Crim Law Reviwer 1

8/20/2019 Crim Law Reviwer 1

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I. Criminal Law : Definition and SourcesCriminal Law I

I. Criminal Law:Definition and Sources

A. DEFINITION

Criminal law is that branch or division ofmunicipal law which defines crimes, treats oftheir nature and provides for their punishment.

It is that branch of public substantive lawwhich defines offenses and prescribes their

penalties. It is substantive because it defines thestate’s right to inflict punishment and the

liability of the offenders. It is public law because

it deals with the relation of the individual with

the state.

B. STATE AUTHORITY TO PUNISH

CRIME

1. LIMITATIONS

a. Must be general in application.

b. Must not partake of the nature of an expost facto law. (19! "onst. #rt III$

%ec.&&'

c. Must not partake of the nature of a bill of

attainder. (19! "onst. #rt III$ %ec &&'

d. Must not impose cruel and unusual

punishment or excessive fines. (19!"onst. #rt III$ %ec 19'

2. PENOLOGICAL OBJECTIVES

a. Utilitarian t!"r# "r $r"t!%ti&!t!"r#he primary purpose of the punishment

under criminal law is the protection of

society from actual or potential wrongdoers.

he courts$ therefore$ in exacting retribution

for the wronged society$ should direct thepunishment to potential or actualwrongdoers$ since criminal law is directed

against acts and omissions which thesociety does not approve of. "onsistent with

this theory$ the mala prohibita principle

which punishes an offense regardless of

malice or criminal intent$ should not be

utili)ed to apply the full harshness of thespecial law.

In Ma'n" &(. CA) decided on *une &+$199&$ the %upreme "ourt ac,uitted Magno

of violation of -atas ambansa -lg. && whenhe acted without malice. he wrongdoer is

not Magno but the lessor who deposited the

checks. /e should have returned the checks

to Magno when he pulled out the

e,uipment. o convict the accused would

defeat the noble ob0ective of the law and

the law would be tainted with materialism

and opportunism.

*. Cla((i%al "r +,ri(ti% $il"("$#-est remembered by the maxim #n eyefor an eye$ a tooth for a tooth.2 34ote5 If

you want to impress the examiner use the

latin version6 7culo pro oculo$ dente prodente.8

he purpose of penalty is retribution. he

offender is made to suffer for the wrong he

has done. here is scant regard for the

human element of the crime. he law does

not look into why the offender committed

the crime. "apital punishment is a productof this kind of school of thought. Man is

regarded as a moral creature whounderstands right from wrong. %o that when

he commits a wrong$ he must be prepared

to accept the punishment therefore.

%.P"(iti&i(t "r r!ali(ti% $il"("$#he purpose of penalty is reformation.

here is great respect for the human

element because the offender is regarded associally sick who needs treatment$ not

punishment. "ages are like asylums$ 0ailslike hospitals. hey are to segregate the

offenders from the good2 members of

society.

rom this philosophy came the 0ury

system$ where the penalty is imposed on a

case to case basis after examination of the

offender by a panel of social scientists whichdo not include lawyers as the panel would

not want the law to influence theirconsideration.

"rimes are regarded as social phenomena

which constrain a person to do wrong

although not of his own volition. # tendency

towards crime is the product of one’s

environment. here is no such thing as a

natural born killer.

his philosophy is critici)ed as being toolenient.

-. E%l!%ti% "r i/!- $il"("$#his combines both positivist and classical

thinking. "rimes that are economic and

social by nature should be dealt with in a

positivist manner: thus$ the law is more

compassionate. /einous crimes should be

dealt with in a classical manner: thus$

capital punishment.

%ince the ;evised enal "ode wasadopted from the %panish "odigo enal$

which in turn was copied from the rench

"ode of 11< which is classical in character$

it is said that our "ode is also classical. his

is no longer true because with the #merican

occupation of the hilippines$ many

provisions of common law have been

engrafted into our penal laws. he ;evisedenal "ode today follows the mixed or

eclectic philosophy. or example$intoxication of the offender is considered to

mitigate his criminal liability$ unless it is

intentional or habitual: the age of the

offender is considered: and the woman who

killed her child to conceal her dishonor has

in her favor a mitigating circumstance.

C. BASIC PRINCIPLES


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1. =enerality&. erritoriality

>. rospectivity

?. @egality

A. %trict "onstruction of penal laws against

the %tate

1. GENERALITY OF CRIMINAL LA0

=enerality of criminal law means that thecriminal law of the country governs all personswithin the country regardless of their race$

belief$ sex or creed. /owever$ it is sub0ect to

certain exceptions brought about by

international agreement. #mbassadors$ chiefs

of states and other diplomatic officials are

immune from the application of penal laws

when they are in the country where they are

assigned.

4ote that consuls are not diplomaticofficers. his includes consul6general$ vice6consul or and consul in a foreign country$ who

are therefore$ not immune to the operation orapplication of the penal law of the country

where they are assigned.

#lso excepted under the law of generality

are Members of the "ongress who are notliable for libel or slander with any speech in

"ongress or congressional committee. (%ec11$ #rt BI 19! "onstitution'

=enerality has no reference to territory.

Chenever you are asked to explain this$ it

does not include territory. It refers to personsthat may be governed by the penal law.

he generality principle of penal laws is alsosub0ect to the principles of public international

law and to treaty stipulations (#rt. 1? "ivil"ode'. Examples of this would be the B# and;# !A (concerning immunities$ rights andprivileges of duly accredited foreign diplomatic

representatives in the hilippines.

Take note of the Bisiting orces #greement$ #rt. B$which defines "riminal *urisdiction over Dnited %tatesmilitary and civilian personnel temporarily in the

hilippines in connection with activities approved bythe hilippine =overnment

2. TERRITORIALITY OF CRIMINAL LA0

a. G!n!ral r,l!erritoriality means that the penal laws of

the country have force and effect only

within its territory. It cannot penali)e crimes

committed outside the same. his is sub0ect

to certain exceptions brought about byinternational agreements and practice. he

territory of the country is not limited to theland where its sovereignty resides but

includes also its maritime and interior

waters as well as its atmosphere.

errestrial 0urisdiction is the 0urisdiction

exercised over land.

luvial 0urisdiction is the 0urisdictionexercised over maritime and interior waters.

#erial 0urisdiction is the 0urisdictionexercised over the atmosphere.

Excepted under the territoriality

characteristic of penal laws are the cases

provided for by #rt. & of the ;evised enal

"ode. he "ode therefore has territorial and

extraterritorial applications.

*. T! ar%i$!la'i% r,l!he #rchipelagic ;ule states that all

bodies of water comprising the maritime

)one and interior waters abounding different

islands comprising the hilippine

#rchipelago are part of the hilippine

territory regardless of their breadth$ depth$

width or dimension.

7n the fluvial 0urisdiction there is

presently a departure from the acceptedInternational @aw ;ule$ because the

hilippines adopted the #rchipelagic ;ule as

stated above.

In the International @aw ;ule$ when a

strait within a country has a width of more

than + miles$ the center lane in excess of

the > miles on both sides is consideredinternational waters.

%. S%"$! " a$$li%ati"n " t! $r"&i(i"n(" t! r!&i(!- $!nal %"-!he provisions in #rticle & embraces two

scopes of applications5

i. Intraterritorial application

Intraterritorial refers to the application

of the ;evised enal "ode within thehilippine territory.

In the intraterritorial application of the

;evised enal "ode$ #rticle & makes itclear that it does not refer only to the

hilippine archipelago but it also includes

the atmosphere$ interior waters and

maritime )one. %o whenever you use the

word territory$ do not limit this to land

area only.

#s far as 0urisdiction or application ofthe ;evised enal "ode over crimes

committed on maritime )ones or interiorwaters$ the #rchipelagic ;ule shall be

observed. %o the three6mile limit on our

shoreline has been modified by the rule.

#ny crime committed in the interior

waters comprising the hilippine

archipelago shall be sub0ect to our laws

although committed on board a foreign

merchant vessel.

# vessel is considered a hilippine shiponly when it is registered in accordance

with hilippine laws. Dnder international

law$ as long as such vessel is not within

the territorial waters of a foreign country$

hilippine laws shall govern.

ii. Extraterritorial applicationExtraterritorial refers to the application

of the ;evised enal "ode outside the


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Extraterritorial application of the

;evised enal "ode on a crime committed

on board a hilippine ship or airship is not

within the territorial waters or

atmosphere of a foreign country.

7therwise$ it is the foreign country’s

criminal law that will apply.

/owever$ there are two situations

where the foreign country may not applyits criminal law even if a crime was

committed on board a vessel within its

territorial waters and these are5

Chen the crime is committed in a

war vessel of a foreign country$because war vessels are part of the

sovereignty of the country to whosenavel force they belong:

Chen the foreign country in whose

territorial waters the crime was

committed adopts the rench ;ule$which applies only to merchantvessels$ except when the crime

committed affects the nationalsecurity or public order of such

foreign country.

-. Cri!( %"itt!- a*"ar- !r%ant&!((!l( il! in t! t!rrit"rial at!r(" an"t!r %",ntr#hese rules apply only to a foreign

merchant vessel if a crime was committed

aboard that vessel while it was in theterritorial waters of another country. If that

vessel is in the high seas or open seas$

there is no occasion to apply the two rules.If it is not within the 0urisdiction of any

country$ these rules will not apply.

i. he rench ;ule

The French Rule provides that thenationalit of the vessel follows the flagwhich the vessel flies, unless the crimecommitted endangers the nationalsecurit of a foreign countr where thevessel is within !urisdiction in which casesuch foreign countr will never lose

!urisdiction over such vessel.

i i. he English (7r #nglo6%axon 7r

#merican' ;ulehis rule strictly enforces the

territoriality of criminal law. The law ofthe foreign countr where a foreignvessel is within its !urisdiction is strictlapplied, except if the crime affects onlthe internal management of the vessel inwhich case it is sub!ect to the penal lawof the countr where it is registered.

Ce observe the English ;ule. hilippinecourts have no 0urisdiction over offenses

committed on board foreign warships interritorial waters.

!. THREE INTERNATIONAL THEORIESON AERIAL JURISDICTION

i ree Fone heory

The atmosphere over the countr isfree and not sub!ect to the !urisdiction ofthe sub!acent state, except for the

protection of its national securit and public order.

Dnder this theory$ if a crime is

committed on board a foreign aircraft at

the atmosphere of a country$ the law ofthat country does not govern unless the

crime affects the national security.

ii. ;elative heory

The sub!acent state exercises !urisdiction over the atmosphere onl tothe extent that it can effectivel exercisecontrol thereof.

Dnder this theory$ if a crime was

committed on an aircraft that is alreadybeyond the control of the sub0acent state$

the criminal law of the state will not

govern anmore. -ut if the crime iscommitted in an aircraft within the

atmosphere over a sub0acent state that

exercises control$ then its criminal law will

govern.

iii. #bsolute heory

#dopted by the hilippines

The sub0acent state has complete !urisdiction over the atmosphere above itsub!ect onl to the innocent passage baircraft of a foreign countr.

Dnder this theory$ if the crime is

committed in an aircraft$ no matter howhigh$ as long as it can be established thatit is within the hilippine atmosphere$hilippine criminal law will govern.

. 0!n $,*li% "i%!r( "r !$l"#!!(%"it an "!n(! in t! !/!r%i(! "t!ir ,n%ti"n(he most common sub0ect of bar

problems in #rticle & is paragraph ?5 Chile

being public officers or employees$ 3they8

should commit an offense in the exercise of

their functions52

#s a general rule$ the ;evised enal "odegoverns only when the crime committed

pertains to the exercise of the public

official’s functions$ those having to do with

the discharge of their duties in a foreign

country. he functions contemplated are

those$ which are$ under the law$ to be

performed by the public officer in the

oreign %ervice of the hilippinegovernment in a foreign country.

Exception" The Revised #enal Codegoverns if the crime was committed withinthe hilippine Embass or within theembass grounds in a foreign countr. Thisis because embass grounds are consideredan extension of sovereignt .

Illustration5

$ #hilippine consulate official who is


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and who marries again in a foreigncountr cannot be prosecuted here forbigam because this is a crime notconnected with his official duties.%owever, if the second marriage wascelebrated within the #hilippineembass, he ma be prosecuted here,since it is as if he contracted the

marriage here in the #hilippines.

3. PROSPECTIVITY OF CRIMINAL LA0

his is also called irretrospectivity.

#cts or omissions will only be sub0ect to a

penal law if they are committed after a penal

law had already taken effect. Bice versa$ this

act or omission which has been committed

before the effectivity of a penal law could notbe penali)ed by such penal law because penal

laws operate only prospectively.

In some textbooks$ an exemption is said

to exist when the penal law is favorable to theoffender$ in which case it would have

retroactive application (;" #rt. &&': provided

that the offender is not a habitual delin,uent

and there is no provision in the law against its

retroactive application.

his is consistent with the generalprinciple that criminal laws$ being a limitation

on the rights of the people$ should beconstrued strictly against the %tate and

liberally in favor of the accused.

he exception where a penal law may be

given retroactive application is true only with

a repealing law. If it is an original penal law$that exception can never operate. Chat is

contemplated by the exception is that there isan original law and there is a repealing law

repealing the original law. It is the repealinglaw that may be given retroactive application

to those who violated the original law$ if the

repealing penal law is more favorable to the

offender who violated the original law. If there

is only one penal law$ it can never be given

retroactive effect.

;ule of prospectivity also applies to

administrative rulings and circulars. In C" &(.CA 415536) it was held that the principle ofprospectivity of statutes also applies toadministrative rulings and circulars. In this

case$ "ircular 4o. ? of the Ministry of *ustice$

dated Gecember$ 1A$ 191$ provides that

where the check is issued as part of an

arrangement to guarantee or secure the

payment of an obligation$ whether pre6

existing or not$ the drawer is not criminally

liable for either estafa or violation of - &&.2%ubse,uently$ the administrative

interpretation was reversed in "ircular 4o. 1&$issued on #ugust $ 19?$ such that the claim

that the check was issued as a guarantee or

part of an arrangement to secure an obligation

or to facilitate collection$ is no longer a valid

defense for the prosecution of - &&. /ence$ it

was ruled in 7,! &(. P!"$l! that under the

new "ircular$ a check issued merely toguarantee the performance of an obligation iscovered by - &&. /owever$ consistent with

should not apply to parties who had relied onthe old "ircular and acted on the faith thereof.

4o retrospective effect.

8. LEGALITY 4NULLUM CRIMEN NULLAPOENA SINE LEGE6

here is no crime when there is no law

punishing the same. his is true to civil lawcountries$ but not to common law countries.

-ecause of this maxim$ there is no

common law crime in the hilippines. 4o

matter how wrongful$ evil or bad act is$ if

there is no law defining the act$ the same is

not considered a crime.

"ommon law crimes are wrongful acts

which the communityH society condemns as

contemptible$ even though there is no lawdeclaring the act criminal.

4ot any law punishing an act or omission

may be valid as a criminal law. If the law

punishing an act is ambiguous$ it is null andvoid.

9. STRICT CONSTRUCTION OF PENAL LA0SAGAINST STATE: THE ;DOCTRINE OFPRO REO<

Chenever a penal law is to be construedor applied and the law admits of two

interpretations 6 one lenient to the offenderand one strict to the offender6 that

interpretation which is lenient or favorable to

the offender will be adopted.

his is in consonance with the

fundamental rule that all doubts shall beconstrued in favor of the accused and

consistent with the presumption of innocenceof the accused. his is peculiar only to criminal

law.

D. BASIC MA=IMS IN CRIMINAL LA0

1. ACTUS NON FACIT REUM) NISI MENSSIT REA

The act cannot be criminal where themind is not criminal. his is true to a felonycharacteri)ed by dolo$ but not a felony

resulting from culpa. his maxim is not an

absolute one because it is not applied toculpable felonies$ or those that result from

negligence.

2. ACTUS ME INVITO FACTUS NON ESTMEUS ACTUS

$n act done b me against m will is notm act. his is related to the preceding maximand is manifested in eople vs #h "hong.

3. EL 7UE ES CAUSA DE LA CAUSA ESCAUSA DEL MAL CAUSADO

%e who is the cause of the cause is the

cause of the evil caused. his is the rationalein par. 1 of #rticle ? which enunciates the

doctrine of proximate cause. /e who commitsan intentional felony is responsible for all the


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conse,uences which may naturally andlogically result therefrom$ whether foreseen or

intended or not.

II. De(elo)ment of CriminalLaw in t*e P*ili))ines

A. CODE OF MARAGTAS

If you will be asked about the development

of criminal law in the hilippines$ do not start

with the ;evised enal "ode. he penal

provisions of the Maragtas "ode were allegedly

written and compiled by Gatu %umakwel in

1&A


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slept in "ongress. It was never enacted into law.#mong those who participated in drafting the

"ode of "rimes was *udge =uellermo =uevarra.

%ince that "ode of "rimes was never

enacted as law$ he enacted his own code of

crimes. -ut it was the "ode of "rimes that was

presented in the -atasan as "abinet -ill 4o. &.

-ecause the "ode of "rimes prepared by=uevarra was more of a moral code than a penal

code$ there were several oppositions against thecode.

G. PROPOSED PENAL CODE OF THEPHILIPPINES

hrough #ssemblyman Estelito Mendo)a$

the D @aw "enter formed a committee which

drafted the enal "ode of the hilippines. hisenal "ode was substituted as "abinet -ill 4o. &

and this has been discussed in the floor of the-atasang ambansa. %o the "ode of "rimes now

in "ongress was not the "ode of "rimes duringthe time of resident ;oxas. his is a different

one. "abinet -ill 4o. & is the enal "ode of the

hilippines drafted by a code committee chosen

by the D @aw "enter$ one of them was

rofessor 7rtega. here were seven members of

the code committee. It would have been enacted

into law if not for the dissolution of the -atasang

ambansa. he "ongress was planning to reviveit so that it can be enacted into law.

H. SPECIAL LA0S

Guring Martial @aw$ there are many

residential Gecrees issued aside from the

special laws passed by the hilippine @egislature"ommission. #ll these special laws which are

penal in character$ are part of our enal "ode.

III. ,elonies

A. FELONIES) OFFENSE)MISDEMEANOR AND CRIME

1. FELONY

he term felony is limited only to violations

of the ;evised enal "ode. Chen the crime ispunishable under a special law you do not

refer to this as a felony$ it is to be understood

as referring to crimes under the ;evised enal

"ode.

his is important because there are certain

provisions in the ;evised enal "ode where

the term felony2 is used$ which means thatthe provision is not extended to crimes under

special laws. # specific instance is found in

$rticle &'() *uasi)Recidivism, which reads" $ person who shall commit a

felon after having been convictedb final !udgment, beforebeginning to serve sentence orwhile serving the same, shall be

punished under the maximum period of the penalt.

4ote that the word felony2 is used.

2. OFFENSE

# crime punished under a special law is

called a statutory offense.

3. MISDEMEANOR

# minor infraction of the law$ such as a

violation of an ordinance$ is referred to as amisdemeanor.

8. CRIME

Chether the wrongdoing is punished under

the ;evised enal "ode or under a special law$

the generic word crime can be used.

B. FELONIES: HO0 COMMITTED

1. ELEMENTS OF FELONIES

a. here must be an act or omissionb. hat the act or omission must be

punishable by the ;"

c. hat the act is performed or the

commission incurred by means of dolo or

culpa

o be considered as a felony$ there must bean act or omission: a mere imagination no

matter how wrong does not amount to afelony. #n act refers to any kind of body

movement that produces change in the

outside world. or example$ if #$ a passenger

of a 0eepney seated in front of a lady$ started

putting out his tongue suggesting lewdness$

that is already an act in contemplation of

criminal law. /e cannot claim that there was

no crime committed. If # scratchessomething$ this is already an act which annoys


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the lady he may be accused of un0ustvexation$ not malicious mischief. 7n the other

hand$ omission is the failure to perform a duty

re,uired by law. Examples of such are failure

to render assistance$ failure to issue receipt or

non disclosure of knowledge of conspiracy

against the government.

/owever$ it does not mean that if an act oromission is punished under the ;evised enal

"ode$ a felony is already committed. o beconsidered a felony$ it must also be done with

dolo or culpa.

2. DOLO

Dnder #rticle >$ there is dolo when there is

deceit. his is no longer true. #t the time the

;evised enal "ode was codified$ the termnearest to dolo was deceit. /owever$ deceit

means fraud$ and this is not the meaning ofdolo.

Golo is deliberate intent otherwise referredto as criminal intent$ and must be coupled

with freedom of action and intelligence on the

part of the offender as to the act done by him.

a. El!!nt(he term$ therefore$ has three re,uisites

on the part of the offender5

i. "riminal intent:ii. reedom of action: and

iii. Intelligence

If any of these is absent$ there is no dolo.

If there is no dolo$ there could be no

intentional felony 4Vi(*al &(. B,*an)2@@36.

*. Pr!(,$ti"n Criinal Int!nt%ince intent is a mental state$ the

existence of which is shown by the overt act

of a person$ so criminal intent is presumed

to exist only if the act is unlawful. It does

not apply if the act is not criminal. he

presumption of criminal intent may arise

from proof of the criminal act and it is for

the accused to rebut this presumption.

/owever$ in some crimes intent cannot bepresumed being an integral element

thereof: so it has to be proven (i.e. infrustrated homicide$ specific intent to kill is

not presumed but must be proven$

otherwise it is merely physical in0uries'.

%. Cat!'"ri!( " Int!ntIn criminal law$ intent is categori)ed into

two5

i. =eneral "riminal Intent

+eneral criminal intent is presumedfrom the mere doing of a wrong act. hisdoes not re,uire proof. he burden is

upon the wrong doer to prove that he

acted without such criminal intent.

ii. %pecific "riminal Intent

pecific criminal intent is not presumed

because it is an ingredient or element ofa crime, like intent to kill in the crimesattempted or frustrated homicideH

parricideH murder. he prosecution hasthe burden of proving the same.

-. Di(tin%ti"n B!t!!n Int!nt an-Di(%!rn!ntIntent is the determination to do a certain

thing, an aim or purpose of the mind. It isthe design to resolve or determination by

which a person acts.

7n the other hand$ discernment is themental capacit to tell right from wrong. Itrelates to the moral significance that a

person ascribes to his act and relates to the

intelligence as an element of dolo$ distinct

from intent.

!. Di(tin%ti"n B!t!!n Int!nt an-M"ti&!Intent is demonstrated by the use of a

particular means to bring about a desiredresult6 it is not a state of mind or a reason

for committing a crime.

7n the other hand$ motive implies

motion. It is the moving power which impels

one to do an act. Chen there is motive in

the commission of a crime$ it always comes

before the intent. -ut a crime may becommitted without motive.

Motive$ unlike intent$ is not an element of

a crime. # man can be convicted with orwithout motive$ or with good or bad motive.

It is important only when the identity of the

culprit is in doubt and not when he is

positively identified by a credible witness.

#lso$ lack of motive can aid in showing the

innocence of the accused. (eople vs/assan$ 19'

If the crime is intentional$ it cannot be

committed without intent. Intent ismanifested by the instrument used by the

offender. he specific criminal intent

becomes material if the crime is to be

distinguished form the attempted or

frustrated stage. or example$ a husband

came home and found his wife in a pleasant

conversation with a former suitor.

hereupon$ he got a knife. he moving forceis 0ealousy. he intent to resort to the knife$

so that means he desires to kill the formersuitor.

Even if the offender states that he had no

reason to kill the victim$ this is not criminal

intent. "riminal intent is the means resorted

to by him that brought about the killing. If

we e,uate intent as a state of mind$ many

would escape criminal liability.

In a case where mother and son wereliving in the same house$ and the son got

angry and strangled his mother$ the son$

when prosecuted for parricide$ raised the

defense that he had no intent to kill his

mother. It was held that criminal intent

applies on the strangulation of the vital part

of the body. "riminal intent is on the basisof the act$ not on the basis of what theoffender says.


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-ook into motive to determine the propercrime which can be imputed to the accused.

If a 0udge was killed$ determine if the

killing has any relation to the official

functions of the 0udge in which case the

crime would be direct assault complexed

with murderH homicide$ not the other way

around. If it has no relation$ the crime is

simply homicide or murder.

. M!n( R!ahe technical term mens rea is sometimes

referred to in common parlance as the

gravamen of the offense. To a laman, thatis what ou call the bullsee/ of the crime.This term is used snonmousl withcriminal or deliberate intent, but that is notexactl correct.

Mens rea of the crime depends upon the

elements of the crime. Jou can only detectthe mens rea of a crime by knowing the

particular crime committed. Cithout

reference to a particular crime$ this term ismeaningless. or example$ in theft$ the

mens rea is the taking of property of

another with intent to gain. In falsification$

the mens rea is the effecting of the forgery

with intent to pervert the truth. It is notmerely writing something that is not true:

the intent to pervert the truth must followthe performance of the act.

In criminal law$ we sometimes have to

consider the crime on the basis of intent.

or example$ attempted or frustrated

homicide is distinguished from physical

in0uries only by the intent to kill. #ttempted

rape is distinguished from acts oflasciviousness by the intent to have sexual

intercourse. In robbery$ the mens rea is thetaking of the property of another coupled

with the employment of intimidation orviolence upon persons or things: remove

the employment of force or intimidation and

it is not robbery any longer.

'. Mi(ta! " Fa%tChen an offender acted out of a

misapprehension of fact$ it cannot be said

that he acted with criminal intent. hus$ incriminal law$ there is a mistake of fact.2

Chen the offender acted out of a mistake offact$ criminal intent is negated$ so do not

presume that the act was done with criminal

intent. his is absolutory if the crime

involved dolo.

Mistake of fact would be relevant only

when the felony would have been

intentional or through dolo$ but not whenthe felony is a result of culpa. Chen the

felony is a product of culpa$ do not discussmistake of fact. Chen the felonious act is

the product of dolo and the accused claimed

to have acted out of mistake of fact$ there

should be no culpa in determining the real

facts$ otherwise$ he is still criminally liable$

although he acted out of a mistake of fact.

Mistake of fact is only a defense inintentional felony but never in culpablefelony.

he re,uisites of mistake of fact are5

i. hat the act done would have been

lawful had the facts been as the

accused believed them to be:

ii. hat the intention of the accused in

performing the act should be lawful:

iii. hat the mistake must be without fault

or carelessness on the part of theaccused. Chen the accused is

negligent$ mistake of fact is not adefense. (eople vs 7anis$ 19'.

3. CULPA

#lthough there is no intentional felony$

there could be culpable felony.

Dnder #rticle >$ it is clear that culpa is 0usta modality by which a felony may be

committed. # felony may be committed orincurred through dolo or culpa. "ulpa is 0ust a

means by which a felony may result.

In #rticle >+A$ you have criminal negligence

as an omission which the article definitely or

specifically penali)ed. he concept of criminal

negligence is the inexcusable lack of

precaution on the part of the personperforming or failing to perform an act. If the

danger impending from that situation is clearlymanifest$ you have a case of reckless

imprudence. -ut if the danger that wouldresult from such imprudence is not clear$ not

manifest nor immediate$ you have only a case

of simple negligence. #lso$ if you were the one

who put yourself in a situation wherein danger

would most likely happen (e.g. drunk driving'$

this is reckless imprudence. /owever$ if thereis some contributory negligence on the part of

the victim (while driving you hit a person whowas 0aywalking'$ this may be a case of simple

negligence.-ecause of #rticle >+A$ one mightthink that criminal negligence is the one being

punished. hat is why a ,uestion is created

that criminal negligence is the crime in itself.

In P!"$l! &(. Fall!r$ it was statedindirectly that criminal negligence or culpa is

0ust a mode of incurring criminal liability. In

this case$ the accused was charged withmalicious mischief. Malicious mischief is an

intentional negligence under #rticle >&! of the;evised enal "ode. he provision expressly

re,uires that there be a deliberate damaging

of property of another$ which does not

constitute destructive arson. Jou do not have

malicious mischief through simple negligence

or reckless imprudence because it re,uires

deliberateness. aller was charged with

malicious mischief$ but was convicted ofdamage to property through reckless

imprudence. he %upreme "ourt pointed outthat although the allegation in the information

charged the accused with an intentional

felony$ yet the words feloniously and

unlawfully$ which are standard languages in

an information$ covers not only dolo but also

culpa because culpa is 0ust a mode of

committing a felony.

In 7,!"n &(. J,(ti%! " t! P!a%!$


9/97


that criminal negligence is a ,uasi6offense$and the correct designation should not be

homicide through reckless imprudence$ but

reckless imprudence resulting in homicide.

he view of *ustice ;eyes is sound$ but the

problem is #rticle >$ which states that culpa is

0ust a mode by which a felony may result.

a. El!!nt("ulpa re,uires the concurrence of three

re,uisites5i. criminal negligence on the part of the

offender$ that is$ the crime was the

result of negligence$ reckless

imprudence$ lack of foresight or lack of

skill:

ii. freedom of action on the part of the

offender$ that is$ he was not acting

under duress: andiii. intelligence on the part of the offender

in the performance of the negligent act.

*. Di(tin',i(!- Fr" D"l"

-etween dolo and culpa$ the distinctionlies on the criminal intent and criminal

negligence.

%. Di(tin%ti"n B!t!!n N!'li'!n%! An-I$r,-!n%!In negligence$ there is deficienc of

action. In imprudence$ there is deficiencof perception.

-. D"%trin!( C"n%!rnin' C,l$a*l!Cri!(

i. Emergency ;ule

# person who is confronted with a

sudden emergency may be left no time

for thought$ must make speedy decisionbased largely upon impulse or instinct$

and cannot be held to the same conductas one who has had an opportunity to

reflect$ even though it later appears thathe made the wrong decision.

he emergency doctrine is applicable

only where the situation which arises to

confront the actor is sudden and

unexpected$ and is such as to deprive him

of all the opportunity for deliberation.

ii. Goctrine 7f @ast "lear "hance2

he contributory negligence of theparty in0ured will not defeat the action if it

be shown that the accused might$ by the

exercise of reasonable care and prudence$

have avoided the conse,uences of the

negligence of the in0ured party.

iii. ;ule 7f 4egative Ingredient

his is related to the doctrine ofproximate cause and applicable when

certain causes leading to the result arenot identifiable.

his rule states that the prosecution

must first identify what the accused failed

to do. 7nce this is done$ the burden of

evidence shifts to the accused. he

accused must show that the failure didnot set in motion the chain of eventsleading to the in0ury. ("arillo vs eople$

C. CRIMES DEFINED AND PENALIEDBY SPECIAL LA0S

1. CRIMES MALA IN SE AND MALAPROHIBITA

Biolations of the ;evised enal "ode arereferred to as malum in se$ which literallymeans$ that the act is inherently evil or bad or

per se wrongful. 7n the other hand$ violationsof special laws are generally referred to as

malum prohibitum.

4ote$ however$ that not all violations of

special laws are mala prohibita. Chile

intentional felonies are always mala in se$ it

does not follow that prohibited acts done in

violation of special laws are always malaprohibita. Even if the crime is punished under

a special law$ if the act punished is one whichis inherently wrong$ the same is malum in se$

and$ therefore$ good faith and the lack ofcriminal intent is a valid defense: unless it is

the product of criminal negligence or culpa.

@ikewise when the special laws re,uire that

the punished act be committed knowingly and

willfully$ criminal intent is re,uired to be

proved before criminal liability may arise.

or example$ residential Gecree 4o. A>&

punishes piracy in hilippine waters and thespecial law punishing brigandage in the

highways. hese acts are inherently wrong

and although they are punished under special

laws$ the act themselves are mala in se: thus

good faith or lack of criminal intent is a

defense.

2. TEST TO DETERMINE IF VIOLATION OFSPECIAL LA0 IS MALUM PROHIBITUMOR MALUM IN SE

#naly)e the violation5 Is it wrong because

there is a law prohibiting it or punishing it as

suchK If you remove the law$ will the act still

be wrongK

If the working of the law punishing the

crime uses the word willfully$2 then malicemust be proven. Chere malice is a factor$

good faith is a defense.

In violation of special law$ the act

constituting the crime is a prohibited act.

herefore$ culpa is not a basis of liability$

unless the special law punishes an omission.

Chen given a problem$ take note if the

crime is a violation of the ;evised enal "odeor a special law.

3. DISTINCTION BET0EEN CRIMESPUNISHED UNDER THE REVISED PENALCODE AND CRIMES PUNISHED UNDERSPECIAL LA0S

a. A( T" M"ral Trait O T! O!n-!rIn crimes punished under the ;evised

enal "ode$ the moral trait of the offenderis considered his is why liability would


10/97


only arise when there is dolo or culpa in thecommission of the punishable act.

In crimes punished under special laws$

the moral trait of the offender is not

considered: it is enough that the prohibited

act was voluntarily done.

*. A( T" U(! O G""- Fait A( D!!n(!In crimes punished under the ;evised

enal "ode$ good faith or lack of criminalintent is a valid defense: unless the crime is

the result of culpa.


good faith is not a defense.

%. A( T" D!'r!! O A%%"$li(!nt OT! Cri!In crimes punished under the ;evised

enal "ode$ the degree of accomplishmentof the crime is taken into account in

punishing the offender: thus$ there are

attempted$ frustrated and consummatedstages in the commission of the crime.


the act gives rise to a crime only when it is

consummated: there are no attempted orfrustrated stages$ unless the special law

expressly penali)es a mere attempt orfrustration of the crime.

-. A( T" Miti'atin' An- A''ra&atin'Cir%,(tan%!(In crimes punished under the ;evised

enal "ode$ mitigating and aggravating

circumstances are taken into account since

the moral trait of the offender is considered.

In crimes punished under special laws$mitigating and aggravating circumstances

are not taken into account in imposing thepenalty.

!. A( T" D!'r!! O Parti%i$ati"nIn crimes punished under the ;evised

enal "ode$ when there is more than one

offender$ the degree of participation of each

in the commission of the crime is taken into

account in imposing the penalty: thus$offenders are classified as principal$

accomplice and accessory.


the degree of participation of the offenders

is not considered. #ll who perpetrated the

prohibited act are penali)ed to the same

extent. here is no principal or accessory to

consider.

8. RELATION OF RPC TO SPECIAL LA0S:SUPPLETORY APPLICATION OF RPC

7ffenses punishable under special laws are

not sub0ect to the provisions of the ;". he

;" shall be supplementary to special laws$

unless the latter should specially provide the

contrary ( $rt. &(, R#C '

#rticle 1< is the conse,uence of the legalre,uirement that you have to distinguish

under the ;evised enal "ode. Cith regard to#rticle 1


11/97


crime of cattle6rustling is not a malaprohibitum but a modification of the crime of

theft of large cattle. %o residential Gecree

4o. A>>$ punishing cattle6rustling$ is not a

special law. It can absorb the crime of

murder. If in the course of cattle rustling$

murder was committed$ the offender cannot

be prosecuted for murder. Murder would be a

,ualifying circumstance in the crime of,ualified cattle rustling. his was the ruling in

P!"$l! &(. Martina-a.

he amendments of residential Gecree 4o.

+?&A (he Gangerous Grugs #ct of 19!&' by

;epublic #ct 47. !+A9$ which adopted the

scale of penalties in the ;evised enal "ode$

means that mitigating and aggravating

circumstances can now be considered in

imposing penalties. residential Gecree 4o.+?&A does not expressly prohibit the

suppletory application of the ;evised enal"ode. he stages of the commission of

felonies will also apply since suppletory

application is now allowed.

or cases of Illegal possession of firearms$

P!"$l! &. Si"n held that althoughresidential Gecree 4o. 1++ is a special law$

the penalties therein were taken from the;evised enal "ode$ hence the rules in said

"ode for graduating by degrees ordetermining the proper period should be

applied.

D. PUNISHABLE CONDUCT

1. Crongful act different from that intended

&. 7mission

>. roposal and "onspiracy

?. #ttemptA. rustration

+. "onsummation

1. 0RONGFUL ACT DIFFERENT FROM THATINTENDED

"riminal liability under part.1 #rticle is

incurred only when these two re,uisites are

present5 first$ the accused must be

committing a crime and that crime must be a

felony: second$ there must be no supervening

event strong enough to destroy the causal linkbetween the offender’s act and the resulting

harm.

here are three situations contemplated

under paragraph 1 of #rticle ?5

• #berratio ictus or mistake in blow thereby

hitting a different or another victim:

• Error in personae or mistake in identity of

the victim:

• raeter intentionem or where the

conse,uence exceeded the intention (in

here the accused is liable for the crimescommitted but he may invoke the

mitigating circumstance that he did not

intend to commit so grave a wrong under

#rt. 1>$ par >'.

2. OMISSION

7mission is the inaction$ the failure tof iti d t hi h h i b d t

do. here must be a law re,uiring the doing orperforming of an act.

3. PROPOSAL AND CONSPIRACY 4INFRA6

8. ATTEMPT 4INFRA6

9. FRUSTRATION 4INFRA6

. CONSUMMATION 4INFRA6

E. CLASSIFICATION OF FELONIES

his ,uestion was asked in the bar

examination5 /ow do you classify felonies and

how are felonies classifiedK

Chat the examiner had in mind was #rticles >$

+ and 9. Go not write the classification offelonies under -ook & of the ;evised enal "ode.

hat was not what the examiner had in mindbecause the ,uestion does not re,uire the

candidate to classify but also to define.herefore$ the examiner was after the

classifications under #rticles >$ + and 9.

elonies are classified as follows5

1. #ccording to the manner of their commission

&. #ccording to the stages of their execution>. #ccording to their gravity

1. ACCORDING TO THE MANNER OF THEIRCOMMISSION

Dnder #rticle >$ they are classified as5

a. intentional felonies or those committed

with deliberate intent: and

b. culpable felonies or those resulting from

negligence$ reckless imprudence$ lack offoresight or lack of skill.

2. ACCORDING TO THE STAGES OF THEIRE=ECUTIONDnder #rticle +$ felonies are classified as5

a. attempted felony when the offender

commences the commission of a felony

directly by overt acts$ and does not

perform all the acts of execution which

should produce the felony by reason of

some cause or accident other than his

own spontaneous desistance:b. frustrated felony when the offender

commences the commission of a felony

as a conse,uence but which wouldproduce the felony as a conse,uence but

which nevertheless do not produce the

felony by reason of causes independent

of the will of the perpetrator: and

c. consummated felony when all the

elements necessary for its execution are

present.

he classification of stages of a felony in#rticle + are true only to crimes under the

;evised enal "ode. his does not apply to

crimes punished under special laws. -ut even

certain crimes which are punished under the

;evised enal "ode do not admit of these

stages.

he purpose of classifying penalties is tobring about a proportionate penalty and


12/97


e,uitable punishment. he penalties aregraduated according to their degree of

severity. he stages may not apply to all kinds

of felonies. here are felonies which do not

admit of division.

a. F"ral Cri!(ormal crimes are crimes$ which are

consummated in one instance. or example$in oral defamation$ there is no attempted

oral defamation or frustrated oraldefamation: it is always in the

consummated stage.

%o also$ in illegal exaction under #rticle

&1> is a crime committed when a public

officer who is authori)ed to collect taxes$

licenses or impose for the government$ shall

demand an amount bigger than or differentfrom what the law authori)es him to collect.

Dnder sub6paragraph a of #rticle &1> onillegal exaction$ the law uses the word

demanding.2 Mere demanding of an

amount different from what the lawauthori)es him to collect will already

consummate a crime$ whether the taxpayer

pays the amount being demanded or not.

ayment of the amount being demanded is

not essential to the consummation of thecrime.

*. Att!$t An- Fr,(trati"nhe difference between the attempted

stage and the frustrated stage lies on

whether the offender has performed all the

acts of execution for the accomplishment of

a felony. @iterally$ under the article$ if the

offender has performed all the acts of

execution which should produce the felonyas a conse,uence but the felony was not

reali)ed$ then the crime is already in thefrustrated stage. If the offender has not yet

performed all the acts of executionthere issomething yet to be performedbut he was

not able to perform all the acts of execution

due to some cause or accident other than

his own spontaneous desistance$ then you

have an attempted felony.

Jou will notice that the felony begins

when the offender performs an overt act.4ot any act will mark the beginning of a

felony$ and therefore$ if the act so far beingdone does not begin a felony$ criminal

liability correspondingly does not begin. In

criminal law$ there is such a thing as

preparatory act. hese acts do not give rise

to criminal liability.

$n overt act is that act which if allowed tocontinue its natural course would definitelresult into a felon.

In the attempted stage$ the definition

uses the word directly.2 his is significant.

In the attempted stage$ the acts so far

performed may already be a crime or it may

0ust be an ingredient of another crime. he

word directly2 emphasi)es the re,uirement

that the attempted felony is that which isdirectly linked to the overt act performed bythe offender$ no the felony he has in his

In criminal law$ you are not allowed to

speculate$ not to imagine what crime is

intended$ but apply the provisions of the

law to the facts given.

Chen a person starts entering the

dwelling of another$ that act is already

trespassing. -ut the act of entering is aningredient of robbery with force upon

things. Jou could only hold him liable forattempted robbery when he has already

completed all acts performed by him directly

leading to robbery. he act of entering

alone is not yet indicative of robbery

although that may be what he may have

planned to commit. In law$ the attempted

stage is only that overt act which is directly

linked to the felony intended to becommitted.

In US &(. Naa+a$ the accused wasarrested while he was detaching some of

the wood panels of a store. /e was alreadyable to detach two panels. o a layman$ the

only conclusion that will come to your mind

is that this fellow started to enter the store

to steal something. /e would not be there

0ust to sleep there. -ut in criminal law$ sincethe act of removing the panel indicates only

at most the intention to enter. /e can onlybe prosecuted for trespass. he removal of

the paneling is 0ust an attempt to trespass$not an attempt to rob. #lthough 4ama0a

was prosecuted for attempted robbery$ the

%upreme "ourt held it is only attempted

trespass because that is the crime that can

be directly linked to his act of removing the

wood panel.

here are some acts which areingredients of a certain crime$ but which

are$ by themselves$ already criminaloffenses.

In abduction$ your desire may lead to acts

of lasciviousness. In so far the woman being

carried is concerned$ she may already be

the victim of lascivious acts. he crime is

not attempted abduction but acts of

lasciviousness. Jou only hold him liable foran attempt$ so far as could be reasonably

linked to the overt act done by him. Go notgo far and imagine what you should do.

0esistanceGesistance on the part of the offender

negates criminal liability in the attempted

stage. Gesistance is true only in the

attempted stage of the felony. If under the

definition of the felony$ the act done isalready in the frustrated stage$ no amount

of desistance will negate criminal liability.

he spontaneous desistance of the

offender negates only the attempted stage

but not necessarily all criminal liability. Even

though there was desistance on the part of

the offender$ if the desistance was made

when acts done by him already resulted to afelony$ that offender will still be criminallyliable for the felony brought about his act.


13/97


stage$ but there may be other feloniesconstituting his act.

Illustrations5

$ fired at 1 and 1 was hit on theshoulder. 1ut 12s wound was not mortal.3hat $ then did was to approach 1, andtold 1, 4ow ou are dead, I will kill ou./

1ut $ took pit and kept the revolver andleft. The crime committed is attemptedhomicide and not phsical in!uries,because there was an intention to kill.The desistance was with the second shotand would not affect the first shotbecause the first shot had alread hit 1.The second attempt has nothing to dowith the first.

In another instance, $ has a verseductive neighbor in the person of 1. $had alwas been looking at 1 and hadwanted to possess her but their statuswere not the same. 5ne evening, after $

saw 1 at her house and thought that 1was alread asleep, he entered the houseof 1 through the window to abuse her.%e, however, found out that 1 was nudeso he lost interest and left. Can $ beaccused of attempted rape6 4o, becausethere was desistance, which preventedthe crime from being consummated. Theattempted stage was erased because theoffender desisted after havingcommenced the commission of thefelon.

he attempted felony is erased by

desistance because the offender

spontaneously desisted from pursuing theacts of execution. It does not mean$

however$ that there is no more felonycommitted. /e may be liable for a

consummated felony constituted by his actof trespassing. Chen # entered the house

through the window$ which is not intended

for entrance$ it is always presumed to be

against the will of the owner. If the offender

proceeded to abuse the woman$ but the

latter screamed$ and # went out of the

window again$ he could not be prosecuted

for ,ualified trespass. Gwelling is taken asan aggravating circumstance so he will be

prosecuted for attempted rape aggravatedby dwelling.

In deciding whether a felony is attempted

or frustrated or consummated$ there are

three criteria involved5

i. he manner of committing

the crime:

ii. he elements of thecrime: and

iii. he nature of the crimeitself.

i. Manner 7f "ommitting # "rime

or example$ let us take the crime of

bribery. "an the crime of frustrated

bribery be committedK 4o. (Incidentally$

the common concept of bribery is that itis the act of one who corrupts a publicofficer. #ctually$ bribery is the crime of

the giver is corruption of public official.-ribery is the crime of the public officer

who in consideration of an act having to

do with his official duties would receive

something$ or accept any promise or

present in consideration thereof.'

he confusion arises from the fact that

this crime re,uires two to committhegiver and the receiver. he law called the

crime of the giver as corruption of publicofficial and the receiver as bribery. =iving

the idea that these are independent

crimes$ but actually$ they cannot arise

without the other. /ence$ if only one side

of the crime is present$ only corruption$

you cannot have consummated corruption

without the corresponding consummated

bribery. here cannot be a consummatedbribery without the corresponding

consummated corruption. If you havebribery only$ it is only possible in the

attempted stage. If you have corruption

only$ it is possible only in the attemptedstage. # corruptor gives money to a

public officer for the latter not to

prosecute him. he public officer received

the money but 0ust the same$ arrested

him. /e received the money to haveevidence of corruption. Go not think that

because the corruptor has alreadydelivered the money$ he has already

performed all the acts of execution and$therefore$ the corruption is already

beyond the attempted stage. hat

thinking does away with the concept of

the crime that it re,uires two to commit.

he manner of committing the crime

re,uires the meeting of the mindsbetween the giver and the receiver.

Chen the giver delivers the money to

the supposed receiver$ but there is nomeeting of the minds$ the only act done

by the giver is an attempt. It is not

possible for him to perform all the acts of

execution because in the first place$ the

receiver has no intention of being

corrupted. %imilarly$ when a public

officer demands a consideration by official

duty$ the corruptor turns down thedemand$ there is no bribery.

If the one to whom the demand was

made pretended to give$ but he had

reported the matter to higher authorities$

the money was marked and this was

delivered to the public officer. If the

public officer was arrested$ do not think

that because the public officer already

had the money in his possession$ thecrime is already frustrated bribery$ it is

only attempted bribery. his is becausethe supposed corruptor has no intention

to corrupt. In short$ there is no meeting

of the minds. 7n the other hand$ if there

is a meeting of the minds$ there is

consummated bribery or consummated

corruption. his leaves out the frustrated

stage because of the manner ofcommitting the crime.


14/97


-ut indirect bribery is alwaysconsummated. his is because the

manner of consummating the crime does

not admit of attempt or frustration.

Jou will notice that under the ;evised

enal "ode$ when it takes two to commit

the crime$ there could hardly be a

frustrated stage. or instance$ the crimeof adultery. here is no frustrated

adultery. 7nly attempted orconsummated. his is because it re,uires

the link of two participants. If that link is

there$ the crime is consummated: if such

link is absent$ there is only an attempted

adultery. here is no middle ground when

the link is there and when the link is

absent.

here are instances where an intended

felony could already result from the actsof execution already done. -ecause of

this$ there are felonies where the offender

can only be determined to haveperformed all the acts of execution when

the resulting felony is already

accomplished. Cithout the resulting

felony$ there is no way of determining

whether the offender has alreadyperformed all the acts of execution or not.

It is in such felonies that the frustratedstage does not exist because without the

felony being accomplished$ there is noway of stating that the offender has

already performed all the acts of

execution. #n example of this is the crime

of rape. he essence of the crime is

carnal knowledge. 4o matter what the

offender may do to accomplish apenetration$ if there was no penetration

yet$ it cannot be said that the offenderhas performed all the acts of execution.

Ce can only say that the offender in rapehas performed all the acts of execution

when he has effected a penetration. 7nce

there is penetration already$ no matter

how slight$ the offense is consummated.

or this reason$ rape admits only of the

attempted and consummated stages$ no

frustrated stage. his was the ruling in

the case of P!"$l! &(. Orita.

In rape$ it re,uires the connection ofthe offender and the offended party. 4o

penetration at all$ there is only an

attempted stage. %lightest penetration or

slightest connection$ consummated (the

doctrine in 7rita regarding slight

penetration was modified in P!"$l! &(.Ca$,an which re,uired thepenetration of at least the labia ma0orafor rape to be consummated'. Jou will

notice this from the nature of the crimere,uiring two participants.

his is also true in the crime of arson.

It does not admit of the frustrated stage.

In arson$ the moment any particle of the

premises intended to be burned is

blackened$ that is already an indication

that the premises have begun to burn. Itdoes not re,uire that the entire premisesbe burned to consummate arson. -ecause

been eased out. he reasoning is that onecannot say that the offender$ in the crime

of arson$ has already performed all the

acts of execution which could produce the

destruction of the premises through the

use of fire$ unless a part of the premises

has begun to burn. If it has not begun to

burn$ that means that the offender has

yet to perform all the acts of execution.7n the other hand$ the moment it begins

to burn$ the crime is consummated.#ctually$ the frustrated stage is already

standing on the consummated stage

except that the outcome did not result. #s

far as the stage is concerned$ the

frustrated stage overlaps the

consummated stage.

-ecause of this reasoning by the "ourtof #ppeals in P!"$l! &(. Gar%ia$ the%upreme "ourt followed the analysis thatone cannot say that the offender in the

crime of arson has already performed all

the acts of execution which wouldproduce the arson as a conse,uence$

unless and until a part of the premises

had begun to burn.

In US &(. Val-!) the offender hadtried to burn the premises by gathering

0ute sacks laying these inside the room./e lighted these$ and as soon as the 0ute

sacks began to burn$ he ran away. heoccupants of the room put out the fire.

he court held that what was committed

was frustrated arson.

his case was much the way before the

decision in the case of P!"$l! &(. Gar%iawas handed down and the "ourt of#ppeals ruled that there is no frustratedarson. -ut even then$ the analysis in the

case of US &(. Val-! is correct. his isbecause$ in determining whether the

felony is attempted$ frustrated or

consummated$ the court does not only

consider the definition under #rticle + of

the ;evised enal "ode$ or the stages of

execution of the felony. Chen the

offender has already passed the

sub0ective stage of the felony$ it isbeyond the attempted stage. It is already

on the consummated or frustrated stagedepending on whether a felony resulted.

If the felony did not result$ frustrated.

he attempted stage is said to be

within the sub0ective phase of execution

of a felony. 7n the sub0ective phase$ it is

that point in time when the offender

begins the commission of an overt actuntil that point where he loses control of

the commission of the crime already. Ifhe has reached that point where he can

no longer control the ensuing

conse,uence$ the crime has already

passed the sub0ective phase and$

therefore$ it is no longer attempted. he

moment the execution of the crime has

already gone to that point where thefelony should follow as a conse,uence$ itis either already frustrated or


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follow as a conse,uence$ it is alreadyfrustrated. If the felony follows as a

conse,uence$ it is consummated.

he trouble is that$ in the 0urisprudence

recogni)ing the ob0ective phase and the

sub0ective phase$ the %upreme "ourt

considered not only the acts of the

offender$ but also his belief. hatalthough the offender may not have done

the act to bring about the felony as aconse,uence$ if he could have continued

committing those acts but he himself did

not proceed because he believed that he

had done enough to consummate the

crime$ %upreme "ourt said the sub0ective

phase has passed. his was applied in the

case of US &(. Val-!$ where theoffender$ having already put kerosene on 0ute sacks$ lighted the same$ he had no

reason not to believe that the fire wouldspread$ so he ran away. hat act

demonstrated that in his mind$ he

believed that he has performed all theacts of execution and that it is only a

matter of time that the premises will

burn. he fact that the occupant of the

other room came out and put out the fire

is a cause independent of the will of theperpetrator.

he ruling in the case of US &(. Val-!is still correct. -ut in the case of P!"$l!&(. Gar%ia$ the situation is different./ere$ the offender who put the torch over

the house of the offended party$ the

house being a nipa hut$ the torch which

was lighted could easily burn the roof of

the nipa hut. -ut the torch burned out.

In that case$ you cannot say that theoffender believed that he had performed

all the acts of execution. here was noteven a single burn of any instrument or

agency of the crime.

he analysis made by the "ourt of

#ppeals is still correct5 that they could not

demonstrate a situation where the


execution to bring about the crime ofarson and the situation where he has not

yet performed all the acts of execution.he weight of authority is that the crime

of arson cannot be committed in the

frustrated stage. he reason is because

we can hardly determine whether the


execution that would result in arson$ as a

conse,uence$ unless a part of the

premises has started to burn. 7n theother hand$ the moment a particle or a

molecule of the premises has blackened$in law$ arson is consummated. his is

because consummated arson does not

re,uire that the whole of the premises be

burned. It is enough that any part of the

premises$ no matter how small$ bas

begun to burn.

Chat if the contents of the buildingwere burned but the structure itself was

case of US. V(. G" F"" S,#$ the crime isconsummated arson.

here are also certain crimes that do

not admit of the attempted or frustrated

stage$ like physical in0uries. 7ne of the

known commentators in criminal law has

advanced the view that the crime of

physical in0uries can be committed in the

attempted as well as the frustrated stage./e explained that by going through the

definition of an attempted and afrustrated felony under #rticle +$ if a

person was about to give a fist blow to

another raises his arms$ but before he

could throw a blow$ somebody holds that

arm$ there would be attempted physical

in0uries. he reason for this is because

the offender was not able to perform all

the acts of execution to bring aboutphysical in0uries.

7n the other hand$ he also stated that

the crime of physical in0uries may be

committed in the frustrated stage whenthe offender was able to throw the blow

but somehow$ the offended party was

able to sidestep away from the blow. /e

reasoned out that the crime would be

frustrated because the offender was ableto perform all the acts of execution which

would bring about the felony were it notfor a cause independent of the will of the

perpetrator.

he explanation is academic. Jou will

notice that under the ;evised enal "ode$

the crime of physical in0uries is penali)ed

on the basis of the gravity of the in0uries.

#ctually$ there is no simple crime ofphysical in0uries. Jou have to categori)e

because there are specific articles thatapply whether the physical in0uries are

serious$ less serious or slight. If you sayphysical in0uries$ you do not know which

article to apply. his being so$ you could

not punish the attempted or frustrated

stage because you do not know what

crime of physical in0uries was committed.

ii. Elements 7f he "rime

In the crime of estafa$ the element ofdamage is essential before the crime

could be consummated. If there is nodamage$ even if the offender succeeded

in carting away the personal property

involved$ estafa cannot be considered as

consummated. or the crime of estafa to

be consummated$ there must be

misappropriation already done$ so that

there is damage already suffered by the

offended party. If there is no damage yet$the estafa can only be frustrated or

attempted.

7n the other hand$ if it were a crime of

theft$ damage or intent to cause damage

is not an element of theft. Chat is

necessary only is intent to gain$ not even

gain is important. he mere intent to

derive some profit is enough but thethinking must be complete before a crimeof theft shall be consummated. hat is


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why we made that distinction betweentheft and estafa.

If the personal property was received

by the offender$ this is where you have to

decide whether what was transferred to

the offender is 0uridical possession or

physical possession only. If the offender

did not receive the personal property$ buttook the same from the possession of the

owner without the latter’s consent$ thenthere is no problem. hat cannot be

estafa: this is only theft or none at all.

In estafa$ the offender receives the

property: he does not take it. -ut in

receiving the property$ the recipient may

be committing theft$ not estafa$ if what

was transferred to him was only thephysical or material possession of the

ob0ect. It can only be estafa if what wastransferred to him is not only material or

physical possession but 0uridical

possession as well.

Chen you are discussing estafa$ do not

talk about intent to gain. In the same

manner that when you are discussing the

crime of theft$ do not talk of damage.

he crime of theft is the one commonlygiven under #rticle +. his is so because

the concept of theft under the ;evisedenal "ode differs from the concept of

larceny under #merican common law.

Dnder #merican common law$ the crime

of larceny which is e,uivalent to out crime

of theft here re,uires that the offender

must be able to carry away or transportthe thing being stolen. Cithout that

carrying away$ the larceny cannot beconsummated.

In our concept of theft$ the offender

need not move an inch from where he

was. It is not a matter of carrying away.

It is a matter of whether he has already

ac,uired complete control of the personal

property involved. hat complete control

simply means that the offender has

already supplanted his will from the will ofthe possessor or owner of the personal

property involved$ such that he couldexercise his own control over the thing.

Illustration5

I placed a wallet on a table inside aroom. $ stranger comes inside theroom, gets the wallet and puts it in his

pocket. I suddenl started searchinghim and I found the wallet inside his

pocket. The crime of theft is alreadconsummated because he alreadac7uired complete control of m wallet.This is so true when he removed thewallet from the confines of the table.%e can exercise his will over the walletalread, he can drop this on the floor,etc. 1ut as long as the wallet remains

on the table, the theft is not etconsummated8 there can onl beattempted or frustrated theft. If he has

frustrated. If he is in the act of tringto take the wallet or place it under,attempted.

aking2 in the concept of theft$ simply

means exercising control over the thing.

If instead of the wallet, the man

who entered the room pretended tocarr the table out of the room, and thewallet is there. 3hile taking the tableout of the room, I apprehended him. Itturned out that he is not authori9ed atall and is interested onl in the wallet,not the table. The crime is not etconsummated. It is onl frustratedbecause as far as the table isconcerned, it is the confines of thisroom that is the container. $s long ashe has not taken this table out of thefour walls of this room, the taking isnot complete.

$ man entered a room and found achest on the table. %e opened it andfound some valuables inside. %e tookthe valuables, put them in his pocketand was arrested. In this case, theft isconsummated.

1ut if he does not take thevaluables but lifts the entire chest, andbefore he could leave the room, he wasapprehended, there is frustrated theft.

If the thing is stolen from a compound

or from a room$ as long as the ob0ect has

not been brought out of that room$ or

from the perimeter of the compound$ thecrime is only frustrated. his is the

confusion raised in the case of US &(.Din" compared with P!"$l! &(. E($irit,an- P!"$l! &(. A-i".

In US &(. Din") the accused loadedboxes of rifles on their truck. Chen they

were on their way out of the %outh

/arbor$ they were checked at the

checkpoint$ so they were not able to leave

the compound. It was held that what was

committed was frustrated theft.

In P!"$l! &(. E($irit,) the accusedwere on their way out of the supply house

when they were apprehended by the

military police who found them secreting

some hospital linen. It was held that what

was committed was consummated theft.

he emphasis$ which was erroneously

laid in some commentaries$ is that$ inboth cases$ the offenders were not liable

to pass the checkpoint. -ut why is it thatin one$ it is frustrated and in the other$ it

is consummatedK

In the case of US &(. Din") the boxesof rifle were stocked inside the compound

of the %outh /arbor. #s far as the boxes

of rifle are concerned$ it is the perimeterof the compound that is the container. #slong as they were not able to bring these


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taking is not complete. 7n the otherhand$ in the case of P!"$l! &(. E($irit,)what were taken were hospital linens.

hese were taken from a warehouse.

/ospital linens were taken from the boxes

that were diffused or destroyed and

brought out of the hospital. rom the

moment they took it out of the boxes

where the owner or the possessor hadplaced it$ the control is complete. Jou do

not have to go out of the compound tocomplete the taking or the control.

his is very decisive in the problem

because in most problems given in the

bar$ the offender$ after having taken the

ob0ect out of the container changed his

mind and returned it. Is he criminally

liableK Go not make a mistake by sayingthat there is desistance. If the crime is

one of theft$ the moment he brought itout$ it was consummated. he return of

the thing cannot be desistance because in

criminal law$ desistance is true only in theattempted stage. Jou cannot talk of

desistance anymore when it is already in

the consummated stage. If the offender

has already ac,uired complete control of

what he intended to take$ the fact that hechanged his mind and returned the same

will no longer affect his criminal liability.It will only affect the civil liability of the

crime because he will no longer bere,uired to pay the ob0ect. #s far as the

crime committed is concerned$ the

offender is criminally liable and the crime

is consummated theft.

Illustration5 $ and 1 are neighbors. 5neevening, $ entered the ard of 1 andopened the chicken coop where 1keeps his fighting cocks. %e discoveredthat the fighting cocks were not

phsicall fit for cockfighting so hereturned it. The crime is consummatedtheft. The will of the owner is to keepthe fighting cock inside the chickencoop. 3hen the offender succeeded inbringing the coop, it is clear that hiswill is completel governed orsuperseded the will of the owner tokeep such cock inside the chicken coop.%ence, the crime was alreadconsummated, and beingconsummated, the return of theowner2s propert is not desistanceanmore. The offender is criminallliable but he will not be civill liable buthe will not be civill liable because theob!ect was returned.

Chen the receptacle is locked orsealed$ and the offender broke the same$

in lieu of theft$ the crime is robbery with

force upon things. /owever$ that the

receptacle is locked or sealed has nothing

to do with the stage of the commission of

the crime. It refers only to whether it is

theft or robbery with force upon things.

In the crime of abduction$ the crucial

with lewd designs. he ,uestion is$ shouldthe mathematical distance be a

consideration in determining the liability

of the offenderK In ;egalado’s

commentary he pointed out two case

illustrations which seem to show that

distance is a consideration. In P!"$l! &(.Rair!$ the woman was taken to

another province in an automobile$ thecrime was consummated abduction. In

P!"$l! &(. D! la Cr,) the victim wastaken only &< meters away and the court

ruled that the crime is attempted

abduction. ;egalado suggests that

distance should not be a decisive factor

because in every crime there are other

relevant facts which can be considered

such as those indicative of intent$ the

offender’s capacity to perform the act andthe stages thereof.

iii. 4ature 7f he "rime Itself

In crimes involving the taking of human

lifeparricide$ homicide$ and murderinthe definition of the frustrated stage$ it is

indispensable that the victim be mortally

wounded. Dnder the definition of the

frustrated stage$ to consider the offender

as having performed all the acts ofexecution$ the acts already done by him

must produce or be capable of producinga felony as a conse,uence. he general

rule is that there must be a fatal in0uryinflicted$ because it is only then that

death will follow.

If the wound is not mortal$ the crime is

only attempted. he reason is that the

wound inflicted is not capable of bringingabout the desired felony of parricide$

murder or homicide as a conse,uence: itcannot be said that the offender has

performed all the acts of execution whichwould produce parricide$ homicide or

murder as a result.

#n exception to the general rule is the

so6called sub0ective phase. he %upreme

"ourt has decided cases$ which applied

the sub0ective standard that when the

offender himself believed that he hadperformed all the acts of execution$ even

though no mortal wound was inflicted$ theact is already in the frustrated stage. his

was laid down in the doctrine of P!"$l!&(. S# Pi". /owever$ this case can bedistinguished from its precedents such as

P!"$l! &(. E-,a&! and P!"$l! &(.Da'an. In these cases$ the accusedbelieved that he had performed all the

elements of the crime but there was nodeath$ however$ it is readily distinguished

that the wounds could have resulted in death. In the case of %y io even thoughhe was correctly convicted of attempted

homicide$ the wounds were not in fact not

fatal. /ence$ it was superfluous for the

"ourt to lay down the above6mentioned

dictum because there was no need to

revert to the belief of the accused in lightof the physical evidence.


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wo ways for conspiracy to exist5

• here is an agreement.

• he participants acted in concert or

simultaneously which is indicative of a

meeting of the minds towards acommon criminal goal or criminal

ob0ective. Chen several offenders actin a synchroni)ed. "oordinated

manner$ the fact that their actscomplimented each other is indicative

of the meeting of the minds. here is

an implied agreement.

wo kinds of conspiracy5

• "onspiracy as a crime: and

• "onspiracy as a manner of incurring

criminal liability.

Chen conspiracy itself as a crime$ no

overt act is necessary to bring about the

criminal liability. he mere conspiracy is thecrime itself. his is only true when the law

expressly punishes the mere conspiracy:

otherwise$ the conspiracy does not bringabout the commission of the crime becauseconspiracy is not an overt act but a mere

preparatory act. Treason, rebellion, seditionand coup d2 etat are the onl crimes wherethe conspirac and proposal to committhem are punishable.

Chen the conspiracy is only a basis of

incurring criminal liability$ there must be anovert act done before the co6conspirators

become criminally liable.

Chen the conspiracy itself is a crime$ this

cannot be inferred or deduced because

there is no overt act. #ll that there is is theagreement. 7n the other hand$ if the co6

conspirator or any of them would execute

an overt act$ the crime would no longer be

the conspiracy but the overt act itself.

Illustration5

$, 1, C and 0 came to an agreementto commit rebellion. Their agreement wasto bring about the rebellion on a certaindate. Even if none of them has performedthe act of rebellion, there is alreadcriminal liabilit arising from theconspirac to commit the rebellion. 1ut ifanone of them has committed the overt

act of rebellion, the crime of all is nolonger conspirac but rebellion itself. Thissubsists even though the other co)conspirator does not know that one ofthem had alread done the act ofrebellion.

his legal conse,uence is not true if the

conspiracy is not a crime. If the conspiracy

is only a basis of criminal liability$ none ofthe co6conspirators would be liable$ unless

there is an overt act. %o$ for long as anyoneshall desist before an overt act in

furtherance of the crime was committed$

such a desistance would negate criminal

liability.

Illustration5

Three persons plan to rob a bank.For as long as none of the conspiratorshas committed an overt act, there is nocrime et. 1ut when one of them commitsan overt act, all of them shall be heldliable, unless a co)conspirator was absentfrom the scene of the crime or he showedup, but he tried to prevent the

commission of the crime.

#s a general rule$ if there has been aconspiracy to commit a crime in a particular

place$ anyone who did not appear shall be

presumed to have desisted. he exception

to this is if such person who did not appear

was the mastermind.

Ce have to observe the distinction

between the two because conspiracy as acrime$ must have a clear and convincing

evidence of its existence. Ever crime mustbe proved beyond reasonable doubt.

Chen the conspiracy is 0ust a basis ofincurring criminal liability$ however$ the

same may be deduced or inferred from the

acts of several offenders in carrying out the

commission of the crime. he existence of a

conspiracy may be reasonably inferred fromthe acts of the offenders when such acts

disclose or show a common pursuit of thecriminal ob0ective. his was the ruling in

P!"$l! &(. Pint") 2@8 SCRA 5. #lthough conspiracy is defined as two or

more persons coming to an agreement

regarding the commission of a felony and

deciding to commit it$ the word person2

here should not be understood to re,uire a

meeting of the co6conspirator regarding thecommission of the felony. # conspiracy of

the second kind can be inferred or deducedeven though they have not met as long as

they acted in concert or simultaneously$indicative of a meeting of the minds toward

a common goal or ob0ective.

"onspiracy is a matter of substance which

must be alleged in the information$

otherwise$ the court will not consider the

same.

In P!"$l! &(. La,ri") 2@@ SCRA 85) itwas held that it must be established bypositive and conclusive evidence$ not by

con0ectures or speculations.

In Ta!r &(. CA) 1 SCRA 95@) it washeld that mere knowledge$ ac,uiescence to$

or approval of the act$ without cooperation

at least$ agreement to cooperate$ is not

enough to constitute a conspiracy. heremust be an intentional participation in the

crime with a view to further the commonfelonious ob0ective.

Chen several persons who do not know

each other simultaneously attack the victim$

the act of one is the act of all$ regardless of

the degree of in0ury inflicted by any one of

them. #ll will be liable for the conse,uences.# conspiracy is possible even whenparticipants are not known to each other.


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Go not think that participants are alwaysknown to each other.

Illustrations5

$ thought of having her husbandkilled because the latter was maltreatingher. he hired some persons to kill himand pointed at her husband. The goons

got hold of her husband and startedmauling him. The wife took pit andshouted for them to stop but the goonscontinued. The wife ran awa. The wifewas prosecuted for parricide. 1ut theupreme Court said that there wasdesistance so she is not criminall liable.

$ law student resented the fact thathis brother was killed b $. %e hired 1 tokill $ and offered him #:(,(((.((. %edisclosed to 1 that $ was being arraignedin the Cit %all of ;anila and told him toexecute the plan on following da. In theevening of that same da, the law

student changed his mind so heimmediatel went to the police and toldthem to dispatch police officers to prevent1 from committing the crime.


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#$ -$ and "$ under the influence ofmari0uana$ broke into a house because they

learned that the occu

Crim Law Reviwer 1

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