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REVISED ORTEGANOTES

Book I ICr imes and Penal t ies

TITLE I. CRIMES AGAINST NATIONALSECURITY AND THE LAW OF NATIONS

Crimes against national security1. Treason (Art. 114);

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

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

4. Espionage (Art. 117).

Crimes against the law of nations1. Inciting to war or giving motives for reprisals

(Art. 118);

2. Violation of neutrality (Art. 119);

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

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

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

The crimes under this title can be prosecutedeven if the criminal act or acts were committedoutside the Philippine territorial jurisdiction.However, prosecution can proceed only if theoffender is within Philippine territory or broughtto the Philippines pursuant to an extraditiontreaty. This is one of the instances where theRevised Penal Code may be given extra-territorial application under Article 2 (5) thereof.In the case of crimes against the law of nations,the offender can be prosecuted whenever hemay be found because the crimes are regardedas committed against humanity in general.

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

(1) Espionage, under Article 114 This isalso covered by Commonwealth Act No.616 which punishes conspiracy tocommit espionage. This may becommitted both in times of war and in

times of peace.

(2) Inciting to War or Giving Motives forReprisals, under Article 118 This canbe committed even if the Philippines isnot a participant. Exposing the Filipinosor their properties because the offenderperformed an unauthorized act, likethose who recruit Filipinos to participatein the gulf war. If they involvethemselves to the war, this crime iscommitted. Relevant in the cases of FlorContemplacion or Abner Afuang, thepolice officer who stepped on aSingaporean flag.

(3) Violation of Neutrality, under Article 119 The Philippines is not a party to a warbut there is a war going on. This maybe committed in the light of the MiddleEast war.

Article 114. Treason

Elements1. Offender is a Filipino or resident alien;2. THERE IS A WAR IN WHICH THE

PHILIPPINES IS INVOLVED;

3. Offender either A. LEVIES WAR AGAINST THEGOVERNMENT; OR

b. adheres to the enemies, giving them aidor comfort within the Philippines orelsewhere

Requirements of levying war1. Actual assembling of men;2. To execute a treasonable design by force;3. Intent is to deliver the country in whole or in

part to the enemy; and4. Collaboration with foreign enemy or some

foreign sovereign

Two ways of proving treason1. Testimony of at least two witnesses to the

same overt act; or2. Confession of accused in open court.


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Article 115. Conspiracy and Proposal toCommit Treason

Elements of conspiracy to commit treason1. There is a war in which the Philippines is

involved;2. At least two persons come to an agreement

to a. levy war against the government; or

b. adhere to the enemies, giving them aidor comfort;3. They decide to commit it.

Elements of proposal to commit treason1. There is a war in which the Philippines is

involved;2. At least one person decides to

A. LEVY WAR AGAINST THE GOVERNMENT;OR

b. adhere to the enemies, giving them aidor comfort;

3. He proposes its execution to some otherpersons.

Article 116. Misprision of Treason

Elements1. Offender owes allegiance to the government,

and not a foreigner;2. He has knowledge of conspiracy to commit

treason against the government;3. He conceals or does not disclose and make

known the same as soon as possible to thegovernor or fiscal of the province in which heresides, or the mayor or fiscal of the city inwhich he resides.

While in treason, even aliens can commit saidcrime because of the amendment to the article,no such amendment was made in misprision oftreason. Misprision of treason is a crime thatmay be committed only by citizens of thePhilippines.

The essence of the crime is that there arepersons who conspire to commit treason and theoffender knew this and failed to make thenecessary report to the government within theearliest possible time. What is required is toreport it as soon as possible. The criminalliability arises if the treasonous activity was still

at the conspiratorial stage. Because if thetreason already erupted into an overt act, theimplication is that the government is alreadyaware of it. There is no need to report the same.This is a felony by omission although committedwith dolo, not with culpa.

The persons mentioned in Article 116 are notlimited to mayor, fiscal or governor. Any personin authority having equivalent jurisdiction, like aprovincial commander, will already negatecriminal liability.

Whether the conspirators are parents or children,and the ones who learn the conspiracy is aparent or child, they are required to report the

same. The reason is that although blood isthicker than water so to speak, when it comes tosecurity of the state, blood relationship is alwayssubservient to national security. Article 20 doesnot apply here because the persons found liablefor this crime are not considered accessories;they are treated as principals.In the 1994 bar examination, a problem wasgiven with respect to misprision of treason. Thetext of the provision simply refers to aconspiracy to overthrow the government. Theexaminer failed to note that this crime can onlybe committed in times of war. The conspiracyadverted to must be treasonous in character. Inthe problem given, it was rebellion. A conspiracy

to overthrow the government is a crime ofrebellion because there is no war. Under theRevised Penal Code, there is no crime ofmisprision of rebellion.

Article 117. Espionage

Acts punished1. By entering, without authority therefore, a

warship, fort or naval or militaryestablishment or reservation to obtain anyinformation, plans, photograph or other dataof a confidential nature relative to thedefense of the Philippines;

Elementsa. Offender enters any of the places

mentioned;b. He has no authority therefore;c. His purpose is to obtain information,

plans, photographs or other data of aconfidential nature relative to thedefense of the Philippines.

2. By disclosing to the representative of aforeign nation the contents of the articles,data or information referred to in paragraph1 of Article 117, which he had in hispossession by reason of the public office heholds.

Elementsa. Offender is a public officer;b. He has in his possession the articles,

data or information referred to inparagraph 1 of Article 117, by reason ofthe public office he holds;


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

Commonwealth Act No. 616 An Act toPunish Espionage and Other Offensesagainst National Security

Acts punished

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

2. Unlawful disclosing of information affectingnational defense;

3. Disloyal acts or words in times of peace;4. Disloyal acts or words in times of war;5. Conspiracy to violate preceding sections;

and6. Harboring or concealing violators of law.

Article 118. Inciting to War or GivingMotives for Reprisals

Elements1. Offender performs unlawful or unauthorized

acts;2. The acts provoke or give occasion for

a. a war involving or liable to involve thePhilippines; or

b. exposure of Filipino citizens to reprisalson their persons or property.

Article 119. Violation of Neutrality

Elements1. There is a war in which the Philippines is not

involved;2. There is a regulation issued by a competent

authority to enforce neutrality;3. Offender violates the regulation.

When we say national security, it should beinterpreted as including rebellion, sedition andsubversion. The Revised Penal Code does nottreat rebellion, sedition and subversion as crimesagainst national security, but more of crimesagainst public order because during the time thatthe Penal Code was enacted, rebellion wascarried out only with bolos and spears; hence,national security was not really threatened.

Now, the threat of rebellion or internal wars isserious as a national threat.

Article 120. Correspondence wi th HostileCountry

Elements1. It is in time of war in which the Philippines is

involved;2. Offender makes correspondence with an

enemy country or territory occupied byenemy troops;

3. The correspondence is either a. prohibited by the government;b. carried on in ciphers or conventional

signs; orc. containing notice or information which

might be useful to the enemy.

Article 121. Flight to Enemy's Country

Elements1. There is a war in which the Philippines is

involved;2. Offender must be owing allegiance to the

government;

3. Offender attempts to flee or go to enemycountry;

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

In crimes against the law of nations, theoffenders can be prosecuted anywhere in theworld because these crimes are considered asagainst humanity in general, like piracy andmutiny. Crimes against national security can betried only in the Philippines, as there is a need tobring the offender here before he can be madeto suffer the consequences of the law. The actsagainst national security may be committed

abroad and still be punishable under our law, butit can not be tried under foreign law.

Article 122. Piracy in general and Mutiny onthe High Seas or in Philippine Waters

Acts punished as piracy1. Attacking or seizing a vessel on the high

seas or in Philippine waters;2. Seizing in the vessel while on the high seas

or in Philippine waters the whole or part ofits cargo, its equipment or personalbelongings of its complement or passengers.

Elements of piracy1. The vessel is on the high seas or Philippine

waters;2. Offenders are neither members of its

complement nor passengers of the vessel;3. Offenders either


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

b. seize in the vessel while on the highseas or in Philippine waters the whole orpart of its cargo, its equipment orpersonal belongings of its complementor passengers;

4. There is intent to gain.

Originally, the crimes of piracyand mutiny can only becommitted in the high seas, thatis, outside Philippine territorialwaters. But in August 1974,Presidential Decree No. 532(The Anti-Piracy and Anti-Highway Robbery Law of 1974)was issued, punishing piracy,but not mutiny, in Philippineterritorial waters. Thus cameabout two kinds of piracy: (1)that which is punished underthe Revised Penal Code ifcommitted in the high seas; and

(2) that which is punished underPresidential Decree No. 532 ifcommitted in Philippineterritorial waters.Amending Article 122, RepublicAct No. 7659 included thereinpiracy in Philippine waters, thus,pro tanto supersedingPresidential Decree No. 532.As amended, the article nowpunishes piracy, as well asmutiny, whether committed inthe high seas or in Philippineterritorial waters, and thepenalty has been increased to

reclusion perpetua fromreclusion temporal.

But while under PresidentialDecree No. 532, piracy inPhilippine waters could becommitted by any person,including a passenger ormember of the complement of avessel, under the amendedarticle, piracy can only becommitted by a person who isnot a passenger nor member ofthe complement of the vesselirrespective of venue. So if a

passenger or complement of thevessel commits acts of robberyin the high seas, the crime isrobbery, not piracy.

Note, however, that in Section 4of Presidential Decree No. 532,

the act of aiding pirates orabetting piracy is penalized as acrime distinct from piracy. Saidsection penalizes any personwho knowingly and in anymanner aids or protects pirates,such as giving them informationabout the movement of thepolice or other peace officers of

the government, or acquires orreceives property taken by suchpirates, or in any mannerderives any benefit therefrom;or who directly or indirectlyabets the commission of piracy.Also, it is expressly provided inthe same section that theoffender shall be considered asan accomplice of the principaloffenders and punished inaccordance with the RevisedPenal Code. This provision ofPresidential Decree No. 532 withrespect to piracy in Philippine

water has not been incorporatedin the Revised Penal Code.Neither may it be consideredrepealed by Republic Act No.7659 since there is nothing inthe amendatory law isinconsistent with said section.Apparently, there is still thecrime of abetting piracy inPhilippine waters underPresidential Decree No. 532.

Considering that the essence of piracy is one ofrobbery, any taking in a vessel with force uponthings or with violence or intimidation against

person is employed will always be piracy. Itcannot co-exist with the crime of robbery.Robbery, therefore, cannot be committed onboard a vessel. But if the taking is withoutviolence or intimidation on persons of force uponthings, the crime of piracy cannot be committed,but only theft.

PIRACY is a crime against humanity (hosteshumanes generis)

Questions & Answers

Could theft be committed on board a vessel? Yes. The essence of piracy is one of robbery.

Mutiny is the unlawful resistance to a superiorofficer, or the raising of commotions and


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disturbances aboard a ship against the authorityof its commander.

Elements of mutiny1. The vessel is on the high seas or Philippine

waters;2. Offenders are either members of its

complement, or passengers of the vessel;3. Offenders either

a. attack or seize the vessel; orb. seize the whole or part of the cargo, itsequipment, or personal belongings ofthe crew or passengers.

Distinction between mutiny and piracy(1) As to offenders

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

Piracy is committed by persons who arenot members of the complement or thepassengers of the vessel.

(2) As to criminal intent

In mutiny, there is no criminal intent.

In piracy, the criminal intent is for gain.

Article 123. Qualified Piracy

Elements1. The vessel is on the high seas or Philippine

waters;2. Offenders may or may not be members of its

complement, or passengers of the vessel;3. Offenders either

a. attack or seize the vessel; orb. seize the whole or part of the cargo, its

equipment., or personal belongings ofthe crew or passengers;

4. The preceding were committed under any ofthe following circumstances:a. whenever they have seized a vessel by

boarding or firing upon the same;b. whenever the pirates have abandoned

their victims without means of savingthemselves; or

c. whenever the crime is accompanied bymurder, homicide, physical injuries orrape.

If any of the circumstances in Article 123 ispresent, piracy is qualified. Take note of thespecific crimes involve in number 4 c (murder,homicide, physical injuries or rape). When anyof these crimes accompany piracy, there is nocomplex crime. Instead, there is only one crime

committed qualified piracy. Murder, rape,homicide, physical injuries are merecircumstances qualifying piracy and cannot bepunished as separate crimes, nor can they becomplexed with piracy.Although in Article 123 merely refers to qualifiedpiracy, there is also the crime of qualifiedmutiny. Mutiny is qualified under the followingcircumstances:

(1) When the offenders abandoned thevictims without means of savingthemselves; or

(2) When the mutiny is accompanied byrape, murder, homicide, or physicalinjuries.

Note that the first circumstance which qualifiespiracy does not apply to mutiny.

Republic Act No. 6235 (The Anti Hi-JackingLaw)

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

Four situations governed by anti hi-jacking law:(1) usurping or seizing control of an aircraft

of Philippine registry while it is in flight,compelling the pilots thereof to changethe course or destination of the aircraft;

(2) usurping or seizing control of an aircraftof foreign registry while within Philippineterritory, compelling the pilots thereof toland in any part of Philippine territory;

(3) carrying or loading on board an aircraftoperating as a public utility passengeraircraft in the Philippines, anyflammable, corrosive, explosive, orpoisonous substance; and

(4) loading, shipping, or transporting onboard a cargo aircraft operating as apublic utility in the Philippines, anyflammable, corrosive, explosive, orpoisonous substance if this was done notin accordance with the rules andregulations set and promulgated by theAir Transportation Office on this matter.

Between numbers 1 and 2, the point ofdistinction is whether the aircraft is of Philippineregistry or foreign registry. The common barquestion on this law usually involves number 1.The important thing is that before the anti hi- jacking law can apply, the aircraft must be in


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the distinction is that as long as such aircrafthas not returned to its home base,technically, it is still considered in transit orin flight.

As to numbers 3 and 4 of Republic Act No. 6235,the distinction is whether the aircraft is apassenger aircraft or a cargo aircraft. In both

cases, however, the law applies only to publicutility aircraft in the Philippines. Private aircraftsare not subject to the anti hi-jacking law, in sofar as transporting prohibited substances areconcerned.

If the aircraft is a passenger aircraft, theprohibition is absolute. Carrying of anyprohibited, flammable, corrosive, or explosivesubstance is a crime under Republic Act No.6235. But if the aircraft is only a cargo aircraft,the law is violated only when the transporting ofthe prohibited substance was not done inaccordance with the rules and regulationsprescribed by the Air Transportation Office in the

matter of shipment of such things. The Board ofTransportation provides the manner of packingof such kind of articles, the quantity in whichthey may be loaded at any time, etc. Otherwise,the anti hi-jacking law does not apply.

However, under Section 7, any physical injury ordamage to property which would result from thecarrying or loading of the flammable, corrosive,explosive, or poisonous substance in an aircraft,the offender shall be prosecuted not only forviolation of Republic Act No. 6235, but also forthe crime of physical injuries or damage toproperty, as the case may be, under the RevisedPenal Code. There will be two prosecutions here.

Other than this situation, the crime of physicalinjuries will be absorbed. If the explosives wereplanted in the aircraft to blow up the aircraft, thecircumstance will qualify the penalty and that isnot punishable as a separate crime for murder.The penalty is increased under the anti hi-jacking law.

All other acts outside of the four are merelyqualifying circumstances and would bring abouthigher penalty. Such acts would not constituteanother crime. So the killing or explosion willonly qualify the penalty to a higher one.

Questions & Answers

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

The crime remains to be a violation of theanti hi-jacking law, but the penalty thereofshall be higher because a passenger orcomplement of the aircraft had been killed.The crime of homicide or murder is notcommitted.

2. The hi-jackers threatened to detonate abomb in the course of the hi-jack. What

crime or crimes were committed?

Again, the crime is violation of the anti hi- jacking law. The separate crime of gravethreat is not committed. This is consideredas a qualifying circumstance that shall serveto increase the penalty.

TITLE II. CRIMES AGAINST THEFUNDAMENTAL LAW S OF THE STATE

Crimes against the fundamental laws of theState

1. Arbitrary detention (Art. 124);

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

3. Delaying release (Art. 126);

4. Expulsion (Art. 127);

5. Violation of domicile (Art. 128);

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

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

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

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

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

Crimes under this title are those which violatethe Bill of Rights accorded to the citizens underthe Constitution. Under this title, the offendersare public officers, except as to the last crime offending the religious feelings under Article 133,

which refers to any person. The public officerswho may be held liable are only those actingunder supposed exercise of official functions,albeit illegally.

In its counterpart in Title IX (Crimes AgainstPersonal Liberty and Security), the offenders are


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private persons. But private persons may alsobe liable under this title as when a privateperson conspires with a public officer. What isrequired is that the principal offender must be apublic officer. Thus, if a private person conspireswith a public officer, or becomes an accessory oraccomplice, the private person also becomesliable for the same crime. But a private personacting alone cannot commit the crimes under

Article 124 to 132 of this title.

Article 124. Arbitrary Detention

Elements1. Offender is a public officer or employee;2. He detains a person;3. The detention is without legal grounds.

Meaning of absence of legal grounds1. No crime was committed by the detained;2. There is no violent insanity of the detained

person; and3. The person detained has no ailment which

requires compulsory confinement in ahospital.

The crime of arbitrary detention assumes severalforms:(1) Detaining a person without legal grounds

under;

(2) Having arrested the offended party forlegal grounds but without warrant ofarrest, and the public officer does notdeliver the arrested person to the properjudicial authority within the period of 12,18, or 36 hours, as the case may be; or

(3) Delaying release by competent authoritywith the same period mentioned innumber 2.

Distinction between arbitrary detention andillegal detention

1. In arbitrary detention --

The principal offender must be a publicofficer. Civilians can commit the crimeof arbitrary detention except when theyconspire with a public officer committingthis crime, or become an accomplice oraccessory to the crime committed by the

public officer; and

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

2. In illegal detention --

The principal offender is a privateperson. But a public officer can committhe crime of illegal detention when he isacting in a private capacity or beyondthe scope of his official duty, or when hebecomes an accomplice or accessory to

the crime committed by a privateperson.

The offender, even if he is a publicofficer, does not include as his functionthe power to arrest and detain a person,unless he conspires with a public officercommitting arbitrary detention.

Note that in the crime of arbitrary detention,although the offender is a public officer, not anypublic officer can commit this crime. Only thosepublic officers whose official duties carry with itthe authority to make an arrest and detainpersons can be guilty of this crime. So, if the

offender does not possess such authority, thecrime committed by him is illegal detention. Apublic officer who is acting outside the scope ofhis official duties is no better than a privatecitizen.

Questions & Answ ers

1. A janitor at the Quezon City Hall wasassigned in cleaning the mens room. Oneday, he noticed a fellow urinating socarelessly that instead of urinating at thebowl, he was actually urinating partly on the

floor. The janitor resented this. He steppedout of the mens room and locked the same.He left. The fellow was able to come outonly after several hours when people fromthe outside forcibly opened the door. Is thejanitor liable for arbitrary detention?

No. Even if he is a public officer, he is notpermitted by his official function to arrestand detain persons. Therefore, he is guiltyonly of illegal detention. While the offenderis a public officer, his duty does not includethe authority to make arrest; hence, thecrime committed is illegal detention.

2. A municipal treasurer has been courting hissecretary. However, the latter alwaysturned him down. Thereafter, she tried toavoid him. One afternoon, the municipaltreasurer locked the secretary inside theiroffice until she started crying. The treasurer


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opened the door and allowed her to gohome. What crime was committed?

Illegal detention. This is because themunicipal treasurer has no authority todetain a person although he is a publicofficer.

In a case decided by the Supreme Court aBarangay Chairman who unlawfully detainsanother was held to be guilty of the crime ofarbitrary detention. This is because he is aperson in authority vested with the jurisdiction tomaintain peace and order within his barangay.In the maintenance of such peace and order, hemay cause the arrest and detention oftroublemakers or those who disturb the peaceand order within his barangay. But if the legalbasis for the apprehension and detention doesnot exist, then the detention becomes arbitrary.Whether the crime is arbitrary detention orillegal detention, it is necessary that there mustbe an actual restraint of liberty of the offended

party. If there is no actual restraint, as theoffended party may still go to the place where hewants to go, even though there have beenwarnings, the crime of arbitrary detention orillegal detention is not committed. There iseither grave or light threat.

However, if the victim is under guard in hismovement such that there is still restraint ofliberty, then the crime of either arbitrary orillegal detention is still committed.

Question & Answ er

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

Either arbitrary detention or illegal detention wascommitted. If a person is brought to a safehouse, blindfolded, even if he is free to move ashe pleases, but if he cannot leave the place,arbitrary detention or illegal detention iscommitted.

Distinction between arbitrary detention and

unlawful arrest

(1) As to offender

In arbitrary detention, the offender is apublic officer possessed with authority tomake arrests.

In unlawful arrest, the offender may beany person.

(2) As to criminal intent

In arbitrary detention, the main reasonfor detaining the offended party is todeny him of his liberty.

In unlawful arrest, the purpose is toaccuse the offended party of a crime hedid not commit, to deliver the person tothe proper authority, and to file thenecessary charges in a way trying toincriminate him.

When a person is unlawfully arrested, hissubsequent detention is without legal grounds.

Question & Answ er

A had been collecting tong from drivers. B, adriver, did not want to contribute to the tong.One day, B was apprehended by A, telling himthat he was driving carelessly. Reckless drivingcarries with it a penalty of immediate detentionand arrest. B was brought to the Traffic Bureauand was detained there until the evening. WhenA returned, he opened the cell and told B to gohome. Was there a crime of arbitrary detentionor unlawful arrest?

Arbitrary detention. The arrest of B was onlyincidental to the criminal intent of the offender todetain him. But if after putting B inside the cell,he was turned over to the investigating officer

who booked him and filed a charge of recklessimprudence against him, then the crime wouldbe unlawful arrest. The detention of the driver isincidental to the supposed crime he did notcommit. But if there is no supposed crime at allbecause the driver was not charged at all, hewas not given place under booking sheet orreport arrest, then that means that the onlypurpose of the offender is to stop him fromdriving his jeepney because he refused tocontribute to the tong.

Article 125. Delay in the Delivery ofDetained Persons to the Proper Judicial

Authorities

Elements1. Offender is a public officer or employee;2. He detains a person for some legal ground;3. He fails to deliver such person to the proper

judicial authorities within


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a. 12 hour for light penalties;b. 18 hours for correctional penalties; andc. 36 hours for afflictive or capital penalties

This is a form of arbitrary detention. At thebeginning, the detention is legal since it is in thepursuance of a lawful arrest. However, thedetention becomes arbitrary when the period

thereof exceeds 12, 18 or 36 hours, as the casemay be, depending on whether the crime ispunished by light, correctional or afflictivepenalty or their equivalent.

The period of detention is 12 hours for lightoffenses, 18 hours for correctional offences and36 hours for afflictive offences, where theaccused may be detained without formal charge.But he must cause a formal charge or applicationto be filed with the proper court before 12, 18 or36 hours lapse. Otherwise he has to release theperson arrested.

Note that the period stated herein does notinclude the nighttime. It is to be counted onlywhen the prosecutors office is ready to receivethe complaint or information.

This article does not apply if the arrest is with awarrant. The situation contemplated here is anarrest without a warrant.

Question & Answ er

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

turn over the arrested person to the judicialauthority?

There is no time limit specified except that thereturn must be made within a reasonable time.The period fixed by law under Article 125 doesnot apply because the arrest was made by virtueof a warrant of arrest.

When a person is arrested without a warrant, itmeans that there is no case filed in court yet. Ifthe arresting officer would hold the arrestedperson there, he is actually depriving thearrested of his right to bail. As long as there isno charge in the court yet, the arrested person

cannot obtain bail because bail may only begranted by the court. The spirit of the law is tohave the arrested person delivered to thejurisdiction of the court.

If the arrest is by virtue of a warrant, it meansthat there is already a case filed in court. When

an information is filed in court, the amount ofbail recommended is stated. The accused personis not really denied his right to bail. Even if he isinterrogated in the police precinct, he canalready file bail.

Note that delivery of the arrested person to theproper authorities does not mean physicaldelivery or turn over of arrested person to the

court. It simply means putting the arrestedperson under the jurisdiction of the court. Thisis done by filing the necessary complaint orinformation against the person arrested in courtwithin the period specified in Article 125. Thepurpose of this is for the court to determinewhether the offense is bailable or not and ifbailable, to allow him the right to bail.

Under the Rule 114 of the Revised Rules ofCourt, the arrested person can demand from thearresting officer to bring him to any judge in theplace where he was arrested and post the bailhere. Thereupon, the arresting officer mayrelease him. The judge who granted the bail will

just forward the litimus of the case to the courttrying his case. The purpose is in order todeprive the arrested person of his right to postthe bail.

Under the Revised Rules of Court, when theperson arrested is arrested for a crime whichgives him the right to preliminary investigationand he wants to avail his right to a preliminaryinvestigation, he would have to waive in writinghis rights under Article 125 so that the arrestingofficer will not immediately file the case with thecourt that will exercise jurisdiction over the case.If he does not want to waive this in writing, thearresting officer will have to comply with Article

125 and file the case immediately in courtwithout preliminary investigation. In such case,the arrested person, within five days afterlearning that the case has been filed in courtwithout preliminary investigation, may ask forpreliminary investigation. In this case, the publicofficer who made the arrest will no longer beliable for violation of Article 125.

Question & Answ er

The arrest of the suspect was done in BaguioCity. On the way to Manila, where the crime was

committed, there was a typhoon so the suspectcould not be brought to Manila until three dayslater. Was there a violation of Article 125?

There was a violation of Article 125. The crimecommitted was arbitrary detention in the form ofdelay in the delivery of arrested person to the


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proper judicial authority. The typhoon or flood isa matter of defense to be proved by the accused,the arresting officer, as to whether he is liable.In this situation, he may be exempt under Article12(7).

Before Article 125 may be applied, it is necessarythat initially, the detention of the arrested personmust be lawful because the arrest is based on

legal grounds. If the arrest is made without awarrant, this constitutes an unlawful arrest.Article 269, not Article 125, will apply. If thearrest is not based on legal grounds, the arrest ispure and simple arbitrary detention. Article 125contemplates a situation where the arrest wasmade without warrant but based on legalgrounds. This is known as citizens arrest.

Article 126. Delaying Release

Acts punished1. Delaying the performance of a judicial or

executive order for the release of a prisoner;

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

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

Elements1. Offender is a public officer or employee;2. There is a judicial or executive order for the

release of a prisoner or detention prisoner,or that there is a proceeding upon a petitionfor the liberation of such person;

3. Offender without good reason delays A. THE SERVICE OF THE NOTICE OF SUCH

ORDER TO THE PRISONER;

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

c. the proceedings upon a petition for therelease of such person.

Article 127. Expulsion

Acts punished1. Expelling a person from the Philippines;2. Compelling a person to change his

residence.

Elements

1. Offender is a public officer or employee;2. He either a. expels any person from the Philippines;

orb. compels a person to change residence;

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

The essence of this crime is coercion but thespecific crime is expulsion when committed bya public officer. If committed by a privateperson, the crime is grave coercion.

In Villavicencio v. Lukban, 39 Phil 778, themayor of the City of Manila wanted to make thecity free from prostitution. He ordered certain

prostitutes to be transferred to Davao, withoutobserving due processes since they have notbeen charged with any crime at all. It was heldthat the crime committed was expulsion.


1. Certain aliens were arrested and they were just put on the first aircraft which broughtthem to the country so that they may beout without due process of law. Was there acrime committed?

Yes. Expulsion.

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

Grave coercion, not expulsion, because aFilipino cannot be deported. This crimerefers only to aliens.

Article 128. Violation of Domicile

Acts punished1. Entering any dwelling against the will of the

owner thereof;

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

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

Common elements1. Offender is a public officer or employee;2. He is not authorized by judicial order to

enter the dwelling or to make a searchtherein for papers or other effects.

Circumstances qualifying the offense1. If committed at nighttime; or

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


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Under Title IX (Crimes against Personal Libertyand Security), the corresponding article isqualified trespass to dwelling under Article 280.Article 128 is limited to public officers. Thepublic officers who may be liable for crimesagainst the fundamental laws are those who arepossessed of the authority to execute searchwarrants and warrants of arrests.

Under Rule 113 of the Revised Rules of Court,when a person to be arrested enters a premiseand closes it thereafter, the public officer, aftergiving notice of an arrest, can break into thepremise. He shall not be liable for violation ofdomicile.

According to People vs. Doria and People vs.Elamparo, the following are the acceptedexceptions to the warrant requirement: (1)search incidental to an arrest; (2) search ofmoving vehicles; (3) evidence in plain view; (4)customs searches; and (5) consentedwarrantless search. Stop and frisk is no longerincluded.

There are three ways of committing the violationof Article 128:(1) By simply entering the dwelling of

another if such entering is done againstthe will of the occupant. In the plainview doctrine, public officer should belegally entitled to be in the place wherethe effects were found. If he enteredthe place illegally and he saw theeffects, doctrine inapplicable; thus, he isliable for violation of domicile.

(2) Public officer who enters with consent

searches for paper and effects withoutthe consent of the owner. Even if he iswelcome in the dwelling, it does notmean he has permission to search.

(3) Refusing to leave premises aftersurreptitious entry and being told toleave the same. The act punished is notthe entry but the refusal to leave. If theoffender upon being directed to eave,followed and left, there is no crime ofviolation of domicile. Entry must be donesurreptitiously; without this, crime maybe unjust vexation. But if entering wasdone against the will of the occupant of

the house, meaning there was expressor implied prohibition from entering thesame, even if the occupant does notdirect him to leave, the crime of isalready committed because it would fallin number 1.


1. It was raining heavily. A policeman tookshelter in one persons house. The ownerobliged and had his daughter serve thepolice some coffee. The policeman made apass at the daughter. The owner of the

house asked him to leave. Does this fallunder Article 128?

No. It was the owner of the house who letthe policeman in. The entering is notsurreptitious.

2. A person surreptitiously enters the dwellingof another. What crime or crimes werepossibly committed?

The crimes committed are (1) qualifiedtrespass to dwelling under Article 280, ifthere was an express or implied prohibitionagainst entering. This is tantamount to

entering against the will of the owner; and(2) violation of domicile in the third form ifhe refuses to leave after being told to.

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

Acts punished1. Procuring a search warrant without just

cause;

Elementsa. Offender is a public officer or employee;

b. He procures a search warrant;c. There is no just cause.

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

Elementsa. Offender is a public officer or employee;b. He has legally procured a search

warrant;c. He exceeds his authority or uses

unnecessary severity in executing thesame.

Article 130. Searching Domicile w ithoutWitnesses

Elements1. OFFENDER IS A PUBLIC OFFICER OR

EMPLOYEE;


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2. He is armed with search warrant legallyprocured;

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

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

Crimes under Articles 129 and 130 are referredto as violation of domicile. In these articles, thesearch is made by virtue of a valid warrant, butthe warrant notwithstanding, the liability for thecrime is still incurred through the followingsituations:

(1) Search warrant was irregularly obtained This means there was no probablecause determined in obtaining thesearch warrant. Although void, thesearch warrant is entitled to respectbecause of presumption of regularity.One remedy is a motion to quash thesearch warrant, not refusal to abide by

it. The public officer may also beprosecuted for perjury, because for himto succeed in obtaining a search warrantwithout a probable cause, he must haveperjured himself or induced someone tocommit perjury to convince the court.

(2) The officer exceeded his authority underthe warrant To illustrate, let us saythat there was a pusher in a condo unit.The PNP Narcotics Group obtained asearch warrant but the name of personin the search warrant did not tally withthe address stated. Eventually, theperson with the same name was found

but in a different address. The occupantresisted but the public officer insisted onthe search. Drugs were found andseized and occupant was prosecuted andconvicted by the trial court. TheSupreme Court acquitted him becausethe public officers are required to followthe search warrant to the letter. Theyhave no discretion on the matter. Plainview doctrine is inapplicable since itpresupposes that the officer was legallyentitled to be in the place where theeffects where found. Since the entrywas illegal, plain view doctrine does notapply.

(3) When the public officer employsunnecessary or excessive severity in theimplementation of the search warrant.The search warrant is not a license tocommit destruction.

(4) Owner of dwelling or any member of thefamily was absent, or two witnessesresiding within the same locality werenot present during the search.

Article 131. Prohibition, Interruption, andDissolution of Peaceful Meetings

Elements1. Offender is a public officer or employee;2. He performs any of the following acts:

a. prohibiting or by interrupting, withoutlegal ground, the holding of a peacefulmeeting, or by dissolving the same;

b. hindering any person from joining anylawful association, or attending any ofits meetings;

c. prohibiting or hindering any person fromaddressing, either alone or together withothers, any petition to the authorities forthe correction of abuses or redress ofgrievances.

The government has a right to require a permitbefore any gathering could be made. Anymeeting without a permit is a proceeding inviolation of the law. That being true, a meetingmay be prohibited, interrupted, or dissolvedwithout violating Article 131 of the Revised PenalCode.But the requiring of the permit shall be inexercise only of the governments regulatorypowers and not really to prevent peacefulassemblies as the public may desire. Permit isonly necessary to regulate the peace so as not toinconvenience the public. The permit shouldstate the day, time and the place where the

gathering may be held. This requirement is,therefore, legal as long as it is not beingexercised in as a prohibitory power.

If the permit is denied arbitrarily, Article 131 isviolated. If the officer would not give the permitunless the meeting is held in a particular placewhich he dictates defeats the exercise of theright to peaceably assemble, Article 131 isviolated.

At the beginning, it may happen that theassembly is lawful and peaceful. If in the courseof the assembly the participants commit illegalacts like oral defamation or inciting to sedition, a

public officer or law enforcer can stop or dissolvethe meeting. The permit given is not a license tocommit a crime.

There are two criteria to determine whetherArticle 131 would be violated:


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(1) Dangerous tendency rule applicable intimes of national unrest such as toprevent coup detat.

(2) Clear and present danger rule appliedin times of peace. Stricter rule.

Distinctions between prohibition, interruption, or

dissolution of peaceful meetings under Article131, and tumultsand other disturbances, underArticle 153

(1) As to the participation of the publicofficer

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

If the public officer is a participant of theassembly and he prohibits, interrupts, ordissolves the same, Article 153 is

violated if the same is conducted in apublic place.

(2) As to the essence of the crime

In Article 131, the offender must be apublic officer and, without any legalground, he prohibits, interrupts, ordissolves a peaceful meeting orassembly to prevent the offended partyfrom exercising his freedom of speechand that of the assembly to petition agrievance against the government.

In Article 153, the offender need not be

a public officer. The essence of thecrime is that of creating a seriousdisturbance of any sort in a public office,public building or even a private placewhere a public function is being held.

Article 132. Interruption of ReligiousWorship

Elements1. Offender is a public officer or employee;2. Religious ceremonies or manifestations of

any religious are about to take place or aregoing on;

3. Offender prevents or disturbs the same.

Qualified if committed by violence or threat.

Article 133. Offending the ReligiousFeelingsElements1. Acts complained of were performed in a

place devoted to religious worship, or duringthe celebration of any religious ceremony;

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

There must be deliberate intent to hurt thefeelings of the faithful.

TITLE II I. CRIMES AGAINST PUBLIC ORDER

Crimes against public order1. Rebellion or insurrection (Art. 134);

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

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

4. Inciting to rebellion (Art. 138);

5. Sedition (Art. 139);

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

7. Inciting to sedition (Art. 142);

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

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

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

11. Illegal assemblies (Art. 146);

12. Illegal associations (Art. 147);

13. Direct assaults (Art. 148);

14. Indirect assaults (Art. 149);

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

16. Resistance and disobedience to a person inauthority or the agents of such person (Art.151);

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


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

19. Alarms and scandals (Art. 155);

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

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

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

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

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

Article 134. Rebellion or Insurrection

Elements1. There is a public uprising and taking arms

against the government;

2. The purpose of the uprising or movement isa. to remove from the allegiance to the

government or its laws Philippineterritory or any part thereof, or anybody of land, naval, or other armedforces; or

b. to deprive the Chief Executive orCongress, wholly or partially, of any oftheir powers or prerogatives.

The essence of this crime is a public uprisingwith the taking up of arms. It requires amultitude of people. It aims to overthrow the

duly constituted government. It does not requirethe participation of any member of the militaryor national police organization or public officersand generally carried out by civilians. Lastly, thecrime can only be committed through force andviolence.

Rebellion and insurrection are not synonymous.Rebellion is more frequently used where theobject of the movement is completely tooverthrow and supersede the existinggovernment; while insurrection is morecommonly employed in reference to a movementwhich seeks merely to effect some change of

minor importance, or to prevent the exercise ofgovernmental authority with respect to particularmatters of subjects (Reyes, citing 30 Am. Jr. 1).

Rebellion can now be complexedwith common crimes. Not long ago,

the Supreme Court, in Enrile v.Salazar, 186 SCRA 217, reiteratedand affirmed the rule laid down inPeople v. Hernandez, 99 Phil515, that rebellion may not becomplexed with common crimeswhich are committed in furtherancethereof because they are absorbedin rebellion. In view of said

reaffirmation, some believe that ithas been a settled doctrine thatrebellion cannot be complexed withcommon crimes, such as killing anddestruction of property, committedon the occasion and in furtherancethereof.

This thinking is no longer correct; there is nolegal basis for such rule now.The statement in People v. Hernandez thatcommon crimes committed in furtherance ofrebellion are absorbed by the crime of rebellion,was dictated by the provision of Article 135 ofthe Revised Penal Code prior to its amendment

by the Republic Act No. 6968 (An Act Punishingthe Crime of Coup Detat), which becameeffective on October 1990. Prior to itsamendment by Republic Act No. 6968, Article135 punished those who while holding anypublic office or employment, take part thereinby any of these acts: engaging in war againstthe forces of Government; destroying property;committing serious violence; exactingcontributions, diverting funds for the lawfulpurpose for which they have been appropriated.

Since a higher penalty is prescribed for the crimeof rebellion when any of the specified acts arecommitted in furtherance thereof, said acts are

punished as components of rebellion and,therefore, are not to be treated as distinctcrimes. The same acts constitute distinct crimeswhen committed on a different occasion and notin furtherance of rebellion. In short, it wasbecause Article 135 then punished said acts ascomponents of the crime of rebellion thatprecludes the application of Article 48 of theRevised Penal Code thereto. In the eyes of thelaw then, said acts constitute only one crime andthat is rebellion. The Hernandez doctrine wasreaffirmed in Enrile v. Salazar because the textof Article 135 has remained the same as it waswhen the Supreme Court resolved the sameissue in the People v. Hernandez. So the

Supreme Court invited attention to this fact andthus stated:

There is a an apparent need to restructure thelaw on rebellion, either to raise the penaltytherefore or to clearly define and delimit theother offenses to be considered absorbed


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thereby, so that it cannot be convenientlyutilized as the umbrella for every sort of illegalactivity undertaken in its name. The court hasno power to effect such change, for it can onlyinterpret the law as it stands at any given time,and what is needed lies beyond interpretation.Hopefully, Congress will perceive the need forpromptly seizing the initiative in this matter,which is purely within its province.

Obviously, Congress took notice of thispronouncement and, thus, in enacting RepublicAct No. 6968, it did not only provide for thecrime of coup detat in the Revised Penal Codebut moreover, deleted from the provision ofArticle 135 that portion referring to those

who, while holding any public office oremployment takes part therein [rebellion orinsurrection], engaging in war against the forcesof government, destroying property orcommitting serious violence, exactingcontributions or diverting public funds from thelawful purpose for which they have been

appropriated

Hence, overt acts which used to be punished ascomponents of the crime of rebellion have beensevered therefrom by Republic Act No. 6968.The legal impediment to the application of Article48 to rebellion has been removed. After theamendment, common crimes involving killings,and/or destructions of property, even thoughcommitted by rebels in furtherance of rebellion,shall bring about complex crimes of rebellionwith murder/homicide, or rebellion with robbery,or rebellion with arson as the case may be.

To reiterate, before Article 135 was amended, a

higher penalty is imposed when the offenderengages in war against the government. "War"connotes anything which may be carried out inpursuance of war. This implies that all acts ofwar or hostilities like serious violence anddestruction of property committed on occasionand in pursuance of rebellion are componentcrimes of rebellion which is why Article 48 oncomplex crimes is inapplicable. In amendingArticle135, the acts which used to be componentcrimes of rebellion, like serious acts of violence,have been deleted. These are now distinctcrimes. The legal obstacle for the application ofArticle 48, therefore, has been removed. Ortegasays legislators want to punish these common

crimes independently of rebellion. Ortega citesno case overturning Enrile v. Salazar.

In People v. Rodriguez, 107 Phi l. 569, it washeld that an accused already convicted ofrebellion may not be prosecuted further forillegal possession of firearm and ammunition, a

violation of Presidential Decree No. 1866,because this is a necessary element or ingredientof the crime of rebellion with which the accusedwas already convicted.

However, in People v. Tiozon, 198 SCRA 368,it was held that charging one of illegalpossession of firearms in furtherance of rebellionis proper because this is not a charge of a

complex crime. A crime under the Revised PenalCode cannot be absorbed by a statutory offense.

I n People v. de Gracia, i tw a s r u l e d t h a t i l l e g a l possess ion o f f i rea rm in f u r t herance o f rebe l l i on under Pres iden t ia l Dec ree No. 1866 i s d i s t in c t f r o m t h e c r i m e o f

r e b e l l i o n u n d e r t h e Rev ised Penal Code and,there fo re , Ar t i c le 135 (2 )of the Rev ised Penal Code shou ld no t app ly .

The o f f ense o f i l l ega l possession o f f i r ea rm i s a m a l u m p r o h i b i t u m , i n

wh ich case , good fa i t h and absence o f c r im ina l i n ten t a re no t va l id defenses.

In People v. Lovedioro, an NPA cadre killed apoliceman and was convicted for murder. Heappealed invoking rebellion. The Supreme Courtfound that there was no evidence shown tofurther the end of the NPA movement. It heldthat there must be evidence shown that the actfurthered the cause of the NPA; it is not enough

to say it.

Rebellion may be committed even without asingle shot being fired. No encounter needed.Mere public uprising with arms enough.Article 135, as amended, has two penalties: ahigher penalty for the promoters, heads andmaintainers of the rebellion; and a lower penaltyfor those who are only followers of the rebellion.

Distinctions between rebellion and sedition

(1) As to nature

In rebellion, there must be taking up orarms against the government.

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

(2) As to purpose


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In rebellion, the purpose is alwayspolitical.

In sedition, the purpose may be politicalor social. Example: the uprising ofsquatters against Forbes park residents.The purpose in sedition is to go againstestablished government, not to

overthrow it.

When any of the objectives of rebellion ispursued but there is no public uprising in thelegal sense, the crime is direct assault of the firstform. But if there is rebellion, with publicuprising, direct assault cannot be committed.

Artic le 134-A. Coup d' etat

Elements1. Offender is a person or persons belonging to

the military or police or holding any publicoffice or employment;

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

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

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

The essence of the crime is a swift attack upon

the facilities of the Philippine government,military camps and installations, communicationnetworks, public utilities and facilities essentialto the continued possession of governmentalpowers. It may be committed singly orcollectively and does not require a multitude ofpeople. The objective may not be to overthrowthe government but only to destabilize orparalyze the government through the seizure offacilities and utilities essential to the continuedpossession and exercise of governmentalpowers. It requires as principal offender amember of the AFP or of the PNP organization ora public officer with or without civilian support.Finally, it may be carried out not only by force or

violence but also through stealth, threat orstrategy.

Q: Can there be a complex crime of coup detatwith rebellion?

A: Yes, if there was conspiracy between the

offender/s committing the coup detat and theoffenders committing the rebellion. Byconspiracy, the crime of one would be the crimeof the other and vice versa. This is possiblebecause the offender in coup detat may beperson or persons belonging to the military,national police or a public officer, whereasrebellion does not so require. Moreover, thecrime of coup detat may be committed singly,whereas rebellion requires a public uprising andtaking up arms to overthrow the duly constitutedgovernment. Since the two crimes are essentiallydifferent and punished with distinct penalties,there is no legal impediment to the application ofRPC Art. 48.

Persons liable for rebellion, insurrection or coupd' etat under Article 1351. The leaders

a. Any person who promotes, maintains orheads a rebellion or insurrection; or

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

2. The participants a. Any person who participates or executes

the commands of others in rebellion,insurrection or coup d' etat;

b. Any person not in the government

service who participates, supports,finances, abets or aids in undertaking acoup d' etat.

Article 136. Conspiracy and Proposal toCommit Coup d' etat, Rebellion orInsurrection

Conspiracy and proposal to commit rebellion aretwo different crimes, namely:

1. Conspiracy to commit rebellion; and

2. Proposal to commit rebellion.

There is conspiracy to commit rebellion whentwo or more persons come to an agreement torise publicly and take arms against governmentfor any of the purposes of rebellion and decide tocommit it.

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There is proposal to commit rebellion when theperson who has decided to rise publicly and takearms against the government for any of thepurposes of rebellion proposes its execution tosome other person or persons.

Article 137. Disloyalty of Public Officers orEmployees

Acts punished1. By failing to resist a rebellion by all the

means in their power;2. By continuing to discharge the duties of their

offices under the control of the rebels; or3. By accepting appointment to office under

them.

Offender must be a public officer or employee.

Article 138. Inciting to Rebellion orInsurrection

Elements1. Offender does not take arms or is not in

open hostility against the government;2. He incites others to the execution of any of

the acts of rebellion;3. The inciting is done by means of speeches,

proclamations, writings, emblems, bannersor other representations tending to the sameend.

Distinction between inciting to rebellion andproposal to commit rebellion1. In both crimes, offender induces another to

commit rebellion.2. In proposal, the person who proposes has

decided to commit rebellion; in inciting torebellion, it is not required that the offenderhas decided to commit rebellion.

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

Article 139. Sedition

Elements1. Offenders rise publicly and tumultuously;2. Offenders employ force, intimidation, or

other means outside of legal methods;

3. Purpose is to attain any of the followingobjects:a. To prevent the promulgation or

execution of any law or the holding ofany popular election;

b. To prevent the national government orany provincial or municipal government,

or any public officer from exercising itsor his functions or prevent the executionof an administrative order;

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

d. To commit, for any political or socialend, any act of hate or revenge againstprivate persons or any social classes;

e.

To despoil for any political or social end,any person, municipality or province, orthe national government of all itsproperty or any part thereof.

The crime of sedition does not contemplate thetaking up of arms against the governmentbecause the purpose of this crime is not theoverthrow of the government. Notice from thepurpose of the crime of sedition that theoffenders rise publicly and create commotion anddisturbance by way of protest to express theirdissent and obedience to the government or tothe authorities concerned. This is like the so-called civil disobedience except that the means

employed, which is violence, is illegal.

Persons liable for sedition under Article 1401. The leader of the sedition; and2. Other person participating in the sedition.

Q: Can coup detat be complexed with sedition?

A(Suggested): Yes. Coup detat and sedition areessentially different and distinctly punishedunder the RPC. Sedition may not be directedagainst the Government for it can be non-political in objective but coup detat is political inobjective for it is directed against theGovernment and led by persons/public officersbelonging to the military/national police. Art. 48may be applied.

A(Alternative): No, coup detat may not becomplexed with sedition. While their principaloffenders may be different, both crimes arepolitical in purpose and directed against theGovernment. The essence is the same and thus

constitute only one crime. When the two crimesare not distinct, Art. 48 does not properly apply.

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Article 141. Conspiracy to Commit Sedition

In this crime, there must be an agreement and adecision to rise publicly and tumultuously toattain any of the objects of sedition.

There is no proposal to commit sedition.

Article 142. Inciting to Sedition

Acts punished1. Inciting others to the accomplishment of any

of the acts which constitute sedition bymeans of speeches, proclamations, writings,emblems, etc.;

2. Uttering seditious words or speeches whichtend to disturb the public peace;

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

Elements

1. Offender does not take direct part in thecrime of sedition;2. He incites others to the accomplishment of

any of the acts which constitute sedition;3. Inciting is done by means of speeches,

proclamations, writings, emblems, cartoons,banners, or other representations tendingtowards the same end.

Only non-participant in sedition may be liable.

Considering that the objective of sedition is toexpress protest against the government and inthe process creating hate against public officers,any act that will generate hatred against the

government or a public officer concerned or asocial class may amount to Inciting to sedition.Article 142 is, therefore, quite broad.

The mere meeting for the purpose of discussinghatred against the government is inciting tosedition. Lambasting government officials todiscredit the government is Inciting to sedition.But if the objective of such preparatory actions isthe overthrow of the government, the crime isinciting to rebellion.

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

and Similar Bodies

Elements1. There is a projected or actual meeting of

Congress or any of its committees orsubcommittees, constitutional committees or

divisions thereof, or of any provincial boardor city or municipal council or board;

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

Article 144. Disturbance of Proceedings

Elements

1. There is a meeting of Congress or any of itscommittees or subcommittees, constitutionalcommissions or committees or divisionsthereof, or of any provincial board or city ormunicipal council or board;

2. Offender does any of the following acts:a. He disturbs any of such meetings;b. He behaves while in the presence of any

such bodies in such a manner as tointerrupt its proceedings or to impair therespect due it.

Article 145. Violation of ParliamentaryImmunity

Acts punished1. Using force, intimidation, threats, or frauds

to prevent any member of Congress fromattending the meetings of Congress or of anyof its committees or subcommittees,constitutional commissions or committees ordivisions thereof, or from expressing hisopinion or casting his vote;Elementsa. Offender uses force, intimidation,

threats or fraud;b. The purpose of the offender is to

prevent any member of Congress from:i. attending the meetings of the

Congress or of any of its committeesor constitutional commissions, etc.;

ii. expressing his opinion; oriii. casting his vote.

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

Elementsa. Offender is a public officer of employee;b. He arrests or searches any member of

Congress;c. Congress, at the time of arrest or

search, is in regular or special session;d. The member arrested or searched has

not committed a crime punishable underthe Code by a penalty higher thanprision mayor.


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Under Section 11, Article VI of the Constitution,a public officer who arrests a member ofCongress who has committed a crime punishableby prision mayor (six years and one day, to 12years) is not liable Article 145.

According to Reyes, to be consistent with the

Constitution, the phrase "by a penalty higherthan prision mayor" in Article 145 should beamended to read: "by the penalty of prisionmayor or higher."

Article 146. Illegal Assemblies

Acts punished1. Any meeting attended by armed persons for

the purpose of committing any of the crimespunishable under the Code;

Elementsa. There is a meeting, a gathering or group

of persons, whether in fixed place ormoving;

b. The meeting is attended by armedpersons;

c. The purpose of the meeting is to commitany of the crimes punishable under theCode.

2. Any meeting in which the audience, whetherarmed or not, is incited to the commission ofthe crime of treason, rebellion orinsurrection, sedition, or assault upon personin authority or his agents.

Elements

a. There is a meeting, a gathering or groupof persons, whether in a fixed place ormoving;

b. The audience, whether armed or not, isincited to the commission of the crime oftreason, rebellion or insurrection,sedition or direct assault.

Persons liable for illegal assembly1. The organizer or leaders of the meeting;2. Persons merely present at the meeting, who

must have a common intent to commit thefelony of illegal assembly.

If any person present at the meeting carries an

unlicensed firearm, it is presumed that thepurpose of the meeting insofar as he isconcerned is to commit acts punishable underthe Revised Penal Code, and he is considered aleader or organizer of the meeting.

The gravamen of the offense is mere assembly ofor gathering of people for illegal purposepunishable by the Revised Penal Code. Withoutgathering, there is no illegal assembly. Ifunlawful purpose is a crime under a special law,there is no illegal assembly. For example, thegathering of drug pushers to facilitate drugtrafficking is not illegal assembly because thepurpose is not violative of the Revised Penal

Code but of The Dangerous Drugs Act of 1972,as amended, which is a special law.

Two forms of illegal assembly(1) No attendance of armed men, but

persons in the meeting are incited tocommit treason, rebellion orinsurrection, sedition or assault upon aperson in authority. When the illegalpurpose of the gathering is to incitepeople to commit the crimes mentionedabove, the presence of armed men isunnecessary. The mere gathering forthe purpose is sufficient to bring aboutthe crime already.

(2) Armed men attending the gathering Ifthe illegal purpose is other than thosementioned above, the presence ofarmed men during the gathering bringsabout the crime of il legal assembly.

Example: Persons conspiring to rob abank were arrested. Some were withfirearms. Liable for illegal assembly, notfor conspiracy, but for gathering witharmed men.

Distinction between illegal assembly and illegalassociation

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

In illegal association, the basis is the formationof or organization of an association to engage inan unlawful purpose which is not limited to aviolation of the Revised Penal Code. It includesa violation of a special law or those againstpublic morals. Meaning of public morals:inimical to public welfare; it has nothing to dowith decency., not acts of obscenity.

Article 147. Illegal Associations

Illegal associations1. Associations totally or partially organized for

the purpose of committing any of the crimespunishable under the Code;


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

Persons liable

1. Founders, directors and president of theassociation;

2. Mere members of the association.

Distinction between illegal association and illegalassembly

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

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

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

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

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

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

Article 148. Direct Assault

Acts punished

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

Elements

a. Offender employs force or intimidation;

b. The aim of the offender is to attain anyof the purposes of the crime of rebellionor any of the objects of the crime ofsedition;

c. There is no public uprising.

2. Without public uprising, by attacking, byemploying force or by seriously intimidatingor by seriously resisting any person inauthority or any of his agents, whileengaged in the performance of officialduties, or on occasion of such performance.

Elements

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

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

c. At the time of the assault, the person inauthority or his agent is engaged in theactual performance of official duties, orthat he is assaulted by reason of thepast performance of official duties;

d. Offender knows that the one he isassaulting is a person in authority or hisagent in the exercise of his duties.

e. There is no public uprising.

The crime is not based on the materialconsequence of the unlawful act. The crime ofdirect assault punishes the spirit of lawlessnessand the contempt or hatred for the authority orthe rule of law.

To be specific, if a judge was killed while he washolding a session, the killing is not the directassault, but murder. There could be directassault if the offender killed the judge simplybecause the judge is so strict in the fulfillment of

his duty. It is the spirit of hate which is theessence of direct assault.

So, where the spirit is present, it is alwayscomplexed with the material consequence of theunlawful act. If the unlawful act was murder orhomicide committed under circumstance oflawlessness or contempt of authority, the crimewould be direct assault with murder or homicide,as the case may be. In the example of the judgewho was killed, the crime is direct assault withmurder or homicide.

The only time when it is not complexed is whenmaterial consequence is a light felony, that is,

slight physical injury. Direct assault absorbs thelighter felony; the crime of direct assault can notbe separated from the material result of the act.So, if an offender who is charged with directassault and in another court for the slightphysical Injury which is part of the act, acquittal


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or conviction in one is a bar to the prosecution inthe other.

Example of the first form of direct assault:

Three men broke into a National Food Authoritywarehouse and lamented sufferings of thepeople. They called on people to helpthemselves to all the rice. They did not even

help themselves to a single grain.

The crime committed was direct assault. Therewas no robbery for there was no intent to gain.The crime is direct assault by committing acts ofsedition under Article 139 (5), that is, spoiling ofthe property, for any political or social end, ofany person municipality or province or thenational government of all or any its property,but there is no public uprising.

Person in au thor i t y i s any person d i rec t l y ves ted w i th j u r i sd ic t i on , w he ther as an ind iv idua l o r as a member o f some cour t o r government co rpora t ion , board , o r

comm ission . A barangay cha i rman i s d e e m e d a p e r s o n i n a u t h o r i t y .

Agent of a person in authority is any personwho by direct provision of law or byelection or by appointment by competentauthority, is charged with the maintenanceof public order and the protection andsecurity of life and property, such as abarangay councilman, barrio policeman,barangay leader and any person who comesto the aid of a person in authority.

In applying the provisions of Articles 148 and151, teachers, professors, and persons charged

with the supervision of public or duly recognizedprivate schools, colleges and universities andlawyers in the actual performance of their dutiesor on the occasion of such performance, shall bedeemed a person in authority.

In direct assault of the first form, the stature ofthe offended person is immaterial. The crime ismanifested by the spirit of lawlessness.In the second form, you have to distinguish asituation where a person in authority or hisagent was attacked while performing officialfunctions, from a situation when he is notperforming such functions. If attack was done

during the exercise of official functions, the crimeis always direct assault. It is enough that theoffender knew that the person in authority wasperforming an official function whatever may bethe reason for the attack, although what mayhave happened was a purely private affair.

On the other hand, if the person in authority orthe agent was killed when no longer performingofficial functions, the crime may simply be thematerial consequence of he unlawful act: murderor homicide. For the crime to be direct assault,the attack must be by reason of his officialfunction in the past. Motive becomes importantin this respect. Example, if a judge was killedwhile resisting the taking of his watch, there is

no direct assault.

In the second form of direct assault, it is alsoimportant that the offended party knew that theperson he is attacking is a person in authority oran agent of a person in authority, performing hisofficial functions. No knowledge, no lawlessnessor contempt.For example, if two persons were quarreling anda policeman in civilian clothes comes and stopsthem, but one of the protagonists stabs thepoliceman, there would be no direct assaultunless the offender knew that he is a policeman.

In this respect it is enough that the offendershould know that the offended party wasexercising some form of authority. It is notnecessary that the offender knows what is meantby person in authority or an agent of onebecause ignorantia legis neminem excusat.

Article 149. Indirect Assault

Elements

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

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

3. Offender makes use of force or intimida

Documents

BAROPS_Crim2