospective Interpretation in that the law is to be interpreted as applying only to those acts or omissions committed or incurred after its effectivity. Exceptions: (i) when the law is more favorable to the accused (favorabilia sunt ampliada adios aristregenda)who is not a habitual offender, or (ii) the law expressly declares its non applicability to pending cases. However, a favorable penal law shall be given retroactive effect even if the accused is a habitual delinquent: (i) if it is a new law which repeals an existing law and decriminalizes an act and (ii) the accused is a CICL ( Dorado vs. People, Oct. 2, 2016 and Atizado vs. PP, Oct. 13, 2016) C. As to the Revised Penal Code, in case of conflict between the Spanish Text and its English translation, the Spanish text prevails, except to provisions which are new or are amendments introduced after 1930. V. Repeal of Penal Laws. Classification: A. As to the manner of repeal: 1. Express Repeal which takes place in two ways. (a). The first is when a new law is enacted which contains a repealing clause making reference to the law or laws the whole or part of which are repealed. Thus it maybe general in the sense that an existing law is repealed in its entirety or it may be specific because only certain provisions of the old law are repealed. b). The second is where the laws are revised through codification and consolidation, but there are provisions which are omitted or not included and are deemed thereby expressly repealed. 2. Implied. (Repeal by Incompatibility).There is no provision in the new law making reference to an existing law, or parts thereof, as being repealed, but the provisions of the old law and the new law are incompatible. This mode is not favored. When the new law is itself repealed the old law is deemed revived. B. As to Scope: PROS. ELMER M. SAGSAGO Page 5 2017 CRIMINAL LAW 1. Absolute or total repeal. The act or omission is decriminalized. The effects are as follows: (a) all cases pending trial are to be dismissed and all convictions under appeal will be reversed and the accused acquitted (b) all those convicted and serving sentence under the old law may be released upon a Petition for Habeas Corpus. (c) but those who served their sentence under the old law cannot ask for reparation from the state. Example: The so called Premature marriages by a woman penalized under Article 351 of the RPC is no longer a crime as R.A. 10655 has expressly repealed said article. Likewise vagrancy has been decriminalized under RA 10158. Prostitution likewise has been decriminalized as with squatting as these crimes were expressly repealed. 2. Partial Repeal. The act or omission remains a crime but there are changes or modifications to the existing crime: (a) the penalty is either increased or decreased (b) conditions for criminal liability are modified. The effect on pending cases will depend on the principles governing the retroactive application of penal laws unless there is a saving clause in the new law. For example: While Article 336 defining and penalizing Rape has been repealed, the crime of rape is still a crime but its concept has been modified by the Anti Rape La. Change of the penalty to a lower penalty retroacts even if accused is already serving sentence. Thus one serving life imprisonment is entitled to have his penalty be replaced by the new penalty of reclusion perpetua which is a more favorable penalty. VI. Theories Underlying Criminology A. The Juristic or Classical Theory. Its characteristics are as follows: 1. The basis of criminal responsibility is human free will. Man has the intelligence to distinguish what is legal from illegal. He has the freedom to choose either to obey or violate law. If he opts to violate the law, then he must bear the consequences. 2. The purpose of penalty is retribution i.e vengeance. Since the criminal injured society, then society has the right to demand that he must pay and suffer for his actions. 3. There is a direct and mechanical proportion between crime and penalty which penalty has already been determined before hand. For every kind of offense there is already a prescribed corresponding penalty. 4. The emphasis is the act itself with little regard for the actor/criminal. ―The song not the singer‖. B. The Positivist or Humanist Theory. Its characteristics are: 1. Man is essentially good but by reason of outside factors or influences he is constrained to do wrong despite his volition to the contrary. 2. The purpose of penalty is to reform the offender 3. The penalty to be imposed is that arrived at upon recommendation of a social scientist, sociologist, psychologist and similar experts. The penalty therefore varies for each offender although they committed the same violation. 4. The emphasis is on the actor/criminal. ―The singer not the song‖. C. The Ecclectic or Mix Theory. This combines the good features of both the classical and positivist theories. PROS. ELMER M. SAGSAGO Page 6 2017 CRIMINAL LAW D. The Utilitarian Theory or Protective Theory. This holds that although a person violated a penal law, still the person is punished only if it is proven the person is an actual or a potential danger to society. Per Magno vs. CA (June 26, 1992)‖ the primary function of punishment is the protection of society against actual and potential wrongdoers and it behooves upon a court of law that in applying the punishment imposed upon the accused, the object of retribution of a wronged society, should be directed against the actual and potential wrongdoers‖. 1. This theory was applied as justification in several criminal cases of violation of B.P. 22 where the accused was meted only a fine as well as in libel cases where again the penalty imposed was only a fine and not imprisonment. VII. Theory to which the Philippines adhere. The Philippines does not adhere to one theory exclusively. 1. The Revised Penal Code is essentially of the Classical School. It is based on the Spanish Penal Code which in turn is based on the French Penal Code and both codes belong to the classical school. However there are certain provisions which apply the Positivist Theory such as the provisions on minors, the articles on the modifying circumstances, the provision on impossible crimes. 2. As for special laws, there are those following the positivist theory such as the Probation Law, the Special Protection to Women and Children while others are based on the classical school, such as the Heinous Crime Law and the Dangerous drugs Law, The Anti Torture Law, The Anti- Human Trafficking law, law on firearms and explosives. 3. The Supreme Court has often applied the Utilitarian Theory in B.P. 22 and libel cases to justify the imposition of fine as sole penalty and deleted imprisonment. VII. Characteristics of Penal Laws. A. Generality. A Penal Law must not be selective or exclusive in its application but must be applied generally to all the inhabitants. This answers the question: who are bound by the penal law? Upon whom is the penal law applicable? This applies whenever an accused claims he is not criminally liable because of his unique personal character referring either to his nationality, profession, occupation or religion and similar personal characteristics. 1. Penal Laws shall apply to all who live or sojourn in the Philippines irrespective of race, sex, religion, wealth, nationality or citizenship. They may be permanent or temporary residents or are transients or foreign visitors, such as tourists. 2. This is in conformity with article 14 of the New Civil Code which provides: ―Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory subject to the principles of public international law and treaty stipulations‖. 3. But the following are exempt i.e. they cannot be arrested or prosecuted for violation of Philippine Penal laws: a). Those who enjoy immunity from arrest and prosecution by reason of the Principles of Public PROS. ELMER M. SAGSAGO Page 7 2017 CRIMINAL LAW International law. The immunity, referred to as ―Diplomatic Immunity” is of two kinds: (i) Functional Immunity- the immunity is granted to foreign officials by reason of the fact that they are performing state functions and (ii) Personal Immunity: those granted to foreign nationals by reason of their peculiar personal circumstances, or because of the particular office which they are holding. The immunity includes acts not related to their functions. (i). Sovereigns and heads of Foreign states whether on official or personal visit including members of their official or personal family. (ii). Visiting Foreign political representatives, the nuncio, including members of their official retinue or entourage. (iii). Resident Foreign Diplomatic Officers particularly the Ambassadors, Ministers Residents, Charge d‘ affaires, internuncios Iv). Foreign delegates to international conventions who enjoy ―Functional Immunity‖ What about the personnel and staff of diplomats? Under the Vienna Convention on Diplomatic Relations, by way of extension the Heads of Missions and their diplomatic staff enjoy diplomatic immunity but not the administrative, technical and support staff. b) Those who enjoy immunity from prosecution by reason of treaty stipulations. They refer to foreign nationals who are covered by exemption granted by a treaty to which the Philippines is a signatory. For example: the officers of the World Health Organization enjoy immunity because the Philippines acceded to the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations. ( WHO vs. Aquino, Nov. 29, 1972) Example: Consular Immunity. As a rule consuls i.e persons appointed by a state to take charge and represent the commercial interest of the sending state do not enjoy the diplomatic immunity of diplomatic agents/officials. If at all there is consular immunity, two requirements must be met: (i) The consular immunity must be provided for in a treaty adhered to by the receiving state and (ii) This immunity extends only to acts performed in relation to the exercise of consular functions i.e function related. The Philippines is a signatory to the the 1967 Convention on Consular Convention. Thus, the rule in the Philippines is this: consuls of foreign states who are in the Philippines are immune from arrest and prosecution by virtue of Article 43 of the l967 Convention on Consular Relation. c). Those who are exempt or immune by reason of a Law of Preferential Application i.e a law which specifically grants immunity from arrest and prosecution to certain specified persons. 1. The constitution provides: (i) Presidential immunity to the President during his term of office but only in respect to acts executed in the performance of his official duties (ii) Parliamentary immunity, under certain conditions, to members of congress 2. R.A. 75 which recognizes certain immunities of foreign resident diplomatic and consular representatives provided said foreign country grants the same immunities to Philippine PROS. ELMER M. SAGSAGO Page 8 2017 CRIMINAL LAW diplomatic and consular representatives stationed in said country (Principle of Reciprocity). a). The law extends the immunity to the domestic servants of the foreign ambassadors provided their names were registered with the Department of Foreign Affairs and transmitted to the Chief of Police of Manila. b). Note that even without R.A 75, the immunity granted to the resident foreign diplomatic representatives would be in accordance with customary international practices. 3 Code of Muslim Personal laws (P.D. 1083) under which it provides that‖ penal laws relative to the crime of bigamy shall not apply to a person married under Muslim Law where the requirements set therein are met‖. 4. Laws involving children or CICLs whereby persons who were charged for an offense during the period of their minority but which case was dismissed, or they were acquitted, or were convicted but they underwent successful rehabilitation, cannot be held criminally liable but only as to the offenses of perjury or falsification. 5. Sec. 17-C of RA 10364: The Expanded Anti Trafficking in Persons Act of 2012) which grants immunity from any action or suit in favor of ―(a) law enforcement official (b) social worker or (c) persons acting in compliance with a lawful order from any of the above persons, for lawful acts done or statements made during an authorized rescue operations, recovery or rehabilitation/intervention or an investigation or prosecution of an anti-trafficking case, provided that such acts shall have been made in good faith‖ B. Prospectivity. This answers the question: in reference to the time of commission, what acts/omissions are covered by the penal law? Penal laws apply only to future acts or omissions committed or incurred after the effectivity of the law. They do not have retroactive application (Irretrospectivity). Acts/omissions are punished in accordance with the laws in force at the time of their commission. 1. However a penal law may be given retroactive effect if it is favorable to the accused provided he is not a habitual delinquent. But even if favorable, there is no retroactive effect if it so provided by the law. 2. The term law includes Judicial Decisions and Rules of Procedure as well as administrative rulings and circulars. Thus the Circular issued by the Supreme Court as to the penalty for Violation of B.P. 22 was applied retroactively to those charged prior to said Circular. C. Territoriality. A penal law must be applicable to conduct committed only within a definite territory. This answers the question: in what place or where is a penal law enforceable? As a rule a penal law is applicable or enforceable only within the territorial jurisdiction of the authority which enacted the law. 1. Thus city/municipal penal ordinances are enforceable only within the territorial jurisdiction of the city/municipality concerned. Laws of national application are enforceable only within Philippine Territory. 2. Under the Principle of Intra-territoriality, for the Philippine Penal Law to be applied the act must be committed within Philippine Territory, or if it is a continuing or transitory act, an element must have taken place within Philippine territory. Consequently, if none of the elements took place within the Philippine territory, the act will not be punished under Philippine Penal Laws even if the effects of said act took place within the Philippine territory. a). Where the offenders contract a second marriage abroad, and thereafter reside in the PROS. ELMER M. SAGSAGO Page 9 2017 CRIMINAL LAW Philippines, the offenders may not be liable for bigamy. However they maybe liable for concubinage or adultery as the case may be. b). In case of bouncing checks where the check was issued in the Philippines even If drawn against a foreign bank, or where the check was issued abroad but drawn against a local bank, Philippine penal laws will apply. c). Philippine penal laws on kidnapping/abduction will apply where the victim was taken abroad and brought to the Philippines, or where the victim was taken away in the Philippines and then brought abroad. 2. Philippine territory includes: a). The geographical territory. The terestial ( land or native soil) fluvial and maritime territory i.e inland and territorial waters, as defined in the Constitution and recognized by the international community b). The extended territory by legal fiction (ex territoriality) under public international law i). The premises of Philippine Diplomatic missions abroad ii). War ships and airships c).Up to 24 miles from the base of the territorial sea for purposes of enforcing the Tariff and Customs Law d). Within 200 miles (The Exclusive Economic Zone) for purposes of protecting the maritime wealth e). As to the aerial territory, there are 3 schools of thought: i). The Absolute Theory in that subjacent state exercises full authority up to the outer space ii). The Relative Theory in that the subjacent state exercises authority up to where it has effective control iii). The Open Space theory in that no country may exercise jurisdiction over the air space 4. Will Philippine Penal laws apply to violations thereof committed within the premises of foreign diplomatic missions in the Philippines? Yes because the ground occupied by the foreign diplomatic mission is not in fact the territory of the foreign state but part of the native soil. However, the service or judicial process must be with the prior permission from the foreign diplomatic representatives because of the principle of “ inviolability of diplomatic premises‖ ( Reagan vs. CIR, 30 SCRA 968). 6. Justifications for Extra-territoriality: Principles Invoked by States to justify their jurisdiction over acts committed beyond their territory: a), Passive Personality Principle: crimes committed outside the territory of a state are subject to its penal laws if the victims are its nationals b). Protective Principle: this is based on national security under which a state may have jurisdiction over persons accused of acts in pursuance of overthrowing the state‘s government c). Affects Doctrine: a state may have jurisdiction over acts beyond its territory if it affects its commerce or harms its citizens d). Universality Principle under which states have jurisdiction over crimes universally recognized to be crimes against humanity such as piracy, slave-trading, torture, genocide and terrorism. 7. Extraterritorial Application of Philippine Penal laws 1. Pursuant to Principles of Public International law PROS. ELMER M. SAGSAGO Page 10 2017 CRIMINAL LAW 2. Pursuant to Article 2 of the RPC 3. Pursuant to provisions of Special Laws ARTICLE 2. EXTRA TERRRITORIALITY Article 2 enumerates the various situations when the Revised Penal Code may apply to offenses committed beyond the territory of the Philippines. A. Over offenses committed on board a Philippine Ship or Airship 1. This is based on the Affects Doctrine 2. This paragraph applies only to commercial ships/air ships. This should be understood to mean non-military ships or airships, whether used for commercial purposes or for private use. If a crime is committed on board a military ship/air ship, such crimes are covered by Philippine Penal laws not because of this paragraph but by virtue of public international law (ex territoriality) which holds that such military crafts are extensions of the territory of the state which owns them. 3. The nationality of the vessel as a Philippine ship/airship is determined by its registration in accordance with Philippine laws and not by the nationality of its owners. This is in consonance with the Flag State Rule. All vessels registered elsewhere are foreign vessels. However, during war time, enemy vessels are those owned by the nationals of the enemy even if registered in the Philippines or elsewhere. 4. This paragraph applies in two situations: a). If the Philippine ship is in the international waters or in the high seas i.e. that portion of the waters which is not within the territory of any state b) If the Philippine ship is within the territorial waters of a foreign state. Under the principle of International Comity the foreign state is given the priority to assume jurisdiction over the offense. If it does not then the Philippine courts can try the offense. c) If the ship is within Philippine waters what applies is the Principle of Territoriality. 5. General Principles governing the jurisdiction over offenses committed on board merchant vessels within the territorial waters of another state: a). French Rule: The stress is on the nationality of the vessel. Such offenses are triable by the courts of the state which owns the vessel, unless the crimes affect the security, peace and order of the host state b) English/British Rule: The stress is on the territory or place where the vessel is hence the crimes are triable under the laws of the host state, unless the crimes pertain merely to the internal management or discipline of the vessel and its crew. It is said that the Philippines adhere to the English rule. There is however no difference in the effect of both rules. One rule is the exception to the other. 6. QUESTION: Do Philippine Penal laws apply to crimes committed on board foreign vessels which are within Philippine waters? a). No if the vessel is a warship b). Yes if the vessel is unregistered or is a pirate ship c) If it is a merchant vessel: i). Yes, if the Philippine is the port of destination under the principle of territoriality, unless the PROS. ELMER M. SAGSAGO Page 11 2017 CRIMINAL LAW crime pertains merely to the internal management/discipline of the vessel ( English Rule) ii). No, if the vessel is merely passing in transit, or is forced to temporarily dock or enter Philippine waters, unless the crime affects the security, peace and order of the Philippines, such as killings, rape or serious infliction even if committed by a crew against another crew. iii). QUESTION: A Filipino crew member of a Japanese ship which docked in Manila was found keeping ten kilograms of shabu in his bunker. Is he liable under the Dangerous Drugs law? Answer: No if the vessel is merely in transit, unless he sniffs the shabu. Yes if the Philippines is the port of destination. In PP. vs. Wong Cheng ( 46 Phil. 729) it was held that smoking opium on board a vessel in transit is already punishable as it produces its pernicious effects upon the Philippines, but mere possession of opium on board a vessel in transit is not punishable per se, per U.S vs. Look Chaw ( 18 Phil. 573) d). Note however that under the Convention on the Law of the Sea to which the Philippines is a signatory, it provides that the criminal jurisdiction of the coastal state i.e. Philippines, should not be exercised in connection with any offense committed on board the ship during its passage except in the following cases: (i) if the consequence of the crime extends to the coastal state (ii) if the crime is a kind to disturb the peace of the country, like killing, or the good order of the territorial sea (iii) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag state (iv) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances B. Over crimes involving the forging or counterfeiting of Philippine notes, currencies, and bringing into the Philippines of said forged notes. 1. The act of forging/counterfeiting is in a foreign country and the actors may be foreigners. 2. The reason is to protect the monetarial system and economy of the country and preserve its financial credit and stability.(Affects Doctrine) C. Over Crimes committed by public officers in relation to their office. 1. If the offense is not related to their office but committed within the premises of the Philippine Diplomatic Missions, Philippine laws still apply. 2. The reason is because the offenses affect the integrity of Philippine public administration. There is a need to preserve public faith in the government. 3. Examples: bribery, malversation, infidelity, falsification, graft and corruption. D. Over Crimes against the Law of Nations and those against national security. This is based on the Universality Principle. 1. Crimes against the law of nations include: (a). The traditional crimes of (i). Piracy in the High Seas (ii) Mutiny in the High Seas (b). Under the Rome Statute of the International Criminal Court: (i).Genocide: acts committed with intent to destroy, in whole or in part, a national, ethnical, racial PROS. ELMER M. SAGSAGO Page 12 2017 CRIMINAL LAW or religious group (ii). Crimes Against Humanity: acts committed as part of a widespread or systematic attack directed against civilian population (iii). War crimes: violations of the Geneva conventions of August 12, 1949 and serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law. 2. Pirates are hostis humanis generis or universal criminals and they may be tried under the laws of the country which first acquire jurisdiction over them. The Somali pirates who took hostage an American captain may be tried in the Philippines. 3. The crimes against national security are those covered under Title I, Book II such as: treason proper, conspiracy and proposal to commit treason, and espionage. E. The following are examples of specific Philippine Penal Laws which provide for extra territorial application: (i). Violations of R.A. No. 9851 known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity (ii). The crime known as terrorism under R.A. 9372 or the Human Security Act of 2007. This law applies to any person who commits an act covered by the law if committed: (a) against Philippine citizens (b) or persons of Philippine descent, when their citizenship or ethnicity was a factor in the commission of the crime‖ even if the act was done outside the Philippines. This is based on the Passive Personality principle. (iii). Trafficking In Persons or Violations of RA. 10364: Section 26-A of The Expanded Anti- Trafficking Against Persons Act of 2012 provides: ― The state shall exercise jurisdiction over violations of the law even if committed outside the Philippines and whether or not such act or acts constitute an offense at the place of commission having been commenced in the Philippines and other elements having been committed in another country, if the suspect or accused is a Philippine citizen or is a permanent resident of the Philippines or has committed the act against a citizen of the Philippines‖. The act or an element must have begun in the Philippines to be covered. CRIMES AND FELONIES I. In General: Penal laws punishes only external conduct whether in the form of a physical act, written, oral; intentional, act of omission or refusal to act or negligent acts. 1. A crime is an act or omission in violation of any penal law forbidding or commanding the doing the act, under pain of penalty. 2. Felony refers to an act or omission which is punished by the Revised Penal Code 3. An infraction is a violation of an ordinance 4. An offense is a violation of a special law. 5. Misdemeanor is an American concept and is not used in the Philippines. PROS. ELMER M. SAGSAGO Page 13 2017 CRIMINAL LAW II. CLASSIFICATION OF CRIMES/FELONIES A. According to their inherent nature 1. Mala In Se. These are acts/omissions which are inherently wrong and are universally condemned as such. Even without a law they are in themselves evil/bad and ought not to be done. Thus, killing or injuring a human being, sex crimes, the taking of the property of another without or against his will, destruction of the property of another, are in themselves universally considered as wrong. The principles involve the following: a). Criminal liability is based on the moral trait of the offender hence the existence of intent or dolo is essential in determining criminal liability b). Good faith and lack of intent are defenses c). In determining the penalty the following are taken into account: (i) the presence or absence of modifying circumstances (ii) the degree of accomplishment of the crime (iii) the degree of participation of the offender d). All crimes defined and penalized under the Revised Penal Code are considered as mala in se e). Crimes punished by special laws are mala in se in two situations: First if they are inherently wrong such as (i) disenfranchising a voter (ii) the practice known as ―dagdag-bawas‖. The reason for the latter being : ― otherwise, even errors and mistakes due to over work and fatigue would be punishable… intentionally increasing or decreasing the number of votes received by a candidate is inherently immoral, since it is done with malice and intent to injure another‖ (Garcia vs. C.A., March 14, 2006).(iii) Child Abuse (iv) VAWC (v) trafficking in persons Second is if the act is a derivative of a felony such as: piracy in Philippine Waters and Highway robbery under P.D. 532; carnapping, cattle rustling. f). Heinous: a grievious, odious, and hateful offense which by reason of its inherent or manifest wickedness, viciousness, atrocity, and perversity, are regarded as seriously outrageous to the common standards or norms of decency and morality in a just, civilized and orderly society. 2. Mala Prohibita. Acts or omissions which are not inherently evil or immoral but become punishable because of a law which says they are forbidden. They are violations of regulatory statutes or rules of convenience designed to secure a more orderly regulation of the affairs of society. Laws defining crimes mala prohibita condemn behavior directed not against any particular individual but against public order. A violation is deemed a wrong against society as a whole and generally unattended with any particular harm to definite persons ( PP.vs Doria, Jan. 22, 1999). The principles involve the following: a). The moral trait is not considered b). Good faith and lack of criminal intent are not defenses. The sole issue is whether the law has been violated. i). However it must be proven that there was an Intent to perpetrate the act i.e. that the act was performed voluntarily, willfully and persistently despite knowledge that the act is PROS. ELMER M. SAGSAGO Page 14 2017 CRIMINAL LAW prohibited. The act is not a casual or accidental performance. ii). In crimes involving the possession of prohibited articles, this requirement is met by proof of an Intent to Possess (animus possidendi). Example: R.A. 9516 (Further Amending PD 1866) provides that‖ a temporary, incidental, casual, harmless, or transient possession or control of any explosive or incendiary device, without the knowledge of its existence or its explosive or incendiary character, shall not be a violation…‖ c). Modifying circumstances, the degree of accomplishment/execution and degree of participation, are not taken into account. Hence there are no attempted or frustrated stages as well as accomplices or accessories unless the law provides otherwise. d). There are crimes which, though punished by special laws, are still mala inse a). those which are inherently wrong, such as the crime known as Child Abuse and wife battery, disenfranchising a voter and the practice known as ―dagdag-bawas‖. The reason for the latter being : ― otherwise, even errors and mistakes due to over work and fatigue would be punishable… intentionally increasing or decreasing the number of votes received by a candidate is inherently immoral, since it is done with malice and intent to injure another‖ (Garcia vs. C.A., March 14, 2006) b). Offenses which are derivatives of crimes under the Revised Penal Code such as cattle rustling, carnapping, piracy in Philippine waters B. According to the manner of commission they are either intentional or culpable ( Article 3) 1. Intentional or those committed with deliberate intent (Malice). They were consciously performed with full knowledge of their consequences and accompanied with a purpose of causing injury or harm. a). They may be by positive acts, such as the act of taking property, injuring, or performing a lascivious act such as kissing the victim. They may be oral or written. b). They may be by omissions. Crimes by omissions result when there is failure to act when required by law, a deliberate refusal to do what the law commands. Examples are: Misprision of treason, Arbitrary Detention under Article 125, Failure to issue receipts, Refusal to Render Assistance towards the administration of Justice, Abandonment of Persons in Danger of Dying, Abandonment of Minors. c) Its elements are freedom, intelligence and intent. If any of these elements is absent, the act will not give rise to an intentional crime 4. Culpable or those which result from a lack of skill (imprudence) or lack of foresight (negligence). a).What is punished is the state of mind of the accused unlike in intentional felonies where the law looks into the act. b). Its elements are freedom, intelligence and lack of skill/foresight c). QUESTION: Is negligence a mode of committing a crime or is it the crime itself? (i). Under Article 3 negligence is a mode of incurring criminal liability. It is one of the two ways PROS. ELMER M. SAGSAGO Page 15 2017 CRIMINAL LAW by which a crime is committed. However under Article 365, negligence is the felony itself. The resulting injuries are considered merely for purposes of determining the penalty to be imposed. The negligence is considered as reckless if the result is foreseeable otherwise it is considered as simple negligence. d). Nomenclature of crimes through negligence if several injuries result. i). There is only one crime which is the negligence. Since the felony is the negligence itself the proper name of the crime would be reckless/simple negligence resulting in multiple homicide, multiple physical injuries and/or damage to property. Ii). In the case of Jason Ivler vs. Hon. Modesto San Pedro ( Nov. 10, 2010), the Supreme Court finally declared that reckless imprudence is only one crime and the consequences on persons and property are material only to determine the penalty. This decision effectively abandoned the pronouncements in previous cases which held the contrary view. e). The basis for the penalty for culpable felonies are (i) whether the harm was foreseeable and (ii) the gravity of the resulting injury. The penalty is, as a rule lower than the penalty provided for had the offense been intentional. The exception is in the crime of malversation where the penalty is the same whether it was intentional or culpable. f). If the accused is prosecuted under an Information charging him with an intentional felony but the evidence shows the crime was through negligence, he may be convicted for negligence without amending the original Information. This is because, under the principle of inclusion of offenses, an intentional felony includes a culpable felony. Thus an accused charged for intentional malversation or falsification may be convicted of culpable malversation or negligence resulting in falsification ( PP vs. Jose Uy, 475 SCRA 248) g). There are felonies which cannot be committed through negligence (i). if the nature of the crime requires a specific state of mind on the part of the accused, or (ii). if the elements of the felony include malice, deceit, or specific intent, or (iii). when the very nature of the crime is such that it can only arise if it was intended. The following cannot be committed by negligence: (i). Murder and rape (ii). Estafa, theft/robbery which requires the intent to gain as an element (iii). Sex crimes which requires a lewed design or intent to obtain sexual gratification (iv). Crimes against personal security such as kidnapping and abduction, threats and coercion (v). Crimes against National Security and the Law of Nations (vi). Political crimes (vii). All crimes against honor (vii). Crimes Against Public Morals such as gambling, prostitution, vagrancy, grave scandal (viii). Certain crimes by public officers such as Bribery and Technical Malversation h). There can be no conspiracy through negligence i). Violations of special laws cannot be committed through negligence j). Following the decision in the Ivler case, the principle of complex crimes do not apply to PROS. ELMER M. SAGSAGO Page 16 2017 CRIMINAL LAW culpable felonies. 3. Requirement of Voluntariness: whether the felony is intentional or culpable, it must be voluntary which requires a). Freedom in that the accused acted of his own free will and was not under compulsion from any form of threat or force b). Intelligence in that the accused was aware of the nature of his actions and of its consequences c) In intentional crimes he acted with evil intent (malice) in that he intended to do harm, or that he was careless or negligent in a culpable felony. C. According to whether they are capable of being accomplished and are capable to produce material injuries (Article 4) 1. Real/Material Crimes: the act results in actual damage to a victim either to his life, security, rights, property or honor. 2. Impossible Crimes: where the acts do not produce any actual damage or injury. They refer to acts which would have been an offense against persons or property, but the crime is not produced by reason of its inherent impossibility of accomplishment or on account of inadequate or ineffectual means (Article 4). a). Kinds of Impossibility: Legal and Physical Impossibility. i). Legal Impossibility- the accused performed the act prohibited by law with the intention of bringing about the crime, but based on the juridical nature, concept or elements of the offense, the intended crime does not result. Examples: (i) Shooting a person not knowing he is already dead is an impossible crime because homicide or murder requires that the victim must be alive at the time the injury was inflicted. ii) Stealing a property which turns out to be the property of the thief results to an impossible crime because the law requires that in theft, the property must belong to another. One cannot be guilty of theft of his own property. ii). Physical impossibility- the intended crime can not be produced due to factors or circumstances beyond the control of, or unknown to, the accused. Example: pick-pocketting an empty pocket, opening a safe without contents. Firing into a room not knowing the intended victim was absent therefrom ( Intod vs. CA 215 SCRA 52 ). Stealing a check which turns out be a watered check. b). Ineffectual means: under no circumstances can the means employed produce the crime. Examples: (i) putting sugar in the food can never produce instant death (ii) pulling the trigger aimed at an unsuspecting victim which gun had no bullet. Inadequate means: the quantity or amount is not sufficient to produce the desired result. A milligram of arsenic cannot kill. If the means used is adequate but the intended result is not produced, the accused is liable for the frustrated stage of the intended crime. Thus if 10 grams of poison failed to kill the victim due PROS. ELMER M. SAGSAGO Page 17 2017 CRIMINAL LAW to medical attention, the accused is liable for frustrated murder. c). Principles involved: i). The accused must not be aware of the impossibility of accomplishment of the intended crime or that the means is inadequate or ineffectual. ii). An impossible crime is a crime of last resort in that the act performed should not be punished by another provision of the Revised Penal Code. Thus when one forcibly robs another but the property turns out to be his own, such act is punished as grave coercion hence the principle of impossible crime does not apply. Where the crime requires the victim to be a woman, e.g. abduction, seduction or consented acts of lasciviousness, and the accused honestly believed his victim to be a woman but who turned out to be a man, the principle of impossible crime has no application. The accused should be charged with another offense. iii). An impossible crime has no stages of execution and is punished by a fixed penalty of Arresto Mayor and a fine of P500.00. It can not be committed through negligence. iv).The resulting injury is limited to crimes against persons; such as those resulting in death, physical injuries or rape; and crimes against property such as theft and estafa. There may be an impossible crime of robbery by force upon things but there is no impossible crime of robbery by means of violence or intimidation. v). The correct and complete nomenclature is: ―Impossible crime of theft, murder, homicide physical injuries‖, as the case may be. d). The principle of an impossible crime is based on the positivist theory because while objectively the accused has not committed a crime, subjectively he is a potential criminal. He is punished to protect society from his criminal tendencies. (Personal opinion: it is more the protective principle which applies.) D. According to whether they have Stages of Commission (Article 6). 1. Formal Crimes: those committed in one instance and do not have any attempted or frustrated stages. Examples: threats, coercion, physical injuries, libel, defamation, Alarms and Scandal. 2. Material Crimes: those with at least two stages of execution. E. According to their Stage of Execution (article 6) 1. Attempted Felony 2. Frustrated Felony 3. Consummated felony F. According to their Gravity (Article 9). 1. Grave felony 2. Less Grave felony 3. Light Felony PROS. ELMER M. SAGSAGO Page 18 2017 CRIMINAL LAW G. According to the Number of Violations Constituting the Crime 1. Singular Crimes: One Separate Crime Per Violation or Separate Act–Separate Crime Principle: there is one crime resulting from one injury or act or violation and meriting a penalty distinct and separate from the penalty imposed for similar injuries from similar acts. Thus if A shoots X, stabs Y and boxed Z, each act results to individual crimes with separate penalties. 2. Plural crimes: Several Violations/Injuries But One Crime and One PenaltyPrinciple: a crime where there are several violations or acts committed or injuries inflicted but all of these are considered only as producing one crime and given a single penalty. Under the law and in the mind of the offender the several acts constitute only one crime. a). Complex Crime Proper ( delito compuesto) when one act gives rise to two or more grave or less grave felonies. Under article 48, the penalty for the most serious offense is that imposed. E.g.: multiple homicide. b). Compound crime ( delito complejo) when one offense is necessary to commit another. Under article 48 there is only penalty- that of the most serious offense. E.g.: Estafa through Falsification c). Composite Crimes or Special complex Crimes: when two or more different crimes are committed but these are considered only as one felony and only one fixed penalty is imposed. E.g.: robbery with homicide. d). Continuous/Continued Crimes ( delito continuado): an instantaneous but single offense consisting of several acts arising from one criminal intent, which are committed at or about the same time, in or about the same and place, against one or more persons, and violating the same penal provision. E.g.: taking of two roosters belonging to different persons. (Two birds with one stone). Robbery of several persons or different houses within the same area pursuant to a single intent to commit a general robbery, is only one crime of robbery. Threat against two or more persons in a single occasion. (i). When applied to theft, this sometimes is known as the single larceny doctrine that is, ― the taking of several things whether belonging to the same or different owners, at the same time and place, constitutes but one larceny‖ ( Santiago vs. Garchitorena 228 SCRA 214) (ii). The principle applies to violations of Special laws such as in the crime of large Scale Illegal Recruitment, carnapping, cattle rustling, Human Trafficking, Violation of the Anti-Graft law ( Santiago vs. Garchitorena) (iii). It does not apply to crimes against persons. Querry: Does it apply to estafa by deceit? Or to crimes against personal security such as kidnapping of several victims? e). Absorption of Crime Principle: There is only one crime for which the actor will be held liable and the other acts or injuries or crimes will be deemed elements or ingredients of this one crime, consequently they lose their identity as distinct crimes (i) generally it is the most serious offense which is preferred for which the actor is liable except as to political offenses (ii) in cases of felonies, what they absorb is another felony and not an offense except as to political offenses PROS. ELMER M. SAGSAGO Page 19 2017 CRIMINAL LAW (iii) an offense cannot absorb a felony unless the special law so provides. An example is VAWC which absorbs certain felonies. f). Other Crime as Aggravating Circumstance: there is only one crime and the other injuries or violations will be considered aggravating circumstances H. According to the situs or place of commission. This classification is important for purpose of determining the venue or court where the offender is to be prosecuted and tried. 1. Localized crimes: those where all of the elements took place in one jurisdiction, such as theft, homicide, threats 2.Transitory crimes: also known as moving crimes refer to those where the elements took place in different jurisdictions such as estafa, kidnapping, abduction. Note crimes: committed on board moving vehicles or ships are placed in this category. I. According to the Time Frame of Commission 1. Instantaneous Crimes: those which are produced or which arise at the very moment the acts of execution are performed. E.g.: theft, defamation, physical injuries, bigamy. 2. Continuing: a single offense which is executed, or which arose from acts performed, within a span of time. Example: estafa, kidnapping. Note: a continued crime (delito continuado) is different in concept from a continuing crime. A continued crime is always localized and instantaneous but a continuing crime may be either localized or transitory. Kidnapping may be localized or continuing, and transitory. The crimes of rebellion and treason are examples of continuing and transitory crimes. J. According to its Procedural requirement for Prosecution. 1. Private Crimes: those which cannot be prosecuted de officio; those which require that the offended party file a complaint for the criminal case to be instituted. These are exclusively the crimes against chastity and the crimes of adultery and concubinage, but not rape. 2. Public: those which do not require the intervention of the offended party and which may be instituted, investigated and prosecuted on complaint of any member of the public or law enforcement agency. K. According to whether the crime produces civil liability. 1. Victimless crimes: those which do not result to any injury to a private person such that no civil liability may be imposed on the accused. 2. Crimes with Private Victims or Offended Parties: those where the injury or damage to a person is the essence of the crime and where a civil liability may be imposed upon the accused. L. According to Motive and Goal. PROS. ELMER M. SAGSAGO Page 20 2017 CRIMINAL LAW 1. Ordinary or common Crimes: those committed for personal or private reasons 2. Political Crimes: those which involve the use of force, violence, terror, fraud, deception, economic pressure, or any other illegal means, to create, maintain, or enhance the power, interest, or ideology of a group, organization, or institution, to the detriment of, or destruction of other rival groups, often causing fear in and victimization of innocent persons. a). Kinds: i). Political crimes of domination and oppression or state crimes- those committed by powerful institutions of the state. Examples: domestic espionage, human rights violations, restriction of political rights, and enforced disappearance. Enforced disappearance as a state practice has been banned by the international community so that the ban on it is now a generally accepted principle of international law which is part of the law of the Philippines even if the Philippines did not sign the Declaration on the Protection of All Persons From Enforced Disappearance. Its elements are: (i) arrest, detention, abduction or any form of deprivation of of liberty (ii) carried out by agents of the state or persons or group of persons acting with the authorization, support or acquiescence of the state (iii) followed by a refusal to acknowledge the detention, or concealment of the fate of the disappeared persons and (iv) placement of the disappeared person outside the protection of the law (Razon Jr.vs. Tagitis, 606 SCRA 598, December 3, 2009) ii). Group or hate or bias crimes- those committed by rival groups against one another. Example: crimes based on racism. iii). Political crimes of rebellion, sedition, coup d‘etat- those committed by groups against the existing social and political order. b). Principles involved: i). “Political Offense Doctrine‖. Ordinary crimes committed in furtherance of the political crimes are divested of their character as ―common‖ and assume political complexion of the main crime of which they are mere ingredients, and consequently, cannot be punished separately from the principal offense, or complexed with the same. Any ordinary act assumes a different nature by being absorbed in the rime of rebellion. ( Satur Ocampo vs. Abando 715 SCRA 673, Feb. 11, 2014 affirming the Hernandez and the Enrile vs. Salazar rulings ). They are often loosely referred to as “Crimes with political coloration‖. A political crime is one directly against the political order as well as such common crimes committed to achieve the political purpose. Common crimes committed in furtherance of a political crime are absorbed‖ ( Gonzales vs. Abaya, 449 SCRA 445). ii). What differentiates political from common crimes is the motive and goal of the offender. The burden of proving political motivation must be discharged by the defense, since motive is a state of mind only the accused knows ( Ocampo vs. Abando). (a). If an accused is charged with a common crime, such as murder, but if during trial he is able to show that the common crime was indeed committed in furtherance of rebellion, then the remedy is to amend the Information to conform to the evidence ( Ocampo vs. Abando) iii). Political crimes maybe continuing and transitory. M. According to their magnitude. PROS. ELMER M. SAGSAGO Page 21 2017 CRIMINAL LAW 1. Crimes Against the Law Of Nations: those which, on account of their magnitude, are deemed to be a crime against all nations and may therefore be prosecuted and tried by any state. 2. Crimes Against A particular State (State Crimes): those which are defined as crimes and penalized as such by the laws of a particular state and may only be tried and prosecuted by the said state N. According to whether the accused are adults or minors 1. Status Offenses: those which are considered as crimes if committed by minors but are not punished if committed by adults. O. Other Classifications: White Collar Crimes vs. Street Crimes; Cyber crimes III. COMPONENT ELEMENTS OF A CRIME. For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an evil intent. ―Actus non facit reum, nisi mens sit rea” ( PP vs. Manuel 476 SCRA 461) A. The Actus Reus 1. This is the physical element consisting of an overt or observable physical activity or bodily movement capable of producing an effect on the outside world. This may be in the form of: (a). a physical positive conduct such as the act of throwing a stone, firing a gun (b). an omission such failure to file the appropriate charges within the period prescribed by law, or (c). a negligent act such as driving fast in a crowded street, or (d) written such as falsification or (e). oral act as in defamation. 2. Mental acts are not included such as ideas, beliefs, thoughts. Status of a person is not also included such as being poor, destitute or unemployed ( how about vagrancy?) being a female or being of a certain age, or being in a certain state of health or intelligence. 3. The act/omission must be penalized by law 4. The act/omission must be voluntary. There must be freedom of action or choice. The actus reus must be the result of a conscious choice and deliberate will of the accused. The following are examples of acts not considered as voluntary: i). Acts resulting from force or threat ii). Acts resulting from reflexes, convulsive bodily movements, spasms iii). Acts done while a person is asleep, unconscious or in a state of hypnosis iv). Any movement which is not the product of the conscious effort or determination of a person B. The Mens Rea (meaning guilty mind) 1. This is the mental component of the crime. It refers specifically to the state of mind required in order that a person will be criminally liable. It is often associated with the evil, bad or criminal mind. An act must proceed from a criminal or evil mind. The following maxims are based on this requirement: (i). actus non facit reum nisi mens sit rea ( an act done without criminal intent is not a crime) (ii). ―I am not a criminal unless my intention/mind is criminal‖. 2. The mens rea is either the malice in intentional felonies or the negligent or uncaring or PROS. ELMER M. SAGSAGO Page 22 2017 CRIMINAL LAW indifferent attitude, recklessness or willful blindness, in culpable felonies. ( I DON‘T GIVE A DAMN ATTITUDE) 3. Mens Rea in intentional felonies may either be: a). The general criminal intent- the evil or bad purpose which is presumed whenever a person commits a wrongful act.The offender is said to have intended the act. The reason for the commission of the act is to harm or injure or cause damage to another as to his/her person, property, reputation, security, or to the public at large. b) The specific criminal intent- this refers to the specific purpose or result to be achieved. It is the use of a specific means to achieve a specific result. i).Whenever a crime requires a specific intent, such intent becomes an element of the crime and must therefore be proved directly or by inference. Examples: the intent to kill in attempted/frustrated homicide; the intent of gain in theft; the intent to have sex in attempted rape; lewed design in abduction. ii). Specific intent may be proved by proof of the scienter or knowledge of a particular fact or illegality which will result in criminal liability. This scienter may be actual or constructive. Thus adultery/concubinage requires knowledge of the married state of the co-accused; direct assault requires the accused to know the victim is a person in authority; the accessory must know of the commission of the crime by the principal. The fence must know the article is the subject of theft or robbery. c). There are crimes where malice or criminal intent need not be proved: i). Crimes Mala Prohibita where the sole issues is whether the law was violated so long as there was intent to perpetrate the act ii). Strict Liability Crimes where it is enough to show that the act prohibited was committed without regard to the mental state of the accused. Example: statutory rape and technical malversation. iii). Culpable felony where the malice is replaced by negligence. d). Doctrine of Transferred Intent: If the accused intends an injury upon a particular person or upon an intended victim but the injury befalls upon another, the original intent is transferred from the intended victim to the actual victim, though not intended. This principle applies in complex crimes proper ( delito complejo). Example: A man shoots at X intending to kill him but he missed and the bullet hits and injures Y. The shooter is liable for the complex crime of Attempted Homicide (for shooting at X) with Attempted/frustrated Homicide for the injury of Y. If he killed X but the bullet exited and slightly injured Y, the crime is Homicide with Attempted Homicide and not merely physical injuries. The original intention to kill X is transferred and applied also to Y. e). Defenses Against Malice or Intent i). Proof of Good Faith: the state of mind consisting of honesty in belief, intention or purpose, or absence of any bad or illegal intention ii) Proof of Mistake of Fact (misapprehension of facts) which exempts a person from criminal liability. It is expressed in the adage‖ Ignorantia facti excusat‖. It requires the following PROS. ELMER M. SAGSAGO Page 23 2017 CRIMINAL LAW elements: (a). that the act would have been lawful had the facts been as the accused believed them to be (b). the intention of the accused is lawful ©. There was no negligence on the part of the accused Example: Petronius, the South African Olympic hero was convicted for shooting his girlfriend who was inside the toilet whom he thought was an intruder. There was negligence. In PP.vs. Oanis, Mistake of Fact was not appreciated in favor of policemen who shot death a sleeping person whom they believed was the dangerous criminal they were ordered to arrest. They had all the time to ascertain his identity. iii). Mistake of fact applies only to intentional felonies and has no application to culpable felonies. It does not also apply to strict liability crimes. The legal terminology of this defense is ―mistake of fact amounting to any of the justifying or exempting circumstance e.g. self defense, defense of relative or stranger, performance of duty, obedience to superior order. iv), The mistake refers to the situation and not to the identity of the victim. Thus; a husband who shoots a woman engaged in sexual intercourse mistakenly believing her to his wife is not entitled to this defense. What is involved is a mistake in identity. v). This is different from Mistake of law where a person is not liable if he relied upon a law or decision which was subsequently found to be invalid or erroneous. 5. According to the American Model Penal Code there are four kinds of intent: a). Purposeful- where the accused had the desire to cause he result. This is synonymous to our concept of specific intent. b). Knowing- where the accused knew what he was doing and understood the probable results thereof though he did not intend the result. This is similar to general intent. c). Reckless- where the accused is indifferent to the results of his acts d). Negligent- the failure of the accused to do something a reasonable man would do, it is inattentiveness. 6. MOTIVE. a). This is the personal or private reasons why an offender commits a crime. It is the moving power which impels a person to do an act for a definitive result. Examples: profit or gain, anger, jealousy, love, revenge, hatred, pride or ego. b). By itself motive is not necessary for conviction and need not be proved. There are crimes considered as senseless, in the same manner that proof of lack of motive is not a defense. The exceptions are as follows: i). when it is an essential element of the crime as in libel, malicious mischief, direct assault and in political crimes. ii). When the evidence against the accused is purely circumstantial iii). When there is doubt as to the identity of the accused iv). When the act produces several crimes as the act of entering the estate of another, proof PROS. ELMER M. SAGSAGO Page 24 2017 CRIMINAL LAW of motive is necessary to determine whether the offense is that of trespass, attempted theft, or plain vagrancy. v). When the accused sets up Defense of Stranger c). Distinguished from intent i). Motive is the moving power or personal reasons which impel a person to do an act for a definite result. Intent is the purpose of using a particular means to bring about a desired result. Thus the motive is revenge and the choice of the means to achieve it, which is by killing, is the intent. ii). Motive is as a rule, not an element whereas intent is an element of intentional felonies iii). Motive, if attending a crime, always precedes intent; intent necessarily follows motive iv). Motive is a matter of procedure while intent is a matter of criminal law. d). Motive may indicate criminal intent. Thus heavy business losses and a desire to obtain cash ( motive) may indicate the intention to commit arson to collect on the insurance. HOW CRIMINAL LIABILITY IS INCURRED Article 4 provides. Criminal liability is incurred: (a) By committing a felony even if the wrong done be different from that intended.(b) By committing an impossible crime. I. The First Mode: By committing a felony. A. The act or omission must be a felony. If the act is not a felony, the offender incurs no criminal liability for the resulting injury. The following are illustrations: 1. A pregnant woman who, in order to commit suicide, drinks poison, but does not die, but suffers an abortion, is not liable for abortion. Committing suicide is not a felony. 2. A man who points a gun at his head, fires but the bullet grazes his head and hits another killing the latter, is not liable for the death, unless he could have foreseen that other people would be placed in danger by his acts. In the latter case he would be liable for the death as a culpable felony. 3. A man who wrests his bolo from one who took it, with such force that the point pierces another who dies, is not liable for the death as taking back one‘s property is not a felony. 4. One who inflicts an injury upon another under any of the justifying circumstances is not liable for the resulting injury. His act is not a felony but is considered as lawful. Example: In order to save himself, a person shot at his five attackers. He missed and the bullet hit and killed an innocent bystander. The person is not liable for the death. Although the article refers to a felony, it was applied to carnapping which, while punished under a special law, was held to be similar to theft or robbery, and hence is a felony within the meaning of Article 4. Thus a carnapper was held liable for the death which occurred during the commission of carnaping. B. The offender is liable even if the felony does not produce any actual injury such as: 1. In the case of impossible crimes where it is not the result which is considered but the fact that PROS. ELMER M. SAGSAGO Page 25 2017 CRIMINAL LAW the offender is a potential danger to society. 2. In cases of victimless crimes such as gambling, vagrancy, or prostitution 3. When the desired result is not achieved as in the crime of false testimony/perjury where the testimony is not believed. C. Where an injury results, the Doctrine of Causation applies, i.e. the actor is liable for any and all injuries or result if his act was the cause of said injuries/result. For what result or injury is the actor liable? 1. For the actual result which is the intended result. The act is the Factual Cause. 2. For the actual result even if it is not the intended result if it is the direct, natural and logical consequence of the felonious act. The act is the Proximate or legal Cause. D. The Doctrine of Proximate or Legal Cause: that cause which in its natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, without which the injury would not have resulted. “El que es causa de la causa es el causa del mal causado‖. He who is the cause of the cause is the cause of the evil caused‖. 1. The act may immediately produce an injury as when a man fires a gun and hits his victim who dies instantly, or the injury is not produced instantly but the act sets in motion a series of events constituting a natural and continuous chain of events which finally ends in the injury as the natural and probable result. 2. The acts may either be of the following: a). the performance of a positive act upon the person of the victim or upon his honor, security, or rights For example: as stabbing him, which eventually results to his death; or uttering slanderous words which bring him into disrepute; or sending threatening letters to cause him mental torture. b). an act performed upon his property which may result to the destruction of his property, its loss or diminution in value. The act on the property may also result in physical harm to the victim, such as tampering with the brakes of his car causing it to be unmanageable till it falls down on a ravine killing the victim, or burning another person‘s house not knowing a person is sleeping inside. c). or an imprudent act, such as firing a gun in the air and the bullet hits a person in its descent; or throwing a stone in a busy street. In a case the driver was negligent causing the bus to turn turtle, the gas to spill which ignited when rescuers came with lighted torch resulting to the death of several passengers. The driver was held liable as his negligent act was the proximate cause of the death. d). Or where fear is instilled in the mind of a person, or an immediate sense of danger, causing the person to act to try to escape but in so doing, he injures himself or dies. ( Instilling a Sense of Danger Principle) i) the man who ran amuck in bus causing the passengers to jump outside and one is ran over by a passing truck ii) the man who shouted ―fire‖ or ―bomb‖ inside a packed movie house causing people to panic and in the ensuing dash for the exit, some are trampled to death iii) the man who threatened to stab another whereby by the latter jumped into the water and drowned as he does not know how to swim iv) The man who threatened to stone the boys who climbed a mango tree, prompting the boys to climb down fast and one fell and broke his foot PROS. ELMER M. SAGSAGO Page 26 2017 CRIMINAL LAW v). making motions to box the victim who jumps back and falls into an open manhole E. Rule In Crimes Against Persons Who were injured and died. He who inflicted the injury is liable for the death. 1. Death must befall the same person injured and not another 2.The injury inflicted must be capable of producing death 3. Where the victim is suffering form an internal ailment, the accused is still liable if his act is the actual cause of the death, it accelerated the death, or is the proximate cause of the death F. Doctrine of the Supervening Cause 1. Concept: that cause which intrudes between the act of the accused and the expected injury of the victim, breaking the connection between the act and the injury, and itself becoming the proximate cause of the injury. It is an outside factor unrelated to the act of the accused. It may be due any of the following: a). The act of the victim, as when he committed suicide b). The act of a third person, as when the man who was stabbed and being rushed to the hospital on board a car, died because the car was rammed by a truck c). An external factor such as (i) in the case of a wounded boy who died due to a breakout of measles (ii) the victim, while being chased, was hit by a falling brick (iii) the application of the wrong medicine by first aiders (iv). an infection which developed 22 days after a hacking wound, not tetanus because the incubation period of severe tetanus is less than 14 days. II. Rule when the Actual Result is Different i.e. the actual result was not intended. The act is still a felony and the accused remains liable. The different injury may be under any of the following juridical situations: A. Aberratio Ictus: (Mistake in the Blow) also known as “Equivocacion en el golpe”. A person who is not the intended victim was also injured by the blow. This is based on the Principle of Transferred Intent i.e the intent behind the act upon a predetermined particular person is transferred or carried over to a third person who was harmed or injured by the same act. Hence two injuries/crimes are committed (i) the crime on the intended victim and (ii) the crime on the unintended victim. The legal consequence is that the two crimes give rise to a complex crime if both are grave or less grave, or are separate crimes if both or one is a slight offense. This is because there are three persons at the crime scene: the accused, the intended victim and the unintended victim. B. Error en personae or mistake in the victim. The actual victim is a different person as the accused mistook him to be the intended victim. There are only two persons at the crime scene: (i) the accused and (ii) the actual victim who turned out to be a different person. The accused will be liable for the actual crime committed but his penalty will be pursuant to Article 49. C. Praeter Intentionem: the harm or injury was inflicted upon the intended victim but is greater than that intended. The legal effect is that the accused will be liable for the crime actually committed but he is entitled to the mitigating circumstance of lack of intent to commit so grave a wrong as that committed, provided there is a great disparity between the means employed and the resulting injury. PROS. ELMER M. SAGSAGO Page 27 2017 CRIMINAL LAW This is illustrated in the case of the accused who boxed the victim, the latter fell down and his head hit the pavement resulting to his death. The accused was held liable for homicide. In Calimutan vs. People ( Feb. 9, 2006) the accused threw a stone at the victim rupturing the spleen and resulting to his death. He was convicted of homicide. On appeal the Court held: ―It can not in good conscience attribute to the accused any malicious intent to injure, mush less to kill, and in the absence of such intent,… the Court finds the accused guilty of reckless imprudence resulting in homicide‖. (Personal view: the decision is not sound). ARTICLE 5. DUTY OF THE COURT 1. The first paragraph embodies the Principle of Legality. Hence the duty of the court, where the act or omission imputed to the accused is not punished by any law, are : (a) to acquit the accused and (b) recommend to the Chief Executive, through the DOJ, that the act done or omission incurred, be the subject of a penal legislation and stating his reasons why. 2. The second paragraph covers a situation where the penalty to be imposed, in view of the circumstances, appears excessive. The court must impose the impossible penalty and then recommend that the accused be granted executive clemency. It should not allow personal views to affect the imposition of the penalty. This is Justice tempered with mercy. a). In Tulfo vs. People (Sept. 16, 2008) the Court, considering the importance of the freedom of the press, found Tulfo guilty of libel but said ― the punishment must still be tempered with justice‖ and the ‖necessity of a free press balanced with the necessity of a responsible press‖ the court imposed merely a fine as penalty instead of imprisonment. ARTICLE 6. STAGES IN THE COMMISSION OF A CRIME I. Introduction: Generation of a Crime A. The first is the Mental Stage General Rule: Mental acts such as thoughts, ideas, opinions and beliefs, are not subject of penal legislations. One may express an idea which is contrary to law, morals or is unconventional, but as long as he does not act on them or induce others to act on them, such mental matters are outside the realm of penal law and the person may not be subjected to criminal prosecution. B. The Second: The External Stage which is where the accused performs acts which are observable. 1). The Preparatory Acts: Acts which may or may not lead to the commission of a concrete crime. Being equivocal they are not as rule punishable except when there is an express provision of law punishing specific preparatory acts. Example: (i) the general rule: buying of a gun, bolo or poison, even if the purpose is to use these to kill a person; so also with conspiracies and proposals. (ii) the exception: possession of picklocks and false keys is punished; as with conspiracies to commit treason, rebellion, sedition and coup d‘etat 2) The Acts of execution: the attempted, frustrated and consumated stages. Their concept is as PROS. ELMER M. SAGSAGO Page 28 2017 CRIMINAL LAW defined under Article 6. II. Application of Article 6: Only to intentional felonies by positive acts known as material crimes i.e. those with at least two stages as opposed to formal crimes or those which are produced and have only the consummated stage, and not to: (i). Felonies by omission (ii) Culpable felonies and (iii) Violations of special laws, unless the special law provides for an attempted or frustrated stage. Examples of the exception are The Dangerous Drugs Law which penalizes an attempt to violate some of its provisions, and The Human Security Act of 2007 III. The attempted stage: “the accused commences the commission of a felony directly by overt acts but does not perform all the acts of execution…. due to some cause or accident other than his own spontaneous desistance” A).(1). The act which the Penal Code punishes as an attempt is that which has a connection to a particular concrete offense, that which is the beginning of the execution of the offense, leading directly to its realization and commission (2) The act must not be equivocal but indicates a clear intention to commit a particular and specific felony. Thus the act of a notorious criminal in following a woman cannot be the attempted stage of any felony. B). Overt or external act is some physical deed or activity, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to is complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. It is overt in the sense that the act is observable by the senses. C). Examples: 1. The accused pressed a chemically -soaked cloth on the mouth of the woman to induce her to sleep, while he lay on top of her and pressed his body to her. The act is not the overt act that will logically and necessarily ripen into rape. They constitute unjust vexation. ( Note: it would be attempted rape if he tried to undress the victim or touch her private parts) ( Balleros vs. People, Feb, 22, 2006) 2. One found inside a house but no article was found on him, is liable for trespass and not for attempted theft or robbery even if he is a notorious robber 3. One found removing the glass window panes or making a hole in the wall is not liable for attempted robbery but for attempted trespass 4. Examples: (a) Attempted theft: one caught while putting his hand inside the bag or pointing a gun at a taxi driver and getting the earnings when caught is attempted robbery (b) firing a gun with intent to kill and missing; stabbing at the victim who evaded and ran away is attempted homicide D) The accused has not yet passed the subjective phase or that phase encompassed from the time an act is executed which begins the commission of the crime until the time of the performance of the last act necessary to produce the crime, but where the accused has still control over his actions and their results.. E).The accused was not able to continue performing the acts to produce the crime. He was prevented by external forces and not because he himself chose not to continue. Such as when his PROS. ELMER M. SAGSAGO Page 29 2017 CRIMINAL LAW weapon was snatched, or his intended victim managed to escape, or he was overpowered or arrested. F). If the accused voluntarily desisted i.e he himself decided not to continue with his criminal purpose, then he is not liable. 1. Reason: This is an absolutory cause by way of reward to those who, having set one foot on the verge of crimes, heed the call of their conscience and return to the path of righteousness. 2. The reason for the desistance is immaterial 3. Exceptions: when the accused is liable despite his desistance a). when the act performed prior to the desistance already constituted the attempted stage of the intended felony. For example: the accused, with intent to kill, shot at the victim but missed after which he ―desisted‖, his acts already constituted attempted homicide b). When the acts performed already gave rise to the intended felony. The decision not to continue is not a legal but factual desistance. As in the case of a thief who returned what he stole. c). When the acts performed constitute a separate offense. Pointing a gun at another and threatening to kill, and then desisting gives rise to grave threats. IV. The Frustrated Stage: the accused has performed all the acts of execution necessary to produce the felony but the crime is not produced by reason of causes independent of the will of the accused. A. The accused has passed the subjective phase and is now in the objective phase, or that portion in the commission of the crime where the accused has performed the last act necessary to produce the intended crime and where he has no more control over the results of his acts. B. The non-production of the crime should not be due to the acts of the accused himself, for if it were he would be liable not for the frustrated stage of the intended crime, but possibly for another offense. Thus: where the accused shot the victim mortally wounding him, but he himself saved the life of his victim, his liability is that for serious physical injuries as the intent to kill is absent. C. Attempted vs. Frustrated Homicide/murder. Where the accused, with intent to kill, injured the victim but the latter did not die, when is the crime attempted or frustrated? 1. First View: ―The subjective phase doctrine”. If at that point where the accused has still control over the results of his actions but is stopped by reason outside of his own desistance and the subjective phase has not been passed, the offense is attempted. 2. Second View: The Mortal Wound or Life Threatening Injury Doctrine: If a mortal wound or life threatening injury had been inflicted, the offense is frustrated, else it is attempted ( Palaganas vs. PP., Sept. 12, 2006). 3. Third View: The belief of the accused should be considered in that if the accused believed he has done all which is necessary to produce death, then it is frustrated. V. Consumated. When all the elements of the crime are present whether it be the intended crime or a different crime. PROS. ELMER M. SAGSAGO Page 30 2017 CRIMINAL LAW VI. Factors to Consider in determining the proper stage. A. The manner of the commission of the crime and how it is defined by the RPC. (i). Some crimes have only the consumated stage (Formal crimes) such as threats, coercion, alarms and scandal, slander, acts of lasciviousness, the political crimes of rebellion, sedition and coup d etat. (ii).In rape the gravamen is whether there is penetration or not, no matter how slight, hence rape is either attempted or consummated. (iii). Some crimes are consummated by mere attempt, such as attempting to flee to an enemy country is already consummated crime of Flight to Enemy country; some by mere proposal as in Corruption of Minors and Abuse of chastity (iv) Impossible crimes and culpable felonies have no stages of execution B. The elements of the felony. 1. Theft: it is consummated once the article is in the material physical possession of the accused, whether actual or constructive. His ability to dispose off the thing his immaterial and does not constitute an element. N.B. Decisions of the CA as to bulky items where the accused must have the opportunity dispose off or appropriate the articles have already been reversed. The doctrine now is that theft has no frustrated stage ( Valenzuela vs. PP. June 21, 2007) 2. Estafa: It is not the material possession but the existence of damage which consumates the crime. 3. Robbery with Force Upon Things: The thing must be brought out of the building to consumate the crime. C. The Nature of the Felony Itself 1. Crimes which require the participation of two persons have no frustrated stage. They are consummated by mere agreement as in corruption of a public official, or when the consensual act is done as in Adultery and concubinage. 2. There are crimes which are punished according to their results and not the intention of the accused such as physical injuries. 3. As to Arson: it is consumated once a part of the building is burned. It has been ruled that if the accused lit certain materials which is applied to the building but no part of the building was burned, the crime is in its frustrated stage and if there was no material which was as yet lit, then arson is still in its attempted. Thus one who places sacks soaked in gasoline near the post and lit it but no part of the building was burned, or one who threw a lighted torch on the roof but the torch rolled down such that no part of the house was burned, was said to have committed frustrated arson. (Personal Opinion: there can be no frustrated stage, but only attempted stage if the fire was not yet applied to the building. But if fire was applied to the building or a part thereof but no part of the building was burned, then it is attempted. The only consideration is whether or not the PROS. ELMER M. SAGSAGO Page 31 2017 CRIMINAL LAW accused succeeded in burning a part of the building. If no part of the building was burned, it is still attempted arson no matter how far gone were the acts of the accused). 4. Example of Felonies with no frustrated stage: a). Arson b). Bribery c). Theft and Robbery with Violence d). Adultery and Concubinage e). Rape f). Corruption of a Public Official g). Falsification of Documents h). political crimes of rebellion, sedition and coup d etat ARTICLE 8: PROPOSAL AND CONSPIRACY I. Concepts: There is proposal when one has decided to commit a felony but proposes its ex