crimlaw tips

8/12/2019 CrimLaw Tips

1/14

CRIMINAL LAW REVIEW TIPSProsecutor Victoria C. Garcia

15 March 2014

(1) HABITUAL DELINQUENCY an aggravating circumstance characterized by habituality (3 rdkind). If within ten(10) years from date of release or last prior conviction, accused commits the crimes of serious physical injuries, lessserious physical injuries, robbery, theft, estafa, falsification a third time or oftener.

(2)RECIDIVISM - one where a person whom at the time of his trial for one crime, shall have previously beenconvicted by final judgment of another crime embraced in the same title of this Code.Elements:(a)That the offender is on trial for an offense;(b)That he was previously convicted by final judgment of another crime;(c)That both the first and second offenses are embraced in the same title of the code;(d)That the offender is convicted of the second offense charged.In case of recidivism, there must be at least two (2) convictions. 1 conviction must be by conviction by fina

judgment. The second conviction must be for the second time for which he is on trial.

Recidivism is imprescriptible. There is no time limit between the first crime for which he has been convicted byfinal judgment and the second crime for which he is also convicted.

(3)REITERACION OR HABITUALITY one where the offender has been previously punished for an offense towhich the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.

Elements:(a)That the accused is on trial for an offense;(b)That he previously served sentence for another crime to which the law attaches an equal or greater penalty o

for two or more crimes to which it attaches a lighter penalty;(c)That he is also convicted of the new offense.Under the second element there are two situations. The first situation is that, he has already served out thesentence; he has already been punished for a crime. If it is only one crime it is necessary that the said crime mustcarry a penalty equal to or greater than the second crime. But if there are two crimes for which he had beenpreviously punished, it is necessary that they carry a lighter penalties than the new crime for which he is convicted.

Like recidivism, in reiteracion there must at least be two 2) convictions.But unlike recidivism, where there is aconviction by final judgment of the first crime, in case of reiteracion it is necessary that there has already been aservice of sentence.Q: A has been convicted of the crime of homicide. Convicted by final judgment, he was placed behind bars. Heserved out his sentence. Once out of prison, he committed forcible abduction. Homicide is punished by reclusiontemporal. Forcible abduction is now on trial. The penalty prescribed by law for forcible abduction is also reclusiontemporal. The judge found him guilty for forcible abduction. Can the judge consider reiteracion as an aggravatingcircumstance in imposing the penalty for forcible abduction?A:Yes because the penalty for the crime of homicide where he has already served out his sentence is equal to thepenalty for forcible abduction, both reclusion temporal. Therefore, reiteracion or habituality can be considered.


2/14

Q: B committed forcible abduction. He was convicted by final judgment. He served out his sentence. He is nowout of prison. Once out of prison, he committed falsification of public document. He is on trial for the saidfalsification of public document. The judge found him guilty beyond reasonable doubt. In imposing the penaltyfor falsification of public document, can judge consider reiteracion as an aggravating circumstance?A: Yes, because the penalty for forcible abduction is reclusion temporal, which is higher than the penalty forfalsification of public document committed by a private individual which is only prision correccional. Thereforereiteracion or habituality should be considered by the court in imposing the penalty for falsification of publicdocument.

Q:B committed falsification of public document. Convicted, served out the sentence. After service of sentence,he is out of prison; he engaged in a fight and killed his opponent. He is now on trial for homicide. The judgefound him guilty beyond reasonable doubt. Can the judge consider reiteracion as an aggravating circumstance?A:No because the crime for which he has served out his sentence carries a penalty lighter than that of the secondcrime. The law requires that if it is only one crime, it must carry a penalty equal to or greater than the secondcrime he committed.

Q:A slapped B. B filed a case for slight physical injuries against A. He was convicted and served out his sentencefor slight physical injuries which is arresto menor. Once out of prison, he was still mad at B. He deliberately caused

damage to the property of B. B now filed a case of malicious mischief against A. The judge found him guiltybeyond reasonable doubt for malicious mischief. Can the judge consider reiteracion as an aggravatingcircumstance?A:No because the crime of slight physical injuries which carries with it the penalty of arresto menor is lighter thanmalicious mischief which carries with it the penalty of arresto mayor. Therefore the judge cannot considerreiteracion as an aggravating circumstance. He was convicted of malicious mischief and placed behind bars.

Q:After service of sentence, he is now out of prison. Once out of prison, he was still mad at B. therefore he madesworn affidavits stating false statements against B. B filed a case of perjury against A. he is now on trial for thecrime of perjury. The judge found him guilty beyond reasonable doubt. Can the judge consider reiteracion as anaggravating circumstance?A:Yes, because the first two crimes, the penalties of which were already served out, carry lighter penalties thanthe third crime: slight physical injuries, arresto menor; malicious mischief arresto mayor. Therefore reiteracion canbe considered.

(3)QUASI-RECIDIVISM one where a person after having been convicted by a final judgment, shall commit afelony before serving out his sentence or while in the service of sentence. The maximum period shall be imposedIt is a special aggravating circumstance. The first crime may be any crime. The second crime must be a felony. Elements:(1) The crime specified should be serious physical injuries, less serious physical injuries, robbery, theft, estafa;(2)There should be at least three (3) convictions;(3)Each conviction must come within ten (10) years from the date of release or last conviction of the previous

crime.

Effect: Additional penalty shall be imposed in the maximum period being an aggravating circumstance.Limitation:The penalty committed for the crime plus additional penalty should not exceed thirty years.Q:A, while serving a final judgment, was found to be in possession of illegal drugs. Is he a quasi-recidivist?A:No, A is not a quasi-recidivist. The second crime is not a felony; it is a special penal law.


3/14

Q:But if reversed, say he was serving sentence for possession of illegal drugs and then inside the prison, he killeda co-inmate. May quasi-recidivism be considered?A: Yes, this time quasi-recidivism is considered. Penalty in the maximum period prescribed by law shall beimposed.

Q: A, charged and convicted of robbery, has served his sentence. Within ten (10) years from date of release, hecommitted theft. He served sentence and again released. Within ten (10) years he committed theft. The

judgment became final and executory. He served sentence again and was out of prison. Within ten (10) yearsfrom date of his last conviction, he again committed another theft. He is now in trial. Can recidivism and habituadelinquency both apply?A: Yes. Both may be considered because they have different effects on criminal liability of the offenderRecidivisms effect is on the theft committed. It may be offset by mitigating circumstances. Habitual delinquencyon the other hand, will give him additional penalty. He is a recidivistbecause at the time he served sentence forthe crime of theft, he was previously convicted by final judgment of robbery embraced within the same title of thecode. He is also a habitual delinquent, because within the ten (10) years from the date of his last release, hecommitted theft for the third time.

(4)COMPOUND CRIME is produced when a single act constitutes two or more grave or less grave felonies.Elements:(a)Offender performs single act;(b)Resulted to two or more less grave felonies.Basis:Singularity of act.Effect:Penalty for the most serious charge in its maximum period.

(5)COMPLEX CRIME PROPER when the offense is a necessary means to commit the other.Elements:(a)Two offenses committed;(b)First offense is a necessary means to commit the other;(c)Punished under the same statute.Effect:Penalty for the most serious charge in its maximum period.There is no estafa by falsification of private document. Whenever a private document is falsified, determine whatto charge. There must only be one charge. Damage is an essential element of both (estafa and falsification ofprivate document). There can be no twice recovery for damages.

If estafa cannot be committed without falsification, falsification is the correct charge, estafa is merely aconsequence. But, if estafa can be committed without falsifying, the correct charge is estafa. Falsification is onlyincidental.

(6)SPECIAL COMPLEX CRIME in reality, two or more crimes were committed but in the eyes of law only onecrime was committed. Law provides for the crimes that would be complexed.

(a)Robbery with Homicide A was robbing the house, in course of the robbery, the owner of the house wasawakened, A shot the owner.

(b)Kidnapping with Homicide- A kidnapped B, when B tried to escape, A shot B.


4/14

(c)Rape with Homicide A raped B, thereafter, A killed B.(7)CONTINUED CRIME, CONTINUOUS CRIME, DELITO CONTINUADO is one where the offende

impelled by a single criminal impulse, commits a series of overt acts in about the same time and about the sameplace violating one and the same provision of law.Basis: Singularity of impulse.Q: A, B, C, and D live in one compound. All are engaged in the business of selling rooster. One night, herecomes X. While they were sleeping, X took the rooster of A, then of B, then of C, then of D. How many crimeswill you file against X?A:Crime committed is one charge of theft. X, impelled by a single impulse, committed theft.

(8)CONTINUING CRIME OR TRANSITORY OFFENSE - this is more on Remedial Law, not in Criminal LawThe offender may be prosecuted in any court of the place where any of the elements of the crime has beencommitted.Q:A issued to B, a check in payment of his obligation in Manila. A deposited the BDO check in his depositarybank BPI. When BPI presented the check to BDO Caloocan, the check bounced. Where may the crime ofviolation of B.P. 22 be prosecuted?A:It may be prosecuted in any court of the place where the elements of the crime happened. However, when thecase is already filed in court, it cannot be filed elsewhere.

(9)PREVENTIVE IMPRISONMENT - the detention of accused while the case against him is on-going trial, eitherbecause the crime he committed is a non-bailable offense and evidence of guilt is strong; or the crime committedis a bailable offense but he does not have the funds.Can the period of preventive imprisonment be deducted in case of destierro? Yes, because destierro also involvesdeprivation of liberty and has a fixed duration of 6 months and 1 day to 6 years.

(10) SUBSIDIARY PENALTY - is a substitute penalty for fine and fine alone. Either the penalty of the court mustbe a fine or the convict must be insolvent. Absent such statement in the judgment, the convict cannot suffersubsidiary penalty. It is not a principal penalty nor an accessory penalty, but only a substitute penalty for fine.Rate has been amended by R.A. 10159 which states: "If the convict has no property with which to meet the finementioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at therate of one d y for e ch mount equiv lent to the highest minimum w ge r teprevailing in the Philippines at thetime of the rendition of judgment of conviction by the trial court

Subject to the following rules:(a) If the principal penalty imposed be prision correccional or arresto and fine, he shall remain under confinement

until his fine referred to in the preceding paragraph is satisfied, but his subsidiary imprisonment shall notexceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and nofraction or part of a day shall be counted against the prisoner.

(b)When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, ifthe culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if fora light felony.

(c)When the principal imposed is higher than prision correccional, no subsidiary imprisonment shall be imposedupon the culprit.


5/14

(d)If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty isof fixed duration, the convict, during the period of time established in the preceding rules, shall continue tosuffer the same deprivations as those of which the principal penalty consists.

(e)The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall notrelieve him, from the fine in case his financial circumstances should improve. (As amended by R.A. 5465, April21, 1969).

Subsidiary penalty cannot be imposed on the following instances:(a) If the judgment of the court did not impose fine as a penalty;(b)If the judgment of the court did not expressly state that in case of nonpayment of fine, the convict shall suffer

subsidiary penalty;(c) If the principal penalty that goes with fine exceeds prision correccional or higher than 6 years;(d)If the principal penalty that goes with fine does not have fixed duration;(e)If what the convict thinks to pay is not fine but damages and cost.

(11)INDETERMINATE SENTENCE LAWmodifies the imposition of penalty. It is applied both to RPC and speciapenal laws. Under the ISLAW, courts are mandated to fix a minimum term of sentence and maximum term ofsentence. When the convict has served the minimum term, he can be released for parole under conditions. Unde

parole, the convict is released, but under the supervision of a parole officer.

Objectives:(a)Uplift and redeem valuable human material.(b)Avoid unnecessary and excessive deprivation of liberty.PAROLE conditional release of the offender form the correctional institution after serving minimum sentence,and after showing that he has reformed. Note that parole does not extinguish criminal and civil liability.

Requisites:(a)He must be placed in prison jail to serve an indeterminate sentence penalty which exceeds 1 year;(b)He must have served minimum term of sentence;(c)The Board of Pardons and Parole (BOPP) found that his release is for the greater interest of society.The ISLAW applies to all offenders and all felonies, except to the following persons:(a)Those convicted of crimes punished by death or life imprisonment.(b)Those convicted of treason, conspiracy or proposal to commit treason.(c)Those convicted misprision of treason, rebellion, sedition or espionage.(d)Those convicted piracy.(e)Those who are habitual delinquents. [Recidivists are entitled to an indeterminate sentence. (People v

Jaranilla, G.R. No. 28547, Feb. 22, 1974)].

(f) Those who shall have escaped from confinement or evaded sentence. [A minor who escaped fromconfinement in the reformatory is entitled to the benefits of the law because confinement is not consideredimprisonment.(People v. Perez, 44 OG 3884) (Q6, 1991 Bar).](g)Those who having been granted conditional pardon by the President shall have violated the terms thereof.(h)Those whose maximum period of imprisonment does not exceed one year.(i) Those sentenced with a straight penalty are not to be given indeterminate sentence.Computation: Consider RPC or special penal laws.Violation of the RPC: Consider attendant mitigating or aggravating circumstance.(a)Get first the maximum term of sentence with all the attendant circumstances.


6/14

(b)Lower it by one degree. Do not consider anymore any attendant circumstance because minimum term is inthe sound discretion of the court.

Violation of a special penal law: Upon application of ISLAW, penalty should not be less than the minimum norexceed the maximum sentence prescribed by law.The only circumstance that can defeat an indivisible penalty is a privileged mitigating circumstance.

(12)PROBATION P.D. 968)- disposition by which a convict, after conviction and sentence, is released subject tothe conditions imposed by the court under the supervision of a probation officer.

Objectives:(a)To promote the correction and rehabilitation of the offender because he is placed under a personalized

treatment.(b)To provide an opportunity for the reformation of penitent offender.(c)To prevent further commission of crimes because the offender is placed under an individualized treatment.(d)To decongest courts of cases.(e)To save the Government from spending much-needed funds when the offender will be placed behind bars.Is probation a right or a privilege? It is a privilege. Thus, even if a convict is not among those disqualified ofprobation, the judge can still deny the application. This denial is not appealable. The grant or denial of applicationis dependent solely on the sound discretion of the judge.Disqualified to avail of probation:(a)Those whose maximum term of imprisonment is more than 6 years;(b)Those who have been convicted of subversion, crimes against national security and public order;(c)Those who have been convicted by final judgment of a crime to which the law attaches a penalty of

imprisonment of at least one month and/or fine of at least 200php;(d)Those who have already availed the benefit of probation;(e)Those who have perfected an appeal from judgment of conviction;(f) Those convicted of an election offense under the Omnibus Election Code;(g)Those convicted of drug trafficking or drug pushing;(h)Those who filed a malicious report that a person is committing a violation of the Anti-Money Laundering Law

and was convicted because of such malicious filing.

Application for probation:(a)Filed before the trial court which heard the case within the period of perfecting an appeal or within 15 days

from promulgation of judgment.(b)No application for probation shall be entertained when the offender has already perfected an appeal.

Likewise, the filing of an application for probation shall be a waiver of the right to file an appeal.

Thus, appeal and probation are mutually exclusive remedies. This is because the reason behind appeal and thereason behind probation are diametrically opposed. If a person appeals, it means that he is questioning thedecision of the court. He is insisting on his innocence. On the other hand, if a person applies for probation, itmeans that he is accepting the judgment of the court. He, however, does not want to serve his sentence behindbars.

Exceptions to rule that appeal prevents probation:


7/14

(a) If the appeal is only for the purpose of reducing the penalty to a probationable penalty; that the only reasonfor appealing is to question the high penalty imposed. However, if in the said appeal, the offender questionsthe merits of the case, he can no longer apply for probation.

(b)Under the Juvenile Justice and Welfare Act, if the offender is a minor, he can file an application for probationat any time even after appeal. It is only necessary that the penalty imposed upon him is a probationablepenalty.

Conditions imposed upon offender under probation:(a)Mandatory convict must appear before the probationary officer within 72 hours from the receipt of the

order; and report to the probationary officer once a month.(b)Discretionary/Special - dependent upon the sound discretion of the court. Usually involves engaging in a

vocation, not drinking alcohol, not going to house of ill-reputes. The only limitation on the discretionaryconditions is that they must not be so restrictive to the rights of the accused such that they will no longer be inconsonance with his freedom.

Period of probation:(a) If the penalty is imprisonment for one (1) year or less, then the period for probation is two (2) years. In all

other cases, it will be six (6) years.

(b)If the penalty is fine only with subsidiary imprisonment, the period should not be less than nor more than twicethe total number of days of subsidiary imprisonment taking into account the highest minimum wage rate atthe time of the rendition of the judgment.

Legal effect of probation:Its only legal effect is to suspend the execution of the sentence. It has nothing to dowith the civil aspect of the case. Insofar as the civil aspect is concerned, the convict can still appeal it.

The expiration of the period of probation does not ipso facto mean the termination of probation. Probation isonly terminated upon the issuance of the court of a final discharge of probation. This happens when after thelapse of the period of probation, the probation officer will file a Motion before the court with a recommendationstating that the convict has complied with the conditions imposed and therefore, he should be discharged. Thecourt will then issue a final discharge of probation. Only then will probation be terminated.

Effect of final discharge of probation: Final discharge of probation restores the civil rights lost or suspended byreason of conviction, including the penalty of fine. But, the offender should still pay the civil indemnity to theoffended party

TITLE 1: CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS(13)HUMAN SECURITY ACT OF 2007 R.A. No. 9372)

Under Section 3 of R.A. 9372, terrorism is committed when the offender commits any of the following actspunishable under the RPC or any of the following acts punishable under special penal laws:(a)Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);(b)Article 134 (Rebellion or Insurrection);(c)Article 134-a (Coup detat), including acts committed by private persons;(d)Article 248 (Murder);(e)Article 267 (Kidnapping and Serious Illegal Detention);(f) Article 324 (Crimes Involving Destruction);(g)P.D. No. 1613 (The Law on Arson);


8/14

(h)R.A. No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);(i) R.A. No. 5207, (Atomic Energy Regulatory and Liability Act of 1968);(j) R.A. No. 6235 (Anti-Hijacking Law);(k)P.D. No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974); and,(l) P.D. No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture

Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

If the offender commits any of the aforementioned crimes, thereby sowing and creating a condition widespreadand extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawfudemand, he is liable of terrorism and the penalty is forty (40) years imprisonment without the benefit of paroleunder the ISLAW. The maximum penalty of 40 years has to be totally served.

Q: Since A was acquitted of terrorism under RA 9372, can he still be prosecuted for his predicate crime ofkidnapping and illegal detention because he detained the children for more than 12 hours?A: No more, because under Section 49 of RA 9372, whenever a person has been charged of terrorism, or any actpunishable under R.A. 9372 based on a valid complaint or information, sufficient information and substance tobring about terrorism, and thereafter he is acquitted or the case was dismissed, he can no longer be subsequentlyprosecuted for any other felony or offense necessarily included in the crime charged. The predicate crimes are

necessarily included in terrorism. This is known as the Absorption Principlein Terrorism.Q: But what if in the same problem, while X was waiting for his demands to be given by the government, he saw agirl and with lewd design, he touched the private parts of the seven-year old girl. Therefore he committed aviolation of R.A. 7610 (Anti-Child Abuse Law). He was acquitted of terrorism. Can the state prosecute him forviolation of R.A. 7610?A: Yes, because it is not among the predicate crimes. It is not a crime necessarily included in the crime ofterrorism.

TITLE 2: CRIMES AGAINST FUNDAMENTAL LAW OF THE STATE(14) VIOLATION OF DOMICILE ARTICLES 128, 129, 130) is committed whenever a public officer o

employee enters into a dwelling of another unarmed with a search warrant.Different prohibited acts constituting violation of domicile:(a)By entering any dwelling against the will of the owner thereof; or(b)By searching papers or other effects found therein without the previous consent of such owner; or(c)By refusing to leave the premises, after having surreptitiously entered.ARTICLE128 VIOLATION OF DOMICILEThe first element requires that the offendermust be a public officer or employee acting under color of authorityA public officer or employee is said to be acting under color of authority if he has been vested with the authority

to implement a search warrant. Even if one is a public officer or employee, but did not act under color of

authority, he is only liable either for qualified trespass to dwelling or trespass to property because the public

officer or employee is acting in his private capacity.The second element requires that the entering upon the dwelling of another was not authorized by a judicial

order. The judicial order refers to a search warrant. He either enters the dwelling of another against the will of the


9/14

latter or searching for papers or other effects found therein without the consent of the owner, or after having

surreptitiously entered the dwelling, being discovered and asked to leave, he refuses to leave.

The third elements provides for the different modes of violation of domicile. These three (3) modes are separateand distinct from each other. Violation of one of them will bring about violation of domicile.

By entering any dwelling against the will of the owner thereof - there must be a prohibition, an opposition fromentering. It can either be an implied or expressed prohibition from entering. An example of an implied prohibitionis when the door is closed. It can be said that the owner is saying that No one can enter my house. An example

of an expressed prohibition is when the owner is inside the house and the officer knocks upon the door and upon

seeing the officer, the owner closes the door; or if there are signages: Do not enter, No entry. It does not mean entering without the consent. An entry without the consent is NOT an entry against the will.

When you say entry against the will, there must be an opposition or a prohibition from entering the dwelling.

By searching papers or other effects found therein without the previous consent of the owner - the consent of theowner matters. Even if the public officer or employee is allowed inside, the fact that he is allowed inside does not

mean that he is allowed to conduct the search. He must first ask for the previous consent of the owner beforeproceeding with the search. Without the previous consent of the owner to conduct the search, any search would

be a violation of domicile.

By refusing to leave the premises, after having surreptitiously entered the dwelling - it is his refusal to leave thepremises that will bring about the violation of domicile, NOT the surreptitiously entering. But it is required that

entering must be done surreptitiously. Surreptitious entering, means entering the dwelling secretly, candidly

Therefore, it is important that he must refuse to leave after being discovered and asked to leave in order to

amount to violation of domicile. Mere surreptitious entering will not bring about violation of domicile.Q: What if the door of the house was opened, a police officer without being armed with a search warrant, enteredthe door of the house and went up to the sala. The owner of the house saw him and asked him to leave, and heleft. Is he liable for violation of domicile?A: He is not liable for violation of domicile. When the door of the house is open, there is no prohibition; there isno opposition from entering. Anybody may enter even without a search warrant; since there is no prohibition oropposition from entering, violation of domicile cannot be committed under the first act. Under the second act, itcannot be committed because he did not conduct the search. The third act was also not done because theentering of the house was not done surreptitiously.

Q: What if in the same problem, the door of the house was opened, a public officer with the intent to conduct asearch warrant entered the house, when he was in the sala, the owner of the house saw him and told him to leave.He did not leave; he just stayed there and sat on the sofa. Is he liable for violation of domicile?A: He is not liable for violation of domicile. Under the first act, is entry against the will? NO, the door wasopened. Therefore, there was no opposition or prohibition from entering. Under the second act, he did notconduct a search. Under the third act, is the entering done surreptitiously? NO, because the door of the housewas opened; therefore, he did not violate any of the following acts amounting to violation of domicile.

But he did not leave the house, although the owner of the house asked him to leave. Is he liable? Yes. He is liable

for unjust vexation. Although he did not leave the house, he cannot be liable for violation of domicile because his

act does not constitute the acts prohibited by Article 128.


10/14

Q: The door of the house was closed, but it was not locked. A police officer without a search warrant opened thedoor, realizing it was not locked, entered the house and went up to the sala intending to conduct the searchBefore he could conduct the search, the owner of the house saw him, and told him to leave and he left. Is he liablefor violation of domicile?A:Yes. He is liable for violation of domicile. Even if he left the said place upon being told to do it, he is alreadyliable because his entry was against the will of the owner. The door was closed although it was not lockedTherefore, there was an implied prohibition from entering.

Q: What if the police officer knocked on the door of the house of X. X opened the door, upon seeing the publicofficers, X allowed them to enter. The police officer told X that they were looking for a stolen car stereo in theneighborhood; we are going to conduct a search in your house. X said, "No, you cannot conduct a search insidemy house.The police officers agreed and left the house. Are they liable for violation of domicile?A: They are not liable. It is not entry against the will. They did not conduct a search. The entry was not donesurreptitiously. It does not fall any of the acts, therefore, they are not liable for violation of domicile.

Q: In the same problem, when they told the owner that they were conducting a search for the stolen car stereo,the owner of the house said, No, you cannot conduct a search. There is nothing stolen inside my house,but the

police officers proceeded with the search.A: This time, they are liable for violation of domicile because they made a search without the previous consent ofthe owner under the second act of Art. 128.

Q: What if in the same problem, the owner of the house told the police officers, No you cannot conduct asearch, there is nothing stolen inside my house.The police officers obliged, they were going to leave the house,obeying the order of the owner. However, on their way out, before they could go out, they saw near the door, atable and on top of it, were drug paraphernalia, contraband. And so, they seized and confiscated the contrabandand then thereafter they left the house. Are they liable for violation of domicile? Are the pieces of evidenceconfiscated admissible against the owner?A: They are not liable of violation of domicile. When they were told not to conduct the search, they did notconduct the search and they were about to leave, therefore, not liable for violation of domicile. The confiscateddrug paraphernalia were admissible against the owner because they were contraband. They are illegal per se. Andthe police officers saw them without conducting the search, they saw them inadvertently. Even withoutconducting the search, the police officers would see contraband, narcotics, in their presence, in their plain view,they are mandated by law to seize and confiscate the same under the plain view doctrine.Q: What if a police officer was conducting a surveillance of X, a well-known drug pusher, so he was always withinthe vicinity of the house of X. One time, it was the birthday of X, the gate of the house was open, and the door ofthe house was opened. The police officer disguised himself as one of the guests and he entered the housetogether with the flow of the guests. His intention was to conduct a search. He was already about to conduct the

search when the owner of the house recognized him. The owner of the house came up to him. I know you, youare a police officer. Get out of my house right now!and thereafter the police officer left. Is he liable for violationof domicile?A: No, he is not liable for violation of domicile. Though the entry was done surreptitiously because he was indisguise, it was not against the will of the owner because the gates and the door were open. He did not conductthe search because the owner saw him before he could do so. And upon being discovered by the owner of thehouse, he left. Hence, there was no violation of domicile.

Under Articles 129 and 130, there is still violation of domicile despite the public officer or employee is armed with

a search warrant.


11/14

ARTICLE129 SEARCH WARRANTS MALICIOUSLY OBTAINED AND ABUSE IN THE SERVICE OFTHOSE LEGALLY OBTAINEDProhibited acts: violation of domicile is committed:(a)By procuring a search warrant without just cause;

A search conducted by virtue of a search warrant illegally procured without just cause is akin to a search

without a search warrant.

Q: What if the police officer was armed with a search warrant, he procured the search warrant illegally without justcause. The police had an enemy, B, and then he proceeded to a judge to issue a search warrant testifying underoath, that he is positive under his surveillance that B was in possession of an unlicensed firearm inside his houseThe judge believed the police and issued a search warrant against B. The police officer is now armed with a searchwarrant, and went to the house of B and showed it to B. B, upon reading the search warrant, knew it wasmaliciously procured. Should B allow the police officer to conduct the search?A: Yes. Even if the said search warrant was procured without just cause, the police officer must be allowed toenter and conduct the search, because of the so-called, Regularity of Performance of Dutyon the part of the

judge in issuing the said search warrant. He is armed with a search warrant issued by the judge and therefore, he

must allow him to enter his house and to conduct his search.

What now would be the remedy of the owner of the house? The owner of the house has the following remedies:i) He can file a motion to quash the said warrant;ii) He can file a motion to suppress the evidence that have been confiscated inside the house;iii) In addition to these motions, he can file a case of violation of domicile against the said public officer who

conducted the search; violation of domicile under Art. 129, because he procured the said search warrant

without just cause.

(b)By exceeding his authority or by using unnecessary severity in executing a search warrant legally procured; asearch warrant is valid only for a period of ten (10) days from the date of its issuance appearing on the search

warrant.Q: What if the said search warrant says that they could conduct the search, anytime of the day. They conductedthe search at night time.A: They are liable of violation of domicile under Article 129 because they exceeded the authority in the saidsearch warrant.A search warrant may only be conducted at day time; except when there is a specific order in the search warrantstating that it can be conducted at anytime of the day or night. Absent such order in the said search warrant, a

search warrant can only be implemented at day time.

Q: What if a search warrant was issued against X, the place to be search is located at 123 Valentino St. Theypolice went there. The house was owned not by X, but by Y. So they look for the house of X, the house of X was321 Valentino St. They presented a search warrant to X. X said, You cannot conduct a search inside my houseThe address in the search warrant is 123 Valentino St., while my address is 321 Valentino St.Nevertheless, theofficers conducted the search and they found the illegal items inside the house. Are the police officers liable ofviolation of domicile? Are the confiscated admissible evidence against the owner?A: The officers are liable for the violation of domicile. When they conducted the said search, on a house that hasa different address from that said search warrant, they exceeded their authority in the said search warrant. The


12/14

search warrant is so worded, expressly, as to the thing or place to be searched. The police officer cannot exercisediscretion. They have to follow what is stated in the search warrant. The moment they did not follow what is statedin the search warrant, they exceeded the authority.

In that case, when there is variance between what is stated in the search warrant and the actual facts of the case to

be searched, the have to go back to the judge that issued the said search warrant and they have to ask or move

for the amendment of the said search warrant.

Q: What if the public officer or employee exercised excessive severity in the implementation of the said searchwarrant? What if a search warrant is issued against X, the police officers went to the house of X, upon reachingthe house of X, they showed the warrant to X and he allowed them to enter. The search warrant said that theycould search for dangerous drugs, particularly, shabu. In searching for shabu, they turned upside down anddeliberately destroyed each and every furniture and appliance inside the house of X. When the wife of X saw this,she told the police officers to stop, but she was slapped twice. She then suffered less serious physical injuries. Indeliberately destroying the furniture and appliances of X, the public officers committed malicious mischief. Inslapping the wife, they committed less serious physical injuries. What crime/crimes would you file against thepolice officers?A: You have to file three (3) cases:i) Violation of domicile because they exercised excessive severity in the implementation of the said search

warrant. They need not destroy the property. They need not slap the wife. All of these are in excess of the

search warrant.

ii) Malicious mischief for destroying the furniture and appliances.iii) Less serious physical injuries for slapping the wife.Are you going to file all three 3) cases, or is it absorbed? Violation of domicile cannot absorb malicious mischiefnor less serious physical injuries. Although in reality, these two are merely the manifestations of the excess in the

implementation of the said search warrant, they cannot be absorbed, they cannot be complexed.Under Article 129, the liability for violation of domicile shall be in addition to the liability attaching to the offenderfor commission of any other crime. Therefore, if aside from violation of domicile, another crime is committed by

the police officers, they had to be charged with all these cases. Art. 129 prohibits the complexing of crimes. It also

prohibits the absorption of crimes, therefore all three (3) cases must be filed against the said police officers.

ARTICLE130 SEARCHING DOMICILE WITHOUT WITNESSES - by conducting a search in the absence ofthe owner of the house, or any member of his family, or two witnesses residing in the same locality.

Q: A search warrant was issued against X and the police officers went to the house of X. They showed the searchwarrant to X and they were allowed inside to conduct the search. In conducting the search, the search was

witnessed by two (2) barangay tanods who arrived with them in the house of X. In the conduct of the search, theytold the owner of the house, X, that his wife and his two children to remain in the sala while they conduct thesearch inside the bedroom of X. In conducting the search in the bedroom of X, the search was witnessed by two(2) barangay tanods and they found two (2) plastic sachets of shabu underneath the pillow inside the bedroom ofX. Are the police officers liable of violation of domicile under Article 130? Are the evidence seized admissibleagainst the owner?A: The police officers are liable of violation of domicile under Article 130. Article 130 provides for a hierarchy ofwitnesses who must be present in the conduct of the search. The law says it must witnessed by the owner of thehouse, it is only in the absence of the owner of the house that it must be witnessed by any member of his family. It


13/14

is only in the absence of the owner of the house or any member of his family that there must be two (2) witnessesresiding from the same locality.

In the problem, the owner of the house was there, the members of his family were there but, they were notallowed to witness the said search. Therefore, the said search was conducted in violation of Article 130 and anyevidence confiscated will be inadmissible against the owner of the house for being fruits of poisonous tree underthe exclusionary rule in Political Law.

In Galvante vs. Casimiro, the Supreme Court ruled that there is no such crime as illegal search. What is prohibitedis only the searching of the dwelling under Article 129. But, in case of search under vehicle or any other places,there is no such thing as illegal search. The remedy is to file an action for damages.

TITLE 3: CRIMES AGAINST PUBLIC ORDER(15)ARTICLE134 - REBELLION OR INSURRECTIONElements:

(a)That there must be public uprising, and taking arms against the Government; and(b)

That the purpose of the uprising or movement is either:i) to remove from the allegiance to said Government or its laws the territory of the Philippines or any part

thereof; or any body of land, naval or other armed forces; orii) to deprive the Chief Executive or Congress, wholly or partially, of any their powers or prerogatives.

The essence or the gravamen of rebellion is the armed public uprising against the Philippine Government. In case

of Rebellion, it can be committed by any person, or with the participation of the public.

THE LEADERS - Any person, who promotes, maintains or heads a rebellion or insurrection.THE PARTICIPANTS Any person who participates, or executes the commands of others in rebellion orinsurrection.

ARTICLE134-A COUP DETATElements:(a)That the offender is a person or persons belonging to the military or police or holding any public office o

employment;

(b)That it is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy orstealth;

(c)That the attack is directed against duly constituted authorities of the Republic of the Philippines, or anymilitary camp or installation, communication networks, public utilities or other facilities needed for the exercise

and continued possession of power;

(d)That the purpose of the attack is to seize or diminish state power.Committed by any person or persons belonging to the military or police or holding any public office or

employment, with or without civilian support, carried out singly or simultaneously anywhere in the Philippines for

the purpose of seizing or diminishing state power. The essence of coup detat is a swift attack directed against the

duly constituted authorities, with or without civilians.

Common crimes committed in furtherance of, incident to or in connection with rebellion are considered as

absorbed in the crime of Rebellion known as the Theory of Absorption in Rebellion.


14/14

In Enrile vs. Salazar, the Court ruled that although violation of P.D. 1829 is a violation of a special penal law, if it iscommitted in furtherance of Rebellion, it can still be absorbed in the crime of Rebellion. But in Gonzales vsAbaya, the Court said that for the theory of absorption to apply, it is necessary that both cases must be heard ormay be heard before the same civilian court; and that it is necessary that both crimes are punished by the samepenal statute. In this case, the coup detat must be heard in a civilian court, RTC of Makati, whereas the violationsof the articles of war can be heard only before a military court. Therefore, one cannot absorb the otherMoreover, violation of the articles of war is sui generis. It is a kind of its own. Nothing compares to it. Hence, itcannot be absorbed by any other crime.

It is necessary that there must be evidence shown in what way the said killing has promoted, fostered the idea of

the rebels. Absent any connection with the commission of the common crime and the furtherance of rebellion,

the appropriate charge is only murder, homicide, arson or physical injuries as the case maybe.

Rebellion is a continuing crime. As such, the NPA who rebelled against the Government, their one-time uprisingis sufficient, they are already considered as rebels because it is a continuing offense.

crimlaw tips

Documents