Criminal Law 2: Title III (Arts 153-160) Suggested Question and Answers

CRIMES AGAINST PUBLIC ORDER

Chapter 5:  PUBLIC DISORDER

Art. 153 —Tumults and other disturbance of public orders; Tumultuous disturbance or interruption liable to cause disturbance.

1. When is the disturbance of public order deemed to be tumultuous? (2012 BAR)

The disturbance shall be deemed tumultuous if caused by more than three persons who are

armed or provided with means of violence.

2. Ladislao Bacolod fired a submachine gun during the town fiesta which wounded one Consorcia Pasinio. The Information was filed charging him of the crime of serious physical injuries thru reckless imprudence with the CFI of Cebu to which the defendant pleaded guilty.  On the same date, he was arraigned in another case for having caused a public disturbance upon the same facts which constitute the same basis of the indictment for serious physical injuries. Counsel for defendant moved to quash the second Information invoking double jeopardy, which the trial court granted. Did the trial court err?

YES. There can be separate crimes of physical injuries thru reckless imprudence and tumultuous disturbance caused by the single act of firing a submachine gun. The protection against double jeopardy is only for the same offense. While both Informations have one common element, e.g., defendant having fired a submachine gun, the two Informations do not pertain to the same offense: one charged him with physical injuries inflicted thru reckless imprudence punished under Art. 263 of the RPC, and the second accuses him of having deliberately fired the machine gun to cause a disturbance in the festivity or gathering, thereby producing panic among the people present therein, referring to Art. 153. Conviction for the first does not bar trial for the second. (People v. Bacolod, G.R. No. L-2578, 31 July 1951)

Art. 155 — Alarm and Scandals.

1. Defendant was indicted before the CFI of Iloilo for discharging a firearm at one Sixto Demaisip. He then moved to dismiss the Information as he claims the filing of Information for discharging of firearm has placed him in peril of double jeopardy as he had previously been charged with the offense of alarm and scandal in a complaint filed in the municipal court of Batad, Iloilo, upon the same facts which constitute the basis of the indictment for discharge of firearm. Is the defendant correct? (2012 BAR)

NO. For double jeopardy to attach there must be “identity of offenses”. It is evident that the offense of discharge of firearm is not the crime of alarm and scandal. Neither may it be asserted that every crime of discharge of firearm produces the offense of alarm and scandal. Although the indictment for alarm and scandal filed under Art. 155 (1) of the RPC and the information for discharge of firearm instituted under Art. 258 of the same Code are closely related in fact, they are definitely diverse in law.

Firstly, the two indictments do not describe the same felony - alarm and scandal is an offense against public order while discharge of firearm is a crime against persons. Secondly, the indispensable element of the former crime is the discharge of a firearm calculated to cause alarm or danger to the public, while the gravamen of the latter is the discharge of a firearm against or at a certain person, without intent to kill. (People v. Doriquez, G.R. Nos. L-24444-45, 29 July 1968)

Art. 156 — Delivering Prisoners from Jail.

1. Elements of Delivering Prisoners from Jail. (2014, 2015 BAR)

    1. There is a person confined in a Jail or penal establishment; and

    2. That the offender Removes there from such person, or Helps the escape of such person.

Art. 156 applies even if the prisoner is in a hospital or an asylum as it is considered an extension of the penal institution.

2. Commission of the crime of Delivering Prisoners from Jail. (2004, 2009 BAR)

Delivering prisoners from jail may be committed

in two ways:

    1. By removing a person confined in any jail or penal establishment – to take away a person from the place of his confinement, with or without the active cooperation of the person released.

    2. By helping such a person to escape – to furnish that person with the material means such as a file, ladder, rope, etc. which greatly facilitate his escape. (Alberto v. Dela Cruz, G.R.

No. L-31839, 30 June 1980)

3. What is the crime committed if the offender is a person who has custody over the person of the prisoner.

1. Conniving with or consenting to evasion (Art. 223, RPC) – if the public officer consents to evasion.

2. Evasion through negligence (Art. 224, RPC) – if the evasion of prisoner shall have taken place through negligence of the officer.

4. A, a detention prisoner, was taken to a hospital for emergency medical treatment. His followers, all of whom were armed, went to the hospital to take him away or help him escape. The prison guards, seeing that they were outnumbered, and that resistance would endanger the lives of other patients, deckled to allow the prisoner to be taken by his followers. What crime, if any, was committed by A's followers? Why? (2002 BAR)

They are liable for Delivering Prisoners from Jail under Art. 156 of the RPC. The crime is not only committed by removing the prisoner from an establishment that the prisoner is confined in but also by helping said person to escape “by other means,” such as by allowing the prisoner to be taken by those unauthorized to do so, such as in the case at bar.

5. To secure the release of his brother Willy, a detention prisoner, and his cousin Vincent, who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to issue an Order which would allow the two prisoners to be brought out of jail. At first, the Clerk refused, but when Chito gave her P50,000.00, she consented.

She then prepared an Order requiring the appearance in court of Willy and Vincent, ostensibly as witnesses in a pending case. She forged the judge’s signature, and delivered the Order to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in the company of an armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the two inmates unguarded for three minutes and provide them with an opportunity to escape. Thus, Willy and Vincent were able to escape. What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch Clerk of Court, Edwin, and the jail warden? Explain your answer. (BAR 2009)

The crime committed in this case are as follows:

a. Chito committed the crimes of – 

    1. Delivery of Prisoners from Jail (Art. 156, RPC) for working out the escape of prisoners Willy and Vincent; 

    2. Two counts of Corruption of Public Officials (Art. 212, RPC); and 

    3. Falsification of Public Documents, as a principal by inducement (Art. 172[1], RPC). 

b. Willy Committed the crime of Delivery of Prisoners from Jail (Art. 156, RPC) as a principal by indispensable participation if he was aware of the criminal plan of Chito to have them escape from prison and he did escape pursuant to such criminal plan; otherwise he would not be liable for said crime if he escaped pursuant to human instinct only. 

c. Vincent, being a prisoner serving sentence by final judgment, committed the crime of Evasion of Service of Sentence (Art. 157, RPC) for escaping during the term of his imprisonment. 

d. The Branch Clerk of Court committed the crimes of: 

    1. Direct Bribery (Art. 210, RPC) for accepting the P50,000.00 – in consideration of the Order she issued to enable the prisoners to get out of jail; 

    2. Falsification of Public Document for forgoing the judge‟s signature on said Order (Art. 171, RPC); 

    3. Delivery of Prisoners from Jail (Art. 156, RPC), as a co-principal of Chito by indispensable cooperation for making the false Order and forgoing the judge‟s signature thereon, to enable the prisoners to get out of jail; 

    4. Evasion of Service of Sentence (Art. 157, RPC); as a co-principal of Vincent by indispensable cooperation for making the false Order that enable Vincent to evade service of his sentence; 

e. Edwin, the jail guard who escorted the prisoner in getting out of jail, committed the crimes of – 

    1. Infidelity in the Custody of Prisoners, especially conniving with or consenting to Evasion for leaving unguarded the prisoners escorted by him and provide them an opportunity to escape (Art. 223, RPC); 

    2. Direct Bribery for receiving the P50,000.00 as consideration for leaving the prisoners unguarded and allowing them the opportunity to escape (Art. 210, RPC);

The jail warden did not commit nor incur a crime there being no showing that he was aware of what his subordinates had done nor of any negligence on his part that would amount to infidelity in the custody of prisoners.

Chapter 5:  EVASION OF SERVICE OF SENTENCE

Art. 157 — Evasion by Escaping During the Term of Sentence.

1. Elements of Evasion of Service of Sentence. (2009 BAR)

    1. Offender is a Convict by final judgment;

    2. He is Serving his sentence which consists in deprivation of liberty; and

    3. He Evades the service of his sentence by escaping during the term of his sentence.

2. On appeal, defendant-appellant questions the judgment rendered by the CFI of Manila finding him guilty of evasion of service of sentence under Art. 157. Defendant maintains that Art. 157 applies only in cases of imprisonment and not when the sentence imposed upon was destierro, as in his case. Is the defendant correct?

NO. Art. 157 must be understood to include not only deprivation of liberty by imprisonment but also by sentence of destierro. In the case of People v. Samonte, the Supreme Court held that "a person under sentence of destierro is suffering deprivation of his liberty.” And a person sentenced to suffer such penalty evades his service of sentence when he enters the prohibited area specified in the judgment of conviction. (People v. Abilong, G.R. No. L-1960, 26 Nov. 1948)

3. Adelaida Tanega failed to appear on the day of the execution of her sentence. On the same day, the judge issued a warrant for her arrest. She was never arrested. More than a year later, Tanega through counsel moved to quash the warrant of arrest, on the ground that the penalty had prescribed. Tanega claimed that she was convicted for a light offense and since light offenses prescribe in one year, her penalty had already prescribed. Is the motion meritorious?

NO. The penalty has not prescribed as she did not evade her service of sentence. Under Art. 93 of the RPC, the prescription of penalties “shall commence to run from the date when the culprit should evade the service of his sentence.” To come within the application of Art. 157, the culprit must evade one’s service of sentence by escaping during the term of his sentence. This must be so for by the express terms of the statute, a convict evades "service of his sentence" by "escaping during the term of his imprisonment by reason of final judgment." Indeed, evasion of sentence is but another expression of the term "jail breaking.” (Tanega v. Masakayan, G.R. No. L- 27191 28 Feb. 1967)

4. Manny killed his wife under exceptional circumstances and was sentenced by the RTC of Dagupan City to suffer the penalty of destierro during which he was not to enter the city. While serving sentence, Manny went to Dagupan City to visit his mother. Later, he was arrested in Manila.

a. Did Manny commit any crime?

b. Where should Manny be prosecuted? (1998 BAR)

a. YES. Manny committed the crime of evasion of service of sentence when he went to Dagupan City, which he was prohibited from entering under his sentence of destierro. A sentence imposing the penalty of destierro is evaded when the convict enters any of the place/places he is prohibited from entering under the sentence or come within the prohibited radius. Although destierro does not involve imprisonment, it is nonetheless a deprivation of liberty. (People v. Abilong, G.R. No. L-1960, 26 Nov. 1948)

b. Manny may be prosecuted in Manila or Dagupan City. In the case of Parulan v. Director of Prisons (G.R. No. L-28519, 17 Feb. 1968), the Court held that the crime of evasion of sentence under Art. 157 of the RPC is a continuing crime. Hence, the accused may be prosecuted by the court of either province where any of the essential ingredients of the crime took place.

Art. 157 — Evasion by Violation of Conditional Pardon.

1. While serving his sentence for the crime of abduction after being found guilty thereof by the CFI of Cavite, defendant-appellant was pardoned on Feb. 1923. Subsequently, he was tried for the crime of attempted robbery in band with physical injuries and also charged with a violation of the condition of his pardon with the CFI of Rizal. On appeal, defendant claims that it is the CFI of Cavite that has jurisdiction over the case. Is the defendant correct?

NO. It is the court wherein the crime committed, subsequent to the pardon, which has jurisdiction to determine whether the defendant has violated the conditions of the pardon. The proceeding under Art. 159 of the RPC is not a continuation or a part of the proceeding of the crime previous to the grant of pardon. It is a new proceeding, complete in itself, and independent of the latter. It refers to other subsequent facts which the law punishes as a distinct crime the penalty for which is not necessarily that remitted by the pardon. (People v. Martin, G.R. No. L-46432, 17 May 1939)

2. After serving two (2) years, five (5) months and twenty-two (22) days of the total duration of his sentence of prision mayor, a conditional pardon was granted to the appellant remitting three (3) years, seven (7) months, and eight (8) days. Subsequently, appellant was found guilty of the crime of estafa. By reason thereof, he was prosecuted under Art. 159 to which he pled guilty. The court then ordered his recommitment for the term remitted by the pardon. The accused appealed from this judgment. Is the appeal meritorious?

YES. By express provision of Art. 159 of the RPC, the prescribed penalty is prison correccional in its minimum period. The second part of said Article, which provides that the convict shall suffer the unexpired portion of his original sentence should the penalty or term remitted be higher than six (6) years, is clearly inapplicable in this case as the term remitted by the pardon is three (3) years, seven (7) months, and eight (8) days. (People v. Sanares, G.R. No. L- 43499, 11 Jan. 1936)

Chapter 7:  COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE

Art. 160 — Commission of another crime during service of penalty imposed for another offense.

1. What is the elements of Quasi-recidivism? (1991 BAR)

    1. That the offender was already Convicted by final judgment of one offense; and

    2. That he committed a new felony before beginning to serve such sentence or while serving the same.

2. Robbie and Rannie are both inmates of the National Penitentiary, serving the maximum penalty for robbery which they committed some years before and for which they have been sentenced by final judgment. One day, Robbie tried to collect money owed by Rannie. Rannie insisted that he did not owe Robbie anything, and after a shouting episode, Rannie kicked Robbie in the stomach. Robbie fell to the ground in pain, and Rannie left him to go to the toilet to relieve himself. 

As Rannie was opening the door to the toilet and with his back turned against Robbie, Robbie stabbed him in the back with a bladed weapon that he had concealed in his waist. Hurt, Rannie ran to the nearest “kubol” where he fell. Robbie ran after him· and, while Rannie was lying on the ground, Robbie continued to stab him, inflicting a total of 15 stab wounds. He died on the spot. Robbie immediately surrendered to the Chief Warden.

When prosecuted for the murder of Rannie, Robbie raised provocation and voluntary surrender as mitigating circumstances. The prosecution, on the other hand, claimed that there was treachery in the commission of the crime.

a. Is Robbie a recidivist, or a quasirecidivist?

b. Can the mitigating circumstances raised by Robbie, if proven, lower the penalty for the crime committed? (2018 BAR)

a. Robbie is considered a quasi-recidivist pursuant to Art. 160 of the RPC. At the time he stabbed Rannie which resulted in the latter’s death, he had been convicted by final judgment and had been serving sentence at the National Penitentiary. In quasi-recidivism, the first and second offenses need not be embraced in the same title of the RPC. A recidivist, on the other hand, requires that the crimes committed must be embraced in the same title of the RPC.

Because the killing of Rannie and the robbery, in which Robbie was previously convicted by final judgment, were not under the same title, Robbie cannot be considered a recidivist.

b. NO. If proven, the presence of the mitigating circumstances of lack of sufficient provocation and voluntary surrender would be of no consequence as quasi-recidivism, a special aggravating circumstance, cannot be offset by any ordinary mitigating circumstance. (People v. Macariola, GR No. L- 40757, 24 Jan. 1983)

3. The CFI of Rizal found the defendants guilty of the crime of murder and imposed upon them the penalty of death by reason of the existence of special aggravating circumstance of quasi-recidivism. On automatic review by the Supreme Court, the counsel of the defendants contends that the allegation of quasi-recidivism in the Information is ambiguous, as it fails to state whether the offenses for which the defendants were serving sentence at the time of the commission of the crime charged were penalized by the RPC, or by a special law. Is the argument of the counsel correct?

NO. It makes no difference, for purposes of the effect quasi-recidivism, under Art. 160 of the

Revised Penal Code, whether the crime for which an accused is serving sentence at the time of the commission of the offense charged, falls under said Code or under a special law (People v. Peralta, et. al., G.R. No. L-15959, 11 Oct. 1961). It is only the subsequent crime committed which is required to be a felony under the RPC.

4. Defendant-appellant, while serving sentence for the crime of homicide, killed one Sabas Aseo, for which the CFI of Manila found him guilty with the crime of murder, meting him the penalty of death. On appeal to the Supreme Court, appellant contends that the CFI erred in applying Art. 160 of the RPC as it is applicable only when the new crime which is committed by a person already serving sentence is different from the crime for which he is serving sentence. Is the defendant correct?

NO. The new offense need not be different or be of different character from that of the former offense. There is not the slightest intimation in the text of Art. 160 that said article applies only in cases where the new offense is different in character from the former offense for which the defendant is serving the penalty. Hence, even if he is serving sentence for homicide and was later found to be guilty of murder, Art. 160 applies. (People v. Yabut, G.R. No. 39085, 27 Sept. 1933)