Criminal Law Reviewer Example

 CRIMINAL LAW – branch of law which defines crimes, treats of their nature and provides for their punishment

Q: Suppose Congress enacted a piece of legislation, and any violation of that law, penalty will be payment of damages, is that criminal law?

Q: Suppose the form of penalty will be confiscation of license, is that criminal law?

Q: How will you define a crime?*what particular act constitutes the crime*what are the elements of the acts

Q: What is criminal procedure?CRIMINAL PROCEDURE – body of rules that enforces or regulates criminal law, provides for the steps in the prosecution and/or conviction of an accused.

Q: Is there any difference between criminal law and criminal procedure?Yes.

Q: What are the differences?CRIMINAL LAWCRIMINAL PROCEDURE*substantive*procedural/remedial*GENERALLY prospective,*prospective, BUT CAN BE applied RETROACTIVEunless favorable to the accused,provided accused is not a habitualdelinquent*only comes from the legislative*can be promulgated by the judiciary

or law-making body; never fromthe executive or judiciary*in favor of the ends of substantial justice

Q: who is a habitual delinquent?A person who within a period of 10 years from the date of his last release or conviction of the crimes of 1) serious or less serious physical injuries, 2) robo, 3)hurto 4)estafa or 5) falsification, he is found guilty of any of said crimes a third time or oftener (Art 62, rpc)

Q: Suppose accused is a HD, will there be prospective or retroactive application of criminal law?

Q: Is criminal law the same as the RPC?Yes

Q: What is a crime?Generic term used to refer to a wrongdoing punished either in RPC or under a special law Q: Who has the power to enact laws?Congress (Legislative)

Q: Is the power of Congress absolute?No. There are limitations. It should not violate the constitution

Q: We call our penal code, the REVISED PENAL CODE, why, which penal code was revised?The Spanish Penal Code

Q: How was it revised?*A committee was formed pursuant to Administrative Order No. 94 by the Department of Justice.*The committee was formed on Oct 18, 1827*The committee was composed of Anacleto Diaz (head); Quintin Paredes; Alex Reyes and Mariano De Joya

Q: How did the revision come about?*the RPC contains provisions of the Spanish penal code, US Penal Code and SC decisions of the Philippines before the creation of the RPC

Q: What are the sources of criminal law?*Revised Penal Code*Special Penal Laws enacted or passed by the Philippine Commission, Philippine Assembly, Philippine Legislature, National Assembly, Batasang Pambansa, Congress of the Philippines *Penal Presidential Decrees issued during Martial Law (only because the President at that time had legislative power, but generally, the Executive branch cannot issue EO or PP that are penal in nature) *Spanish Penal Code

*US Penal Code (we copied the ff crimes from the US Penal Code: estafa, malversation, etc)

Q: Who has the power to define crimes?The State

Q: Why does the State has the power to define crimes?Because of its police power. The right to prosecute and punish crimes is vested in the sovereign power, which is the Filipino people.

Q: When did the RPC took effect?Jan 1, 1932

Q: Why is there a long lapse of time in the effectivity and approval of the RPC?So that PH will be familiarized with the new provisions of the RPC

Q: Who approved the RPC?US President

Q: What are the theories in criminal law?Classical, Positivist, Mixed

CLASSICAL-the objective is retribution- the emphasis is on the crime-consistent with the saying “an eye for an eye, a tooth for a tooth”- man has free will to do or not to do- the criminal liability arises from knowledge and freedom-man is a rational being-example: RA 9372 (Human Security Act of 2007)

POSITIVIST-the objective is reformation-the emphasis is on the criminal-believes that crime is a social phenomenon-sees man as a moral/human being-man by nature is good-man is exposed to environment where man is compelled to do a crime-example: RA 9344 (Juvenile Justice and Welfare Act of 2006)Probation Law of 1976Indeterminate Sentence Law

MIXED-combines the classical and the positivist-applied classical theory for heinous crimes-applies the positivist for economic and social crimes

Q: What do we apply in the Philippines?Mixed. Our system is a little bit of classical and a little bit of positivist. The RPC is classical and recent laws enacted by the legislature are positivist in nature.

Q: What is the degree of proof needed to convict an accused of a criminal charge?Proof beyond reasonable doubt

Q: Is this absolute?No.In the crime of treason, PBRD is not the only requirement. There is a requirement of the 2 witness rule

Q: May a person be convicted by reason of the spirit of the law? No. Only by the language of the law. It should be clear and in case of doubt, it should be favorable to the accused.

June 21, 2011

Q: What are the kinds of repeals?1. Absolute or Express-the effect is decriminalization-the obliteration of a crime-for pending cases, the case shall be dismissed-for those serving sentence, they shall be released because there is no more reason for the accused to serve sentence

2. Partial or Implied-the crime is still punishable, but modified (in terms of penalty) -example: the case of Robin Padilla, PD 1866 was partially repealed by RA 8294, which reduced the sentence for illegal possession of firearms, thus qualifying Robin Padilla for parole

3. Self-repealing-deemed repealed upon the expiration of the date specified by the law -the law dies a natural death-example: RA 1700 (Anti-Subversion Law) and Rent Control Law

Q: What is the general characteristic of criminal law?Criminal Law is binding on all persons who live or sojourn in the Philippine territory, regardless of race, nationality, political affiliation.

Q: Is this rule absolute?

No. The exceptions are: 1. Treaties2. Laws of preferential application

Q: What is the territorial characteristic of criminal law?Only crimes committed within the Philippine territory may be prosecuted before Ph court

Q: What is the rationale behind this?A crime is an offense against the dignity, authority and sovereignty of the Ph territory; and only the state in which the dignity, authority and sovereignty has been offended has the right to punish the offender.

Q: Is the territoriality absolute?No. The exceptions are: 1. Treaties2. Laws of preferential application

Q: Other characteristic of criminal law?Prospective (non retroactivity)Exception: favorable to the accusedException to the exception: accused is a habitual delinquent

Q: Can you give an example of a treaty that is an exception to the generality & territoriality principles of criminal law?VFA

Q: Why is VFA an exception?Generality – because even if the accused sojourn in the Philippines, the accused will not be prosecuted in ph courts Territoriality – because even if the accused committed the crime in the Philippines, the accused will not be prosecuted in ph courts

Q: Who are the parties to VFA?US and PH

Q: who are covered by the VFA?

US military personnelUS civilian personnel connected to the US military operations in the Philippines

Q: Who is a US military personnel?military members of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard

Q: Is the American Red Cross personnel covered by the VFA?Yes. Is he is part of the US personnel

Q: What are the types of jurisdiction in VFA?Exclusive and Concurrent

Q: What do you mean by exclusive & concurrent jurisdiction?Exclusive – exclusive of other courts; vests jurisdiction on one courtConcurrent – both countries have jurisdiction

Q: When is it exclusive?PH have exclusive jurisdiction – crimes punishable under PH laws but not punishable under US laws. US have exclusive jurisdiction – crimes punishable under US laws but not punishable under PH laws.

Q: When is it concurrent?Crimes punishable both under PH and US laws.

Q: But, even if jurisdiction is concurrent, when will PH have primary jurisdiction?*Philippine authorities shall have the primary right to exercise jurisdiction over all offenses*Especially, when it is a threat to the security of the Philippines,a) treasonb)espionagec)sabotage

EXCEPT:*crime committed by a US personnel against the property and security ofthe US – Ph has no jurisdiction, these includes: 1. against the property of the US2. against the security of the US3. against the property of another military personnel 4. against the security of another military personnel 5. committed in the performance of official duties

Q: Suppose US military personnel was driving at Roxas Blvd to deliver a confidential letter to the US embassy, while driving, he run over a pedestrian, which court has jurisdiction?US. Committed in the performance of official duties.

Q: Suppose one night US military personnel went to the bar, after drinking and being so tipsy, raped a woman, which court has jurisdiction?PH. Not in the performance of official duties

Q: Suppose 2 Filipino citizens working as US military personnel in the PH had a quarrel. Filipino 1 shoots Filipino 2. Who has jurisdiction?US. Citizenship is immaterial. What is important is attachment to the US military

Q: Suppose the one who was injured filed a civil case for damages, will it prosper?No. VFA covers only criminal aspect

Q: 1 US marine stole the wallet of another US marine, who has jurisdiction?US. Property of another military personnel

Q: Suppose you are a judge, the US wrote a letter for you to waive jurisdiction, what will you do? Generally, the PH has to waive jurisdiction upon request of US. The request for waiver cannot be rejected.

Q: Is this rule absolute?No. The request for waiver may be rejected if the crime is of particular importance

RA 9659 (heinous crime)RA 7610 (child abuse cases)RA 9165 (dangerous drugs)

Q: Suppose US military personnel committed kidnapping, who has jurisdiction?PH courts. This is a crime against personal security

Q: Give an example of Laws of Preferential Application that is local in nature?Constitution*immunity suit of president*absolute immunity of Congress for privilege speeches*Congress immune from libel

NOTE: Art 6, Sec 11, 1987 Consti is not an exception. BECAUSE Congress is only immune from arrest not from prosecution

Q: What else?RA 75 – Public International LawDiplomatic immunity and cannot be sued, arrested or punished by the law of the country where they are officially assigned: AmbassadorsSovereign or other chief of StateMinisters plenipotentiary or minister residentsCharge d’affairsDomestic Servants of persons mentioned

NOTE: Consuls and other consular officials are not exempt from criminal liability because they represent the business, commercial mercantile of their country; while, ambassadors, chiefs of State, etc. represent the political interests of their country of origin.

WARSHIP RULE-warship of another country, even though docked in the PH is considered an extension of the territory of that country

Q: suppose the warship of US is docked at Subic, one day, you went to Subic with your gf, brought her to the ship, and then raped her. Will you be prosecuted?No. Warship is an extension US territory

Q: suppose after raping her, you brought your gf to her parents, will you be prosecuted?No. Warship rule

Embassy Rule – same as warship rule

Q: Suppose one day, you shut a person at Roxas Blvd, when the police officers were running after you, you jumped over the fence of US embassy. May the officers arrest you, while you are inside the US embassy?

No.

Q: What is then the remedy of the officers (Ph government)?Extradition

Q: suppose a Filipina legally married had sexual intercourse with an American at the Ph embassy. Is there any crime committed? Yes. The crime of adultery, but she cannot be prosecuted under Ph courts because of the embassy rule.

Q: who else is exempt/immune from criminal prosecution?Executive directors of WHOMembers of the Constitutional CommissionJustices of Supreme Court

Q: How about consular officials?They are not covered. They are not exempt from criminal liability because they represent the business, commercial mercantile interests of their country of origin.

Q: Suppose Ambassador of Japan to the US committed a crime in the Philippines, may he be prosecuted?Yes, because he is not a recognized diplomatic representative of his country to the Philippines.

Article 2

^par 1-5 of Art 2 is not an exemption to the territoriality principle, it is EXTRATERRITORIALITY!

Q: The first instance in Art 2?Should commit an offense while on Ph ship or airship

Q: What is Ph ship or airship?Ship registered with MARINAAirship registered with Civil Aeronautics Board

Q: What are the requirements in order a ship/airship be a Ph ship?It must be registered in accordance with Ph laws

Q: Why not register in Bureau of Customs?The law requiring registration in Bureau of Customs had been repealed. Now its Marina and CAB

Q: Does PH include warship?No. Warship has different rule

Q: Suppose a cargo ship in Quezon going to Malaysia, within Ph territory, 1 crew committed homicide against another crew, who has jurisdiction?PH. The crime is committed in PH territoryIt is not important whether cargo ship is registered or not, because crime committed in Ph territory. (Territoriality principle)

Q: Suppose that cargo ship traversed through international waters then reached the waters of Malaysia, 1 crew member committed homicide againstanother. Which court?Malaysia. Because the crime is committed in Malaysian waters

^Art 2, par 1 ceases to apply if the ship is in the territory of foreign country ^Art 2, par 1 applies only if the ship is in international waters

Q: Suppose you live in a coastal town, then you hired an unregistered motorboat, then you went to int’l waters, then you shoot your gf because you are so depressed because of recitations in criminal law review, will you be liable?

No. unregistered motorboat

Q: suppose in the same motorboat, a married man with his new gf went on high seas, and there got married. Is the man liable for any crime?Yes. He is liable for bigamy. (because he contracted a second marriage) BUT he cannot be prosecuted because of the territoriality principle. The crime was committed outside Ph territory.

Q: suppose after the wedding ceremony, you went to a resort, where there is a big reception. In that resort, you had your honeymoon; will you (married man) be liable for any crime? No. Not concubinage because mere sexual intercourse not punishable, it must be under scandalous manner

Q: suppose after your honeymoon, you live together in a condo in Manila, will you be liable?Yes. ConcubinageCohabitation; living in a separate home as husband and wife

Q: What are the 2 rules?English Rule – vessel is in the territory of another country, crimes committed in that area are triable in that other country, unless the crimes committed involve purely internal matters within the vessel; the emphasis is on the territoriality of the vessel; where the vessel is found

French Rule – vessel is in the territory of another country, crimes committed in that area are not triable in that country, unless the crimes committed have endangered the peace and security of that country; the emphasis is on the nationality of the vessel; jurisdiction lies where the merchant vessel is registered.

^The PH adheres to the English rule

Q: Cargo ship, registered in Panama while in Manila, 1 crew member shoot the other crew member, who has jurisdiction?Ph courts. Crime committed in manila

Q: Cargo ship, registered in Panama, carried shabu, which court has jurisdiction?Ph courts.

Q: Second instance in Art 2?Art 2 par 2.Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands

Q: what may be the subject of forgery?Any coin, Currency Note, obligations and securities issued by the Government of the Philippine Islands

Q: Suppose you have a printing press in Taiwan, and you printed Bagong Lipunan notes (martial law), liable?No. Because Bagong Lipunan notes are not legal tender

Q: Suppose coins withdrawn from circulation, liable?Yes. The law does not distinguish. It says ANY COIN

Q: Suppose in you tampered a lotto ticket, liable?Yes. Lotto ticket is obligations and securities issued by the GPI

Q: give examples of obligations and securities of GPITreasury bills, lotto tickets, bonds of the BSP^Obligations and Securities of GSIS, SSS, Landbank are not of the GPI because they have their own charter

Q: any other instance?Art 2, par 3Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number

^those who introduced the counterfeited items are criminally liable, even if they were not the ones who counterfeited the obligations & securities ^on the other hand, those who counterfeited the items are criminally liable even if they did not introduce the counterfeit items

Q: any other instance?Art 2, par. 4While being public officers or employees, should commit an offense in the exercise of their functions

Q: who is a public officer? (see Art 203)*taking part in the performance of public functions in the government, or performing in said government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class; and

*that his authority to take part in the performance of public functions or to perform public duties must be – a. by direct provision of the law, orb. by popular election, orc. by appointment by competent authority

Q: Suppose PH ambassador to Germany was given USD 200,000 as a fund to renovate the PH embassy building in Germany. He used only USD 50,000 for the renovation, and gave the USG 150,000 to his number 2 in Germany. Is he(ambassador) liable?

Yes. He is liable for malversation of public funds. He may be prosecuted in Ph courts.He was in custody of the money by reason of his official functions Q: Suppose our AFP high officials were tasked to scout for firearms abroad, and while they are negotiating with foreign companies abroad, these companies inserted USD1000 in the proposal folder in anticipation that their company will be chosen by AFP to be the supplier of our firearms. May these AFP officials be liable?

Yes. They are liable for bribery.

Q: (follow-up) Even if the act of accepting the bribe was committed abroad, will they still be liable? Yes, because the act was committed in relation or while the AFP are in discharge of their official functions.

Q: Suppose Chairman Abalos (comelec) while playing golf in Shanghai, China received USD50,000 in relation to the ZTE? Is there a crime committed? May he be liable?Crime – anti graft & corrupt practices actBUT, he cannot be liable/prosecuted before Ph courts because Abalos has nothing to do with ZTE (paki alamera lang siya). Therefore, he received the money not in connection with his official function.

Q: Suppose the PH ambassador to Australia is legally married. Can he be prosecuted for concubinage?No. Crime was committed outside PHCrime was not in relation to official functionsElements of concubinage:1. That the man must be married.2. That he committed any of the following acts:a. Keeping a mistress in the conjugal dwelling. b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife. c. Cohabiting with her in any other place.

3. That as regards the woman she must know him to be married

Q: Can the PH ambassador use immunity from suit as a defense against PH courts?No

Q: PH ambassador, married, had sexual intercourse with her American boyfriend in the comfort room of PH embassy. May he be prosecuted?Yes. Ph embassy is an extension of Ph territoryFor what crime – adultery

Q: may the American citizen bf be liable for any crime?Yes. AdulteryElements:*That the woman is married (even if marriage subsequently declared void) *That she has sexual intercourse with a man not her husband. *That as regards the man with whom she has sexual intercourses, he must know her to be married.

Q: Last instance?Art 2, par 5Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code.

Q: Give example of crimes against national security?Treason, espionage, conspiracy to commit treason

Q: How about rebellion?No. rebellion is crimes against public order

Q: crimes committed by the MILF?No. Crime against public order

Q: example of violation of the law of nations?

Anti – terror lawCrimes against humanityGenocide

Q: what are the 2 kinds of piracy?Piracy under the RPCPiracy under PD 532

Q: what does Art 2 covers?Piracy under RPC only. Because piracy under PD532 is committed within PH waters

Article 3

Q: What are felonies?Acts and omissions punishable by law are felonies (delitos).

Q: What do you mean by “punishable by law”Punishable by the RPC

Q: how felonies are committed?Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa).

Q: What is dolo? What is culpa?There is deceit when the act is performed with deliberate intent and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

^Violations of RPC – felony^Violations of special penal law – offenses^violations of ordinance – misdemeanor (minor infraction of the law)

Q: What are the requisites of felony?1. Act or omission

2. RPC3. Voluntarya. Freedomb. Intelligencec. Intent^ALL MUST BE PRESENT IN ORDER TO INCUR CRIMINAL LIABILITY

Q: Is illegal possession of bladed weapon a felony?No. It is not under the Revised Penal Code

Atty. Amurao Lecture Highlights:*To be considered as a felony there must be an act or omission; a mere imagination no matter how wrong does not amount to a felony.

*An act refers to any kind of body movement that produces change in the outside world. For example, if you have in your mind that you will rape this beautiful lady, but you did not rape her, you will not be liable.

*Actus non facit reum, nisi mens sit rea (an act of a criminal should be coupled by a criminal mind)

*It does not mean that if an act or omission is punished under the Revised Penal Code, a felony is already committed. To be considered a felony, it must also be done with dolo or culpa.

*If you do not have freedom, the act is not voluntary; the act is not a felony

*These are amplified in the some provisions of the RPC, like… Intelligence – art 12 – insanity, imbecility, minority Freedom – art 12 – under compulsion of some irresistible force; fear of greater injury Intent – art 12 – by mere accident w/out fault or intent to cause harm

*Mistake of fact is a valid defense

Q: What are the differences between MALA IN SE and MALA PROHIBITA

| MALA IN SE |MALA PROHIBITA | |*intent is essential |*intent is not essential | |*good faith is a valid defense |*good faith is not a valid defense | |*honest mistake of fact is a defense |*honest mistake of fact is not a defense | |*punishable under RPC |*punishable under special laws | |*condemned by society |*injurious to public welfare | |*act done must be criminal intent |*it is sufficient that the prohibited act was| | |done |

Q: give examples of Mala In se?RPC – homicide, murder, parricide, arson … and so on…

Q: give examples of Mala prohibitaAnti Fencing LawBouncing Check LawIllegal Possession of FirearmsAnti Human Trafficking LawAnti Hijacking Lack

Q: Suppose your bf is a police officer, 1 day while you were having your date in Luneta Park, your bf had to answer the call of nature, so he handed to you his pistol, while you were holding it, the officers arrested you, may you be liable for illegal possession of firearms?

No. Transient Possession not liableAlthough I was in possession, although I have no license to posses, Still not liable because I have no intent, and this is an exception to mala prohibita

Q: Suppose the police officers are running after a man, then the man throwhis .45 caliber, you were around the corner and you extended your arms, then the firearm fell on your hands, may you be liable for illegal possession?

No. Transient possession

Q: Suppose I (atty. Amurao) mortaged my firearm to you for 30 days, and on the 20th day, there was a raid in your house, may you be liable for illegal possession?Yes. There is animus possendi

|an act or omission | | | |Act – any physical movement of the body (Amurao); any bodily movement tending to produce some effect in the external world (Reyes) | | | |Omission – means inaction; the failure to perform a positive duty which one is bound to do; there must be a law requiring the | |performance of an act and punishing the omission; eg. arbitrary detention; misprision of treason | | | |punishable by the Revised Penal Code | |^When there is a conflict between special penal laws and the Revised Penal Code, in terms of the application of penalties, what to | |follow? | | | |^What is important is the definition and the classification of the act (whether it is an offense or a felony) | | | |Special Penal Laws = penalties are stated in terms of years, months, days | | | |Revised Penal Code = penalties are stated in terms of degrees, with death as the highest penalty; classified as indivisible or | |divisible | | | |a. indivisible =death and public censure | |b. divisible (has 3 periods; what period to apply is dependent on the aggravating and mitigating circumstances present in the case)| | | |Penalties under the RPC (in descending order in terms of degree) | |Death or Capital Punishment – indivisible | |Reclusion Perpetua (20yrs & 1day – 40yrs) | |Reclusion Temporal (12yrs & 1day – 20yrs) | |Prision Mayor (6yrs & 1day – 12yrs) | |Prision Correccional divisible | |or Destierro (6mos&1day – 6yrs) | |Arresto Mayor (1mo & 1day – 6mos) | |Arresto Menor (1day – 30days) | |Fine | |Public Censure – indivisible | | | |the acts done should be voluntary (Amurao) | | | |voluntary – the concurrence of intelligence, freedom, intent (Ortega) | |^all should be present in order to incur criminal liability | | | |(a) intelligence – no intelligence, no criminal liability; eg. children 15 yrs old & below are exempt from criminal liability (RA | |9344) | |(b) freedom – no freedom, act is not voluntary, no criminal liability | |(c) intent – essential to a felony; prosecution has to prove intent; good faith is a defense | || |Article 12 of the RPC (Exempting Circumstances) is amplified by the importance of the element of voluntariness: | | | |(a) intelligence – insanity/imbecility [Art.12(1)]; minority [Art.12(2&3)] | | | |(b) freedom – under the compulsion of some irresistible force [Art.12(5)]; fear of greater injury [Art.12(6)]; failure to perform | |an act required by law when prevented by some lawful or insuperable cause [Art.12(7)] | | | |(c) intent – by mere accident w/o fault or intent to cause harm [Art.12(4)] | | | |Alibi – used in defense saying that the act or omission was not done at all; intends to disprove the existence of an act or | |omission; weakest defense; can easily be fabricated; eg. Vizconde case – Webb’s alibi = he argued that he was in the US when the | |crime happened, therefore, he could not have killed the victims, claiming that he is innocent | | | |Actus non facit reum, nisi mens sit rea – an act of a