CRIMINAL LAW NOTES hospitals.

They are there to segregate the offenders

from the ―good‖ members of society.
A compilation of the notes and lectures of Pros.
Sagsago. It is supplemented by notes of Dean Carlos Penalty is to be imposed only upon the
Ortega and J.B.L Reyes. recommendation of social scientists, psychologists and
experts. The penalty is imposed on a case to case basis
BOOK ONE after examination of the offender by a panel of social
scientists which do not include lawyers as the panel
CRIMINAL LAW - branch of public substantive law would not want the law to influence their
which defines crimes, treats of their nature, and consideration.
provides for their punishment.
The emphasis is on the individual.
Nature of Criminal Law:
1. SUBSTANTIVE LAW - it defines the State‘s Eclectic or Mixed Theory
right to inflict punishment and the liability of the
offenders. This combines both positivist and classical thinking.
2. PUBLIC LAW - it deals with the relation of the Crimes that are economic and social and nature should
individual with the State. be dealt with in a positivist manner; thus, the law is
more compassionate. Heinous crimes should be dealt
THEORIES/PHILOSOPHIES IN CRIMINAL LAW with in a classical manner; thus, capital punishment.

Classical (Juristic) Theory Utilitarian Theory

The basis of criminal responsibility is human free will. A man is punished only if he is proved to be an actual
Man has the intellect to know what is legal from illegal. or potential danger to society.
He has the freedom to choose whether to obey the law
or violate it. If he opts to violate the law, then he must The primary purpose of the punishment under criminal
bear the consequences. Best remembered by the law is the protection of society from actual and
maxim ―An eye for an eye, a tooth for a tooth.‖ [Note: potential wrongdoers. The courts, therefore, in
If you want to impress the examiner, use the Latin exacting retribution for the wronged society, should
version – Oculo pro oculo, dente pro dente.] direct the punishment to potential or actual
wrongdoers, since criminal law is directed against acts
The purpose of penalty is retribution. Since he injured and omissions which the society does not approve.
the society, then society has the right to demand that Consistent with this theory, the mala prohibita principle
he must pay and suffer for what he did. which punishes an offense regardless of malice or
criminal intent, should not be utilized to apply the full
There is direct and mechanical proportion between harshness of the special law.
crime and penalty which penalty has been determined
before hand. Theory to Which the Philippines Adhere

The emphasis is the act itself, with little regard for the 1. Since the Revised Penal Code was adopted from
criminal. There is scant regard for the human element the Spanish Codigo Penal, which in turn was
of the crime. The law does not look into why the copied from the French Code of 1810 which is
offender committed the crime. Capital punishment is a classical in character, it is said that our Code is also
product of this kind of this school of thought. Man is classical. This is no longer true because with the
regarded as a moral creature who understands right American occupation of the Philippines, many
from wrong. So that when he commits a wrong, he provisions of common law have been engrafted
must be prepared to accept the punishment therefore. into our penal laws. The Revised Penal Code today
follows the mixed or eclectic philosophy. For
RPC is generally governed by this theory. example, intoxication of the offender is considered
to mitigate his criminal liability, unless it is
Positivist (Realistic) Theory intentional or habitual; the age of the offender is
considered; and the woman who killed her child to
The basis of criminal responsibility is the sum of the conceal her dishonor has in her favor a mitigating
social, natural and economic phenomena to which the circumstance. Besides, there are provisions which
actor is exposed. Man is essentially good but by reason are based on positivist school like provisions on
of outside factors or influences he is constrained to do minority, modifying circumstances, and provisions
wrong despite his volition to the contrary. on impossible crimes.
The purpose of penalty is reformation. There is great 2. For special laws, there are following the positivist
respect for the human element because the offender is theory such as the Law on Probation, Special
regarded as socially sick who needs treatment, not protection to children. Others follow the classical
punishment. Cages are like asylums, jails like
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school such as Heinous Crimes Law and the reprehensible and provide a penalty therefore. The
Dangerous Drugs Law. power includes the prerogative to set forth a
3. Jurisprudence usually applies utilitarian theory presumption of the commission of violation of penal
(e.g. accused of BP 22 – no danger to society, thus law and placed the burden on the accused to overcome
just pay fine). this presumption. As in the presumption of authorship
of theft from the possessor of stolen goods or
falsification.
CLASSICAL POSITIVIST MIXED/
ECLECTIC BASIS OF THE POWER TO ENACT PENAL LAWS
The basis of That man is This combines 1. Police Power of the State
criminal liability subdued both positivist 2. Right of the State to Self Preservation and Defense
is human fee occasionally by and classical
will and the a strange and thinking. LIMITATIONS IN THE ENACTMENT OF PENAL
purpose of the morbid LAWS
penalty is phenomenon
retribution. which constrains 1. Penal laws must be GENERAL IN
him to do wrong APPLICATION/equal application to all. Otherwise, it
in spite of or would violate the equal protection clause of the
contrary to his constitution.
volition. 2. Penal laws must not partake of the nature of
That man is That crime is Crimes that are an EX POST FACTO LAW.
essentially a essentially a economic and  Makes criminal an act done before the passage
moral creature social and social in nature of the law and which was innocent when done,
with an natural should be dealt and punishes such an act.
absolute free phenomenon, with in a  Aggravates a crime, or makes it greater than it
will to choose and as such, it positivist was, when committed.
between good cannot be manner, thus the  Changes the punishment and inflicts a greater
and evil, treated and law is more punishment than the law annexed to the crime
thereby placing checked by the compassionate. when committed.
more stress application of  Alters the legal rules on evidence, and
upon the effect abstract authorizes conviction upon less or different
or result of the principles of law testimony than the law required at the time of
felonious act and the commission of the offense.
done upon the jurisprudence  Assuming to regulate civil rights and remedies
man, the nor by the only in effect imposes penalty or deprivation of
criminal himself. imposition of a a right for something which when done was
punishment, lawful.
fixed and  Deprives a person accused of a crime some
determined a lawful protection to which he has become
priori; rather entitled, such as the protection of a
through the proclamation of amnesty.
enforcement of
individual 3. Penal laws must not partake of the nature of a
measures in bill of attainder.
each particular
case. BILL OF ATTAINDER - is a legislative act which
It has Heinous crimes inflicts punishment without trial. Its essence is the
endeavored to should be dealt substitution of a legislative act for a judicial
establish a with in a classical determination of guilt.
mechanical and manner, thus
direct capital 4. No person shall be held to answer for a
proportion punishment. criminal offense without due process of law (Art
between crime III, Sec 14[1])
and penalty.
There is a scant 5. Penal laws must not impose cruel and unusual
regard to the punishment nor excessive fines.
human element.
CONSTRUCTION OF PENAL LAWS
POWER TO ENACT PENAL LAWS 1. Application of the Principle of Pro Reo. Penal laws
are to be construed liberally in favor of the
Essentially legislative. The power is plenary. Congress accused and strictly against the government. All
may determine what acts or omissions are deemed doubts are to be resolved in favor of the accused.
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e.g. judgment. Therefore, the accused shall be
a. whether the offender clearly fall within the acquitted.
terms of the law. 2. If the case is on appeal, the judgment of
b. whether the act or omission is within the conviction shall be reversed, thus accused be
coverage of the law acquitted.
c. whether the conviction is for a lesser offense 3. In cases already decided and as to those
d. whether to impose a lesser penalty already serving sentence by final judgment, if
the convict is NOT a habitual delinquent, then
This is in consonance with the fundamental rule he will be entitled to a release UNLESS there is
that all doubts shall be construed in favor of the a reservation clause in the penal law that it will
accused and consistent with presumption of not apply to those serving sentence at the
innocence of the accused. This is peculiar only to time of the repeal. But if there is no
criminal law. reservation, those who are not habitual
delinquents even if they are already serving
Q: One boy was accused of parricide and was their sentence will receive the benefit of the
found guilty. This is punished by reclusion repealing law. They are entitled to release.
perpetua to death. Assuming you were the judge, Thus, the remedy is to file a petition for
would you give the accused the benefit of the habeas corpus.
Indeterminate Sentence Law (ISLAW)? The ISLAW
does not apply when the penalty imposed is life This does not mean that if they are not
imprisonment or death. Would you consider the released, they are free to escape. If they
penalty imposable or the penalty imposed, taking escape, they commit the crime of evasion of
into consideration the mitigating circumstance of sentence, even if there is no more legal basis
minority? to hold them in the penitentiary. This is so
because prisoners are accountabilities of the
If you will answer "no", then you go against the government; they are not supposed to step
Doctrine of Pro Reo because you can interpret the out simply because their sentence has already
ISLAW in a more lenient manner. Taking into been, or that the law under which they are
account the doctrine, we interpret the ISLAW to sentenced has been declared null and void.
mean that the penalty imposable and not the
penalty prescribed by law, since it is more If they are not discharged from confinement, a
favorable for the accused to interpret the law. petition for habeas corpus should be filed to
test the legality of their continued confinement
2. Application of the Principle of Prospective in jail.
Interpretation. Laws are to be interpreted as If the convict, on the other hand, is a habitual
applying only to those acts or omissions delinquent, he will continue serving the
committed after the effectivity of the law UNLESS sentence in spite of the fact that the law under
the law is favorable to the accused who is not a which he was convicted has already been
habitual delinquent and the law does not provide absolutely repealed. This is so because penal
for its non-retroactivity. laws should be given retroactive application to
favor only those who are not habitual
3. As to the RPC, in cases of conflict with official delinquents.
translation, the original Spanish text is controlling.
This does not apply to penal laws enacted after Q: A, a prisoner, learns that he is already
1932. overstaying in jail because his jail guard, B,
who happens to be a law student advised him
4. No interpretation by analogy. that there is no more legal ground for his
continued imprisonment, and B told him that
REPEAL OF PENAL LAWS he can go. A got out of jail and went home.
Was there any crime committed?
1. ABSOLUTE OR TOTAL REPEAL - when the
crime punished under the repealed law has been A: As far as A, the prisoner who is serving
decriminalized by the same. (e.g. Republic Act No. sentence, is concerned, the crime committed is
7363, which decriminalized subversion.) evasion of sentence.

CONSEQUENCES: As far as B, the jail guard who allowed A to

1. Cases pending in court involving the go, is concerned, the crime committed is
violation of the repealed law, the same shall infidelity in the custody of prisoners.
be dismissed, even though the accused may
be a habitual delinquent. This is so because 4. If convicted under old law, convict cannot
all persons accused of a crime are presumed demand compensation from the government,
innocent until they are convicted by final
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however, the law shall be applied retroactively 26, a fine whether imposed as a single or an
because the law is favorable to him. alternative penalty, if it exceeds P6,000.00 but is
not less than P 200.00, is considered a
correctional penalty. These two articles appear to
2. PARTIAL OR RELATIVE REPEAL - when the be inconsistent. So to harmonize them, the
crime punished under the repealed law continues Supreme Court ruled that if the issue involves the
to be a crime inspite of the repeal, so this means prescription of the crime, that felony will be
the repeal merely modified the conditions affecting considered a light felony and, therefore, prescribes
the crime under the repealed law. Thus, there within two months. But if the issue involves
might be increase or decrease of penalty, prescription of the penalty, the fine of P200.00 will
conditions for criminal liability either deleted or be considered correctional and it will prescribe
added, or the coverage of law is expanded or within 10 years. Clearly, the court avoided the
limited. collision between the two articles.

CONSEQUENCES: Significance: If a law which impliedly repeals a

1. Pending prosecution - if the repealing law is prior law is itself repealed, the repeal of the
more favorable to the offender, it shall be the repealing law will revive the original law UNLESS
one applied to him. So whether he is a otherwise provided. So the act or omission which
habitual delinquent or not, if the case is still was punished as a crime under the original law will
pending in court, the repealing law will be the de revived and the same shall again be crime
one to apply UNLESS there is a saving clause although during the implied repeal they may not
in the repealing law that it shall not apply to be punishable.
pending causes of action.
NOTE: These effects of repeal do not apply to self-
2. As to those already serving sentence in repealing laws or those which have automatic
jail - even if the repealing law is partial, then termination. An example is the Rent Control Law
the crime still remains to be a crime. Those which is revived by Congress every two years.
who are not habitual delinquents will benefit
on the effect of that repeal, so if the repeal is When there is a repeal, the repealing law
more lenient to them, it will be the repealing expresses the legislative intention to do away with
law that will henceforth apply to them. such law, and, therefore, implies a condonation of
the punishment. Such legislative intention does
3. EXPRESS - takes place when a subsequent law not exist in a self-terminating law because there
contains a provision that such law repeals an was no repeal at all.
earlier enactment.
e.g. Republic Act No. 6425 (The Dangerous Drugs REQUIREMENTS OF CRIMINAL LAW (Sir Sagsago)
Act of 1972), there is an express provision of 1. Principle of Legality – For an act or omission to
repeal of Title V of the Revised Penal Code. be punished, there must be an statutory
enactment declaring the act/omission to be a crime
Significance: If a law expressly repeals a prior and imposing a penalty therefor. All crimes are of
law is itself repealed, the repeal of the repealing statutory origin.
law will not survive the first law UNLESS otherwise
provided, so the act or omission will no longer be The principle declares that for any human conduct
penalized. to be considered as a criminal act, there must be a
specific statute or law declaring such conduct as a
4. IMPLIED - takes place when there is a law on a crime and providing for a penalty.
particular subject matter but is inconsistent with
the first law, such that the two laws cannot stand Any human conduct, no matter how evil or
together one of the two laws must give way. IT IS reprehensible it may be, can not subject the actor
NOT FAVORED. It requires a competent court to to punishment if there is no law punishing the act.
declare an implied repeal.
This is expressed in the maxim ―Nullum crimen
It is the earlier that will give way to the later law noella pena sine legi‖.
because the later law expresses the recent
legislative sentiment. So you can have an implied This principle is the opposite of ―Common Law
repeal when there are two inconsistent laws. If the Crimes‖ (often called ―Court Declared/Created
two laws can be reconciled, the court shall always Crimes‖).
try to avoid an implied repeal. For example, under
Article 9, light felonies are those infractions of the a. Nullum crimen, nulla poena sine lege -
law for the commission of which a penalty of There is no crime when there is no law
arresto mayor or a fine not exceeding P200.00 or punishing the same. This is true to civil law
both is provided. On the other hand, under Article countries, but not to common law countries.
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b. There are no common law crimes in the from the correctional code of Del Pan. So it was him
Philippines or those acts or omission declared who formulated or paraphrased this provision making it
by courts to be crimes because they violate simpler and more understandable to Filipinos because
good customs, principles, precepts or public at that time, there were only a handful who understood
morals. Spanish.
c. For an omission to be punishable, there must
be a law directing the doing of an act so that Code of Crimes by Guevarra
he who claims to have been injured by the During the time of President Manuel Roxas, a
omission cannot rely on a duty based solely on code commission was tasked to draft a penal code that
humanity. will be more in keeping with the custom, traditions,
d. The principle is observed in the Philippines in traits as well as beliefs of the Filipinos. During that
that, under Article 5, it is the duty of the court time, the code committee drafted the so-called Code of
to dismiss or acquit the accused charged with Crimes. This too, slept in Congress. It was never
an act or omission not punished by any law, enacted into law. Among those who participated in
and to recommend that the act or omission be drafting the Code of Crimes was Judge Guellermo
made the subject of a Penal Legislation. Guevarra.

Since that Code of Crimes was never enacted

2. Publication of Penal Laws in the Official Gazette as law, he enacted his own code of crimes. But it was
or news paper of general circulation (Ma‘am Lulu – the Code of Crimes that was presented in the Batasan
15 day publication shall not be reduced). This is as Cabinet Bill no. 2. Because the code of crimes
compliance with due process or fairness. Once prepared by Guevarra was more of a moral code than a
there is publication, there is constructive notice. penal code, there were several oppositions against the
Ignorance of the law, excuses no one from code.
compliance therewith. The liability does not
depend on the actual knowledge of the law. Proposed Penal Code of the Philippines
Through Assemblyman Estelito Mendoza, the
DEVELOPMENT OF CRIMINAL LAW IN THE UP Law Center formed a committee which drafted the
PHILIPPINES Penal Code of the Philippines. This Penal Code of the
Philippines was substituted as Cabinet Bill no. 2 and
Code of Kalantiao this has been discussed in the floor of the Batasang
If you will be asked about the development of Pambansa. So the Code of Crimes now in Congress
criminal law in the Philippines, do not start with the was not the Code of Crimes during the time of
Revised Penal Code. Under the Code of Kalantiao, President Roxas. This is a different one. Cabinet Bill
there were penal provisions. Under this code, if a man No. 2 is the Penal Code of the Philippines drafted by a
would have a relation with a married woman, she is code committee chosen by the UP Law Center, one of
penalized. Adultery is a crime during those days. Even them was Professor Ortega. There were seven
offending religious things, such as gods, are penalized. members of the code committee. It would have been
The Code of Kalantiao has certain penal provisions. enacted into law it not for the dissolution of the
The Filipinos have their own set of penology also. Batasang Pambansa dissolved. The Congress was
planning to revive it so that it can be enacted into law.
Spanish Codigo Penal
When the Spanish Colonizers came, the Special Laws
Spanish Codigo Penal was made applicable and During Martial Law, there are many
extended to the Philippines by Royal Decree of 1870. Presidential Decrees issued aside from the special laws
This was made effective in the Philippines in July 14, passed by the Philippine Legislature Commission. All
1876. these special laws, which are penal in character, are
part of our Penal Code.
Who is Rafael Del Pan?
He drafted a correctional code which was after
the Spanish Codigo Penal was extended to the
Philippines. But that correctional code was never SOURCES OF PENAL LAWS IN THE PHILIPPINES
enacted into law. Instead, a committee was organized (Sir Sagsago)
headed by then Anacleto Diaz. This committee was the 1. The Revised Penal Code (Act No 3815) effective on
one who drafted the present Revised Penal Code. Jan 1, 1932.
a. Principally based on the Spanish Penal Code of
The present Revised Penal Code 1887, however some crimes are based on
When a committee to draft the Revised Penal American concepts such as perjury, libel,
Code was formed, one of the reference that they took malversation.
hold of was the correctional code of Del Pan. In fact, b. Original text was Spanish and translated into
many provisions of the Revised Penal Code were no English.
longer from the Spanish Penal Code; they were lifted
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c. Inadequate to meet crimes arising from or b. US exercises exclusive jurisdiction over US
related to modern technology such as personnel with regard to offenses relating
computer-related offenses as hacking. to the security of the US punishable under
d. Many provisions have repealed and/or the law of US, but not under the laws of
amended such as provisions on dangerous RP
drugs, gambling, provisions involving minor c. US shall have primary right to exercise
offenders. jurisdiction over US personnel subject to
e. Consists of 2 major parts known as Book I and military of the US in rel to:
Book II. The first deals with criminal liability in c.1. Offenses solely against the property
general and the principles concerning or security of the US or offenses solely
penalties. Book II enumerates and defines the against the property or person of US
specific crimes and provides for their specific personnel;
penalties. c.2. Offenses arising out of any act or
mission done in performance of official
2. Special Laws – refers to those penal laws other duty.
than the RPC. 2. Those exempt by reason of Principles Of
a. Those of National Application Public International Law
i. Those Passed by Congress e.g.
1. Acts – those passed during the  sovereigns and heads (chiefs) of foreign
American Regime states whether on official or personal visit,
2. Commonwealth Acts – those passed including members of their personal
during the commonwealth period (spouse, children) or official family (those
(1936-1946) who accompany the heads of state)
3. Republic Acts – during the time the
Philippines became a republic (since Functional Immunity – because they are
1946) performing state functions
4. Batas Pambansa – passed by the
Batasang Pambansa during Martial Personal Immunity – because of their
Law. personal circumstances.
.
ii. Those passed during Martial Law by the  Ambassadors, ministers plenipotentiary,
President known as Presidential Decrees ministers resident, and charges d‘afaires
iii. Those passed by administrative bodies (foreign delegates to international
and are referred to as Administrative conventions including members of their
Penal Circulars or rules and regulations. official retinue or entourage). They can
avail only of functional immunity.
b. Those of Local Application – city or municipal
ordinances N.B. Consuls are not diplomatic officers.
This includes consul general, vice-consul
CHARACTERISTICS OF CRIMINAL LAW or any consul or other commercial
representatives in a foreign country, who
1. GENERALITY are therefore not immune to the operation
or application of the penal law of the
―Penal laws and those of public security and safety foreign state where they are assigned.
shall be obligatory upon all who live or sojourn in Consuls are subject to the penal laws of
Philippine territory.‖ (Art 14, NCC) In other words, the country where they are assigned.
it applies to all persons within the country
regardless of their race, belief, sex, or creed. This It has no reference to territory.
answers the question: who are bound by the law? Whenever you are asked to explain this, it
To whom is the penal law applicable? They may be does not include territory. It refers to
permanent or temporary residents or are transients persons that may be governed by the
like tourists. penal law.

EXCEPTIONS: 3. Those exempt by Laws of Preferential

1. Those exempt by reason Treaty Stipulations Application
e.g. RP-US Accord, signed on Feb 10, 1998,
Phils agreed that:  Constitution – Immunity granted to
a. US shall have a right to exercise within the President during his term of office and
Phils all criminal and disciplinary parliamentary immunity to members of
jurisdiction conferred on them by the Congress
military of the US over US personnel in RP  RA 75 – foreign resident, diplomatic and
consular representatives IF foreign
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country also grants the same to Filipino islands. As for our territorial seas, these are
diplomatic or consular representatives. more defined according to the Jamaica
This includes domestic servants of Convention on the Law of the Seas, concluded
ambassadors provided registered with the in 1982, in which the Philippines is a signatory.
DFA.
Q: If a foreign merchant vessel is in the center
It is not applicable when the foreign lane and a crime was committed there, under
country adversely affected does not the International Law Rule, what law will
provide similar protection to our apply?
diplomatic representatives. PRINCIPLE OF
RECIPROCITY. A: The law of the country where that vessel is
registered will apply, because the crime is
2. TERRITORIALITY deemed to have been committed in the high
seas.
GENERAL RULE: Penal laws are applicable or Under the Archipelagic Rule as
enforceable only within the limits of the territorial declared in Article 1, of the Constitution, all
jurisdiction of the authority which enacted the law. waters in the archipelago regardless of
Thus, ordinances are enforceable only within the breadth width, or dimension are part of our
territorial limits of the city/municipality which national territory. Under this Rule, there is no
enacted them, while laws of national application more center lane, all these waters, regardless
are enforceable only within Philippine territory. of their dimension or width are part of
Philippine territory.
Intraterritorial Application – refers to the So if a foreign merchant vessel is in
application of the RPC within the Philippine the center lane and a crime was committed,
territory. the crime will be prosecuted before Philippine
courts.
In the intraterritorial application of the RPC, Article
2 makes it clear that it does not refer only to c. Up to 24 miles from the base of the territorial
Philippine archipelago but it also includes the sea for purposes of enforcing the Tariff and
atmosphere, interior waters and maritime zone. Customs Law
So whenever you use the word territory, do not d. Within the 200 miles of the Exclusive Economic
limit this to land area only. Zone for purposes of protecting the economic
wealth
As far as jurisdiction or application of the RPC over e. AERIAL JURISDICTION - the jurisdiction over
crimes committed on maritime zones or interior the atmosphere.
waters, the Archipelagic Rule shall be observed.
So the three-mile limit on our shoreline has been Three Theories on Aerial Jurisdiction:
modified by the rule. Any crime committed in 1. OPEN SPACE THEORY - that the
interior waters comprising the Philippine atmosphere over the country is free and
archipelago shall be subject to our laws although not subject to the jurisdiction of the
committed on board a foreign merchant vessel. subjacent state except for the protection
of its national security and public order.
A vessel is considered a Philippine ship only when
it is registered in accordance with Philippine laws. Under this theory, if a crime is committed
Under international law, as long as such vessel is on board a foreign aircraft at the
not within the territorial waters of a foreign atmosphere of a country, the law of that
country, Philippine laws shall govern. country does not govern unless the crime
affects the national security.
Thus:
a. Within the bodies of land - TERRITORIAL / 2. RELATIVE THEORY - the subjacent state
TERRESTRIAL JURISDICTION exercises jurisdiction only to the extent
b. Only within the fluvial or maritime territory as that it can effectively exercise control
defined in the constitution - FLUVIAL thereof.
JURISDICTION
Under this theory, if a crime was
Archipelago Doctrine Or Archipelagic committed on an aircraft which is already
Rule. Under this doctrine, we connect the beyond the control of the subjacent state,
outmost points of our archipelago with straight the criminal law of that state will not
baselines and waters enclosed thereby as govern anymore. But if the crime is
internal waters. The entire archipelago is committed in an aircraft within the
regarded as one integrated unit instead of atmosphere over a subjacent state which
being fragmented into so many thousand
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exercises control, then its criminal law will foreign vessels. However, in times of
govern. war, enemy vessels are those owned
by nationals of the enemy country.
3. ABSOLUTE THEORY - the subjacent state
has complete jurisdiction over the  This applies if the Phil ship is (1) in
atmosphere above it subject only to the international waters or high seas,
innocent passage by aircraft of foreign and (2) in the territorial waters of a
country. foreign country. But in the latter case,
under the principle of comity among
Under this theory, if the crime is states, the foreign state is given
committed in an aircraft, no matter how priority to exercise its jurisdiction. If it
high, as long as it can establish that it is does not, then Phil penal laws will
within the Philippine atmosphere, apply. If the ship is in Philippine
Philippine criminal law will govern. This is water, all crimes committed on board
the theory adopted by the Philippines. are triable by Phil courts under Phil.
penal laws by virtue of the Principle of
EXCEPTIONS: Territoriality.

a. Principle of Ex Territoriality in Rules as to crimes committed on board

International Law – penal laws apply to Foreign Merchant Vessels which are in
offenses committed within the premises of the the territorial waters of another state:
Philippines which are considered extensions of
Philippine Territory. French Rule (Flag or Nationality
Rule) - the stress is on the nationality of
b. Principle of Extraterritoriality under the vessel.
Article 2, RPC (binding on crimes even
committed outside the Phils.) GENERAL RULE: Crimes are triable by the
courts of the country which owns the
1. Offenses committed while on a Philippine vessel.
ship or airship
EXCEPTION: Crimes affect the security,
REQUISITES peace and order of the host country.
a. Ship or airship must not be within the
territorial jurisdiction of another English/American/Anglo-Saxon Rule
country (Territoriality Principle or Situs of the
b. Ship/airship must be registered in the Crime Rule) - strictly enforces the
Phils. territoriality of criminal law or the place
where the vessel is.
 Philippine ship or airship – must be
understood as that which is registered GENERAL RULE: Crimes are triable by the
in the Philippine Bureau of Customs. courts of the foreign country where a
foreign vessel is within its jurisdiction.
 This applies only to commercial ships/
planes which may be owned by EXCEPT: Crime affects only the internal
government or private person for management of the vessel in which case it
commercial or private purposes for as is subject to the penal law of the country
long as registered in the Phils. where it is registered.
 In the Phils, we follow the English
As to warship/war planes, all crimes Rule.
committed on board warships and war
planes of the Philippines are subject  Do Phil penal laws apply to crimes
to Phil. Penal laws by virtue of the committed on board foreign vessels
principle of public international law to which are within Phil waters?
the effect that they are extensions of
the territory which owns them a. NO if the vessel is a warship
b. YES if the vessel is unregistered
 The nationality of the vessel as a Phil or is a pirate ship
ship/ airship is determined by its c. If a merchant vessel
registration in accordance with Phil (1) YES if the Phil is the port of
laws(nationality test) and not by the destination (under the principle
nationality of the owners (control test) of territoriality) UNLESS it
. All others registered elsewhere are pertains merely to the internal
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management/discipline (English (2) When the crime is committed in a
Rule) war vessel of a foreign country, because
war vessels are part of the sovereignty of
(2) NO if the vessel is merely the country to whose naval force they
passing in transit, UNLESS the belong.
offense affects the security,
peace and order of the Phil. Q: A vessel is not registered in the
Philippines. A crime is committed outside
Phil ship Foreign ship Philippine territorial waters. Then the
In Phil Out Phil In Phil Out Phil vessel entered our territory. Will the
Territorialit Extra- RPC: -- French: Revised Penal Code apply?
y Territoriality unregistere nationality
-commercial d/ Exc A: Yes. Under the old Rules of Criminal
ship pirate ship affects Procedure, for our courts to take
-if in a) High security, cognizance of any crime committed on
Seas or b) NOT RPC: peace & board a vessel during its voyage, the
territorial -warship order vessel must be registered in the
waters of Philippines in accordance with Philippine
foreign RPC English: laws.
country [(b) (territorialit Territoriali Under the Revised Rules of Criminal
is subj to y) ty Procedure, however, the requirement that
principle of -merchant Exc. the vessel must be licensed and registered
comity,i.e. vessel internal in accordance with Philippine laws has
foreign -Phil is been deleted from Section 25, paragraph c
country given point of of Rule 110 of the Rules of Court. The
priority to destination intention is to do away with that
exercise requirement so that as long as the vessel
jurisdiction] NOT RPC is not registered under the laws of any
-merchant country, our courts can take cognizance of
(extraterritori vessel the crime committed in such vessel.
ality is -passing in More than this, the revised provision
applicable in transit added the phrase ―in accordance with
(b) if the Exc. Affects generally accepted principles of
foreign security, International Law‖. So the intention is
country peace & clear to adopt generally accepted
adopts French order principles of international law in the
Rule matter of exercising jurisdiction over
Exc. affects crimes committed in a vessel while in the
security, course of its voyage. Under international
peace & order law rule, a vessel which is not registered
in accordance with the laws of any country
is considered a pirate vessel and piracy is
Principle of a crime against humanity in general, such
PIL that wherever the pirates may go, they
-warship can be prosecuted.
Prior to the revision, the crime would not
have been prosecutable in our court. With
Looking at the second column, it can be the revision, registration is not anymore a
seen that there are two situations where requirement and replaced with generally
the foreign country may not apply its accepted principles of international law.
criminal law even if a crime was Piracy is considered a crime against the
committed on board a vessel within its law of nations.
territorial waters and these are: In your answer, reference should be made
to the provision of paragraph c of
(1) When the foreign country in whose Section15 of the Revised Rules of Criminal
territorial waters the crime was committed Procedure. The crime may be regarded as
adopts the French Rule, which applies only an act of piracy as long as it is done with
to merchant vessels, except when the ―intent to gain‖.
crime committed affects the national
security or public order of such foreign  Foreign Merchant Vessel in Transit:
country. possession of dangerous drugs is NOT
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punishable, but use of the same is those having to do with the discharge of
punishable. their duties in a foreign country. The
 Foreign Merchant Vessel NOT in functions contemplated are those, which
Transit: Mere possession of dangerous are, under the law, to be performed by
drugs is punishable. the public officer in the Foreign Service of
the Philippine government in a foreign
Q: A crew member of a foreign vessel country.
which docked in Manila Bay was found in
possession of ten kilos of shabu. Is he EXCEPTION: RPC governs if the crime
liable under our laws? was committed within the Philippine
Embassy or within the embassy grounds in
A: NO if the vessel is merely in transit, a foreign country. This is because
unless he sniffs the shabu embassy grounds are considered an
YES if the Phil is the port of extension of sovereignty.
destination
Illustration:
2. Forging or counterfeiting any coin or
currency note of the Philippines or A Philippine consulate official who is
obligations and securities issued by the validly married here in the Philippines and
Government of the Philippines who marries again in a foreign country
cannot be prosecuted here for bigamy
Reason: to protect the monetarial system because this is a crime not connected with
of the country his official duties. However, if the second
marriage was celebrated within the
Note that the act of forging/counterfeiting Philippine embassy, he may be prosecuted
maybe done in a foreign country and the here, since it is as if he contracted the
actors maybe foreigners. marriage here in the Philippines.

If forgery was committed abroad, it must Q: A consul was to take a deposition in a

refer only to Phil coin, currency note, or hotel in Singapore. After the deposition,
obligations and securities. the deponent approached the consul‘s
daughter and requested that certain parts
3. Introduction into the Philippines of the of the deposition be changed in
above-mentioned obligations and consideration for $10,000.00. The
securities daughter persuaded the consul and the
latter agreed. Will the crime be subject to
4. While being public officers or employees, the Revised Penal Code? If so, what
an offense is committed in the exercise of crime or crimes have been committed?
their functions, like:
A: Yes. Falsification. Normally, the taking
a. Direct Bribery (A210) of the deposition is not the function of the
b. Indirect Bribery (A211) consul, his function being the promotion
c. Qualified Bribery (A211-A of trade and commerce with another
d. Corruption (A212) country. Under the Rules of Court,
e. Fraud Against Public Treasury ans however, a consul can take depositions or
Similar Offenses (A213) letters rogatory. There is, therefore, a
f. Possession of Prohibited Interest definite provision of the law making it the
(A216) consul‘s function to take depositions.
g. Malversation of Public Funds or When he agreed to the falsification of the
Property (A217) deposition, he was doing so as a public
h. Failure to Render Accounts (A218) officer in the service of the Philippine
i. Failure to Render Account Before government.
Leaving the Country (A219)
j. Illegal Use of Public Funds or Property 5. Crimes against national security and the
(A220) law of nations, defined in Title One of
k. Failure to Make Delivery of Public Book two of the Revised Penal Code.
Funds / Property (A221)
l. Falsification (A171) Paragraph 5 of Article 2, use the phrase
―as defined in Title One of Book Two of
GENERAL RULE: RPC governs only when this Code.‖
the crime committed pertains to the
exercise of the public official‘s functions,
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This is a very important part of the circulars. In this case, Circular No. 4 of the
exception, because Title I of Book 2 Ministry of Justice, dated December 15, 1981,
(crimes against national security) does not provides that ―where the check is issued as part of
include rebellion. So if acts of rebellion an arrangement to guarantee or secure the
were perpetrated by Filipinos who were in payment of an obligation, whether pre-existing or
a foreign country, you cannot give not, the drawer is not criminally liable for either
territorial application to the Revised Penal estafa or violation of BP22.‖ Subsequently, the
Code, because Title I of Book 2 does not administrative interpretation of was reversed in
include rebellion. Circular No. 12, issued on August 8, 1984, such
that the claim that the check was issued as a
Crimes against law of nations are: (1) guarantee or part of an arrangement to secure an
piracy in the high seas and (2) mutiny in obligation or to facilitate collection, is no longer a
the high seas valid defense for the prosecution of BP22. Hence,
it was ruled in Que v. People that a check issued
Q: how about terrorism? merely to guarantee the performance of an
A: (Sir Sagsago) Following present trends, obligation is, nevertheless, covered by BP 22. But
it is possible that a new crime known as consistent with the principle of prospectivity, the
Global Terrorism may be considered as a new doctrine should not apply to parties who had
crime against the law of nations. relied on the old doctrine and acted on the faith
thereof. No retrospective effect.
Pirates are those humanis generis or
universal criminals and may be tried under
the laws of the country which first Title 1
acquired jurisdiction over them. FELONIES AND CIRCUMSTANCES WHICH
AFFECT CRIMINAL LIABITY
EXCEPTION TO THE EXCEPTION
Penal laws not applicable within or without Phil Chapter 1
territory if so provided in treaties and laws of FELONIES
preferential application. (Art 2, RPC)
Offense - A crime punished under a special law is
3. PROSPECTIVITY called as statutory offense.

GENERAL RULE: A penal law cannot make an act Misdemeanor - A minor infraction of the law, such as
punishable in a manner in which it was not a violation of an ordinance. (not used in the Phil)
punishable when committed. It does not have any
retroactive effect. PROSPECTIVITY is the Infraction - act or omission punishable by an
equivalent of IRRETROSPECTIVITY. ordinance.

―Without prejudice to the provisions contained Crime – act or omission in violation of any penal law
in Article 22 of this Code, felonies and forbidding or commanding it under pain of penalty.It is
misdemeanors, committed prior to the date of a generic term.
effectivity of this Code shall be punished in FELONY - act or omission punishable by the Revised
accordance with the Code or Act in force at the Penal Code. Do not use this term in reference to a
time of their commission.‖ (Article 366, RPC) violation of special law.

EXCEPTION: Whenever a new statute dealing with Elements of Felonies in general:

the crime establishes conditions more lenient or 1. There must be an act or omission.
favorable to the accused.
To be considered as a felony there must be an act
EXCEPTIONS to the EXCEPTION: or omission; a mere imagination no matter how
1. Where the new law is expressly made wrong does not amount to a felony.
inapplicable in pending actions or existing
cause of action. Act - any bodily movement tending to produce
2. Where the offender is a habitual delinquent. some effect in the external world, it being
unnecessary that the same be actually produced as
Rule of prospectivity also applies to the possibility of its production is sufficient.
administrative rulings and circulars and to
judicial decisions and rules of procedure Omission – is the inaction, the failure to perform
a positive duty that one is bound to do. There
In Co v. CA, decided on October 28, 1993, it must be a law requiring the doing or performance
was held that the principle of prospectivity of of an act.
statutes also applies to administrative rulings and
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2. The act or omission must be punishable by the (b) degree of accomplishment of crime (attempted,
RPC. frustrated, consummated)
(c) degree of participation of the offender (principal,
Basis: Nullum Crimen, nulla poena sine lege. accomplice, accessory)

The term felony is limited only to violations of the Violations of the RPC are mala in se.
Revised Penal Code. When the crime is punishable
under a special law you do not refer to this as a e.g. killing of human being, disenfranchising a voter,
felony. So whenever you encounter the term sex crimes, destroying property of other people
felony, it is to be understood as referring to crimes
under the Revised Penal Code Mala Prohibita - the act penalized is not inherently
. wrong, it is wrong only because a law punishes the
This is important because there are certain same. They are violations of regulatory statutes or
provisions in the Revised Penal Code where the rules of convenience designed to secure a more orderly
term ―felony‖ is used, which means that the regulation of the affairs of society
provision is not extended to crimes under special
laws. A specific instance is found in Article 160 – Laws defining crimes mala prohibita condemn behavior
Quasi-Recidivism, which reads: directed not against any particular individual but
against public order. Violation is deemed wrong against
A person who shall commit a felony after society as a whole and generally unattended with any
having been convicted by final judgment, particular harm to definite persons (PP v. Doria; Jan
before beginning to serve sentence or while 22, 1999)
serving the same, shall be punished under
the maximum period of the penalty. Moral trait is not considered

Q: If a prisoner who is serving sentence is found in Good faith or lack of criminal intent are not defenses.
possession of dangerous drugs, can he be However, it must be proven that there was an intent
considered a quasi-recidivist? to perpetrate the act, i.e. the act was performed
voluntarily, willfully and persistently despite knowledge
A: No. The violation of Presidential Decree No. that the act is prohibited. The act was not casual or
6425 (The Dangerous Drugs Act of 1972) is not a accidental performance.
felony. The provision of Article 160 specifically
refers to a felony and felonies are those acts and In crimes involving possession of prohibited articles,
omissions punished under the Revised Penal Code. this requirement is met by proof of an intent to
possess (animus possidendi). E.g. A found a box.
Q: Is illegal possession of bladed weapon a felony? He was opening it when he was caught by the police.
He didn‘t know that it contains a gun. Having no intent
A: No. It is not under the Revised Penal Code. to possess the gun, he should not be held liable.
However, if he was caught during the time that he was
3. The act is performed or the omission incurred putting the gun into his bag, he may be held liable
by means of dolo or culpa. because of the presence of intent to possess.

CLASSIFICATION OF FELONIES Modifying circumstances are not taken into account, as

well as the degree of participation of the offenders.
1. According to their Inherent Nature They are punished generally only when consummated
unless the law provides a penalty for the attempted or
Mala In Se - the act is inherently evil or bad per se, or frustrated stage.
wrongful. Even without a law, they are in themselves
bad and ought not to be done. Violations of special laws are mala prohibita. Note,
however, that not all violations of special laws are mala
They are committed by dolo or culpa. prohibita. While intentional felonies are always mala in
se, it does not follow that prohibited acts done in
Criminal liability is based on the moral trait of the violation of special laws are always mala prohibita.
offender hence the existence of intent or dolo is
essential in determining criminal liability. Crimes, which although punished by special laws, are
nevertheless mala in se (thus good faith and the lack of
Good faith and lack of intent are defenses. criminal intent is a valid defense):

In determining the penalty, the following are (1) if the act punished is one which is inherently
considered: wrong,
(a) presence of modifying circumstances
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E.g. special law regarding disenfranchising a penalty. penalty.
voter; or the special law that pertains to child As to degree of When there are The degree of
abuse. These acts are inherently wrong and participation more than one participation of
although they are punished under special law, offender, the any offender is
the acts themselves are mala in se. degree of not considered.
participation of All who
(2) Offenses which are derivatives of crimes under each in the perpetrated the
the Revised Penal Code commission of prohibited act
the crime is are penalized to
E.g. cattle rustling, carnapping, piracy in Phil taken into the same extent.
waters, highway robbery, theft, robbery account of There is no
imposing the principal or
Summary: penalty. Thus accomplice or
Mala In Se Vs. Mala Prohibita offenders are accessory to
classified as consider.
MALA IN SE MALA principals,
PROHIBITA accomplice, and
As to nature wrong from its Wrong because accessory.
very nature it is prohibited by As to what laws Generally, RPC is Generally,
law are violated violated. Special Laws are
As to basis of Criminal liability The moral trait violated.
criminal liability Is based on the of the offender is
moral trait of the not considered, it Test to determine if violation of special law is
offender, that is is enough that malum prohibitum or malum in se
why liability the prohibited
would only arise act be voluntarily Analyze the violation: Is it wrong because there is a
when there is done. law prohibiting it or punishing it as such? If you
dolo or culpa in remove the law, will the act still be wrong?
commission of
the punishable If the wording of the law punishing the crime uses the
act. word ―willfully‖, then malice must be proven. Where
As to use of Good faith or Good faith is not malice is a factor, good faith is a defense.
good faith as a lack of criminal a defense.
defense intent is a valid In violation of special law, the act constituting the
defense, crime is a prohibited act. Therefore culpa is not a basis
UNLESS the of liability, unless the special law punishes an omission.
crime is the
result of culpa. When given a problem, take note if the crime is a
As to use of Intent is an Criminal intent is violation of the Revised Penal Code or a special law.
intent as an element. immaterial.
element 2. According to the Means by which they are
As to degree of The degree of The act gives Committed
accomplishment accomplishment rise to a crime
of the crime of the crime is only when it is a. Intentional Felonies – the act is performed or
taken into consummated; the omission is incurred by means of deceit or
account in there are no dolo, that is, with deliberate intent or malice to do
punishing the attempted or an injury.
offender. Thus, frustrated
there are stages, unless Dolo - is equivalent to malice which is the intent to
attempted, the special law do injury to another.
frustrated, and expressly
consummated penalize the They may be by any positive acts or in the form of
stages in the mere attempt or omissions.
commission of a frustration of
crime. the crime. Crimes by omission result when there is a failure to
act when required by law; a refusal to do what the
As to mitigating Mitigating and Mitigating and law commands. E.g. Misprision of Treason,
and aggravating aggravating Arbitrary Detention (Art.125), Failure to Issue
aggravating circumstances circumstances Receipts, Refusal to Render Assistance Towards
circumstances are taken into are not taken the Administration of Justice, Abandonment of
account in into account in Persons in Danger of Dying, Abandonment of
imposing the imposing the Minors
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3. that the mistake must be without fault or
Elements: carelessness on the part of the accused.
1. criminal intent on the part of the offender.
- The purpose to use a particular means to a. US v Achong (15 P 488) – the accused
effect such result had no alternative but to take the
- Intent to commit an act with malice, being facts as they appeared to him, and
purely mental, is presumed. Such such facts justified his act of killing his
presumption arises from the proof of roommate.
commission of an unlawful act. b. Pp v Oanis (74 P 257) – the accused
- Its existence is shown by overt acts. police officers were at fault when the
shot the escaped convict, who was
2. freedom of action on the part of the sleeping, without first ascertaining his
offender in doing the act. identity.
- Voluntariness on the part of the person to
commit the act or omission Mistake of Fact vs. Mistake of Identity
- If without freedom, no longer a human In mistake of fact, there is no criminal
being but merely a tool. intent: while in mistake of identity, there is
criminal intent, only it is directed at the wrong
3. intelligence on the part of the offender in person in the belief that he was the proper
doing the act. object of the crime. In the first, the mistake
- Capacity to know and understand the refers the situation, while in the second the
consequences of one‘s act (discernment: mistake is with respect to the identity of the
aware of the nature of his action) persons involved. Where an unlawful act is
- Without this power, necessary to willfully done, a mistake in the identity of the
determine the morality of human acts, no intended victim cannot be considered
crime can exist. exempting, nor can it be considered reckless
imprudence.
How To Disprove The Elements
1. Freedom : by proof of irresistible force or E.g. A husband shoots a woman engaged in
uncontrollable fear sexual intercourse believing her to be his wife,
2. Intelligence : by proof of insanity or infancy but she is not. There is no mistake of fact as
3. Intent : by proof of good faith OR by proof what is involve is a mistake in identity.
that the accused acted under a State Of
Mistake Of Fact (Misapprehension of Facts) Mistake of Fact vs Mistake of Law
Mistake of fact is different from mistake of law
MISTAKE OF FACT - Misapprehension of fact because the latter refers to a situation where a
on the part of the person who caused injury to person relies upon a law or decision which is
another. He is not, however, criminally liable subsequently found to be invalid or erroneous.
because he did not act with criminal intent.
4 Kinds of Intent According to the
When the offender acted out of a mistake of American Model Penal Code
fact, criminal intent is negated, so do not 1. Purposeful – where the accused had the
presume that the act was done with criminal desire to cause the result. This is
intent. This is absolutory if crime involved synonymous to the concept of specific
dolo. intent.
2. Knowing – where the accused knew what
Mistake of fact would be relevant only when he was doing and understood the
the felony would have been intentional or probable results thereof though he did
through dolo, but not when the felony is a intend the result. This is similar to general
result of culpa. When the felony is a product criminal intent.
of culpa, do not discuss mistake of fact. Also, 3. Reckless – where the accused is
it has no application to felonies which are in indifferent to the results of his acts.
the nature of strict liability crimes such as 4. Negligent – the failure of the accused to
statutory rape. do something that a reasonable man
would do, it is inattentiveness.
Requisites of Mistake of Fact as a
Defense: b. Culpable Felonies – act is performed without
1. that the act done would have been lawful malice but by means of fault or culpa (culpa -
had the facts been as the accused imprudence or negligence).
believed them to be.
2. that the intention of the accused in Imprudence – deficiency of action, lack of skill,
performing the act be lawful. or if the person fails to take the necessary
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precaution to avoid injury to person / damage HOWEVER, per Decision of Justice Davide in
to property. the case of Reodica vs CA, July 8, 1999, if
E.g. A, after being taught how to drive for 1 there results a light felony, such as Slight
hr, drove his car in session and hit B. Physical Injuries, the same should be subject
of a Separate information on the principle that
Negligence – deficiency of perception, lack of there is no complex crime involving a light
foresight, if a person fails to pay proper felony. (It is doubtful whether a negligent act
attention and to use due diligence in is susceptible of being divided into several
foreseeing the injury/ damage impending to be parts. Thus, if the accused is acquitted in one,
caused. can he still be held liable for the other offense
involving the same alleged negligent act?)
Elements:
1. lack of skill/ lack of foresight the part Note: There is no crime of Negligence /
of the offender. Imprudence Resulting to Attempted/Frustrated
2. freedom of action on the part of the Homicide/Murder because intent and
offender in doing the act. negligence cannot co-exist as they are
3. intelligence on the part of the offender incompatible.
in doing the act.
Reason Why Negligence is Punished
How to Disprove Negligence
A man must use common sense and exercise
By proof of due care. due reflection in all his acts; it is his duty to be
E.g. The rule is that one crossing a thru-stop cautious, careful and prudent.
street has the right of way over one making a
U-turn. Except if the one making the U-turn This is to compel a person to be careful if not
has already negotiated half of the turn and is for his own protection, then for the protection
almost on the other side so that he is visible to of the public.
the person on the thru-stop street, the latter
must give way. He has the last clear chance to Penalty for Felony From Negligent Act is
avoid the accident. Lower

Negligence as a Felony General Rule: The penalty for a felony

resulting from negligence is lower than that
Under Article 3, it is beyond question that provided for if the felony was intentional.
culpa or criminal negligence is just a mode by
which a felony may arise; a felony may be Exception: Crime of Malversation where the
committed or incurred through dolo or culpa. penalty is the same whether it is intentional or
committed through negligence.
However, Justice J.B.L. Reyes pointed out that
criminal negligence is a quasi–offense. His Principle of Inclusion of Offenses
reason is that if criminal negligence is not a
quasi-offense, and only a modality, then it Intentional felony includes culpable felony.
would have been absorbed in the commission
of the felony and there would be no need for There are felonies where an accused is
Article 365 as a separate article for criminal prosecuted under an Information charging him
negligence. Therefore, criminal negligence, with committing the felony intentionally, but
according to him, is not just a modality; it is a he may be convicted for committing the same
crime by itself, but only a quasi-offense. through negligence, even without amending
the Information. This is because an Intentional
Under Art 365, negligence is not just a mode Felony included a Felony through negligence.
of committing a felony but is in itself the This is illustrated in the cases of falsification
felony. The resulting injuries or damage are and malversation.
considered for purposes of determining the
proper penalty to be imposed. Crimes which Cannot be Committed By
Negligence
Thus, if the result of the lack of due care of a. If the elements of the crime include
the accused, there resulted death, injuries and malice.
damage to property, the nomenclature of the b. If the nature of the crime requires a
offense is Reckless/Simple Imprudence special state of mind.
Resulting to Homicide, Serious Physical c. If the nature of the crime requires intent
Injuries and Damage to Property. like political crimes which is always
intentional.
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stages. E.g. threats, libel, defamation, slander,
Intentional Culpable alarms and scandal, coercion
Acts is Not malicious b. Material Crimes – those with at least 2
malicious stages of execution, the attempted and
With deliberate Injury caused is consummated.
intent unintentional being incident
of another act performed 5. According to their Stages of Execution (See
without malice Discussion Below)
Has intention to Wrongful act results from 1. Attempted Felonies
cause injury imprudence, negligence, 2. Frustrated Felonies
lack of foresight, lack of skill 3. Consummated Felonies

3. According to Whether they Produce Material 6. According to their Gravity

Injuries a. Light Felony – the penalty is Arresto Menor
a. Real Crimes – if they produce actual damage or a fine not exceeding P200
or injury to life, security or property. b. Less Grave Felony – punished by a
correctional penalty (from 1 month and 1 dat
b. Impossible Crime – an act, which would to 6 years) or a fine fro P201 to P6,000
have been an offense against persons or c. Grave Felony – the penalty is more than 6
property, were it not for the inherent years imprisonment or a fine of more than
impossibility of its accomplishment or on P6,000.
account of inadequate or ineffective means. d. Heinous Crime

Legal Impossiblity – based on the legal Notes:

nature /concept of the offense, the intended Where a penalty of imprisonment is provided
crime can never be produced. E.g Shooting a whether as a joint or alternative penalty to fine, it
dead person or stealing one‘s own property is the basis for the classification.

Physical Impossibility – the intended crime The classification is important: 1) for purposes of
cannot be produced due to factors or determining whether the offense has prescribed;
circumstances beyond the control of or 2) to determine whether the offense may be
unknown to the accused. E.g. Pick-pocketing subject to complexing; and 3)to determine
an empty pocket. whether a subsidiary penalty may be imposed.

The accused must not be aware of the 7. According to Number of Acts involved in the
impossibility of the accomplishment of the Offense
intended crime. a. Singular – there is one crime meriting one
penalty for each injury to a person arising
This is a crime of last resort in that the acts from separate acts.
performed should not be punished by any b. Plural – 2 or more crimes result but only one
other provision of the RPC. penalty is imposed.
b1. Complex crime proper (delito compuesto)
The correct and complete nomenclature of the – one act gives rise to 2 or more grave or
crime is ―Impossible cerime of Theft, Estafa, less grave felonies.
Homicide, Physical Injuries‖, as the case may
be. b2. Compound (delito complejo) – one
offense is a necessary means to commit
An impossible crime has no stages of the other.
execution and has a fixed penalty of Arresto
Mayor. b3. Special Complex / Composite – 2 or more
offenses but the law considers them as
This is an example of positivist theory. The one, thus 1 penalty.
accused is penalized because while objectively e.g. robbery with rape, robbery with
he has not committed a crime, subjectively, he homicide
is a potential criminal. He is punished to
protect society from his criminal tendencies. b4. Delito Continuado (Continued Crimes) –
where the offender performs a series of overt
4. According to Whether they Have Stages of acts violating one and the same penal
Execution provision committed at the same place and
a. Formal Crimes – those committed in one about the same time for the same criminal
instance and have no attempted and frustrated purpose, regardless of series of acts done, it is
regarded in law as one.
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b. Political – those which involve the use of
8. According to Situs or Place of Commission force, violence, deception, economic or any
a. Localized – all the elements took place in one other illegal means, to create, maintain, or
jurisdiction. enhance the power interests, ideology of a
b. Transitory – elements took place in 2 or group, organization or institution, to the
more jurisdictions. detriment of or destruction of other rival
groups, often causing fear and victimization of
9. According to the Time Frame of the innocent persons.
Commission
a. Instantaneous – those which arise at the b1. Political Crimes of Domination and
very moment the acts of execution are Oppression or State Crimes – if
performed. committed by powerful institution or the
b. Continued - where the offender performs a state.
series of overt acts violating one and the same e.g. Domestic spying, human rights
penal provision committed at the same place violation, restriction of political rights.
and about the same time for the same criminal b2. Political Crimes of Group Conflicts,
purpose, regardless of series of acts done, it is Hate Crimes, or Bias Crimes – if
regarded in law as one. committed by rival groups.
e.g. The taking of several personal properties e.g. killing based on racism
belonging to different persons constitute but b3. Political Crimes of Rebellion, sedition,
one theft ―Two birds with one stone‖; The coup d‘etat – crimes committed by groups
robbery of different buildings which is part of against the existing social and political
an intent to commit a general robbery within a order. This is the type being followed in
specific area is only one robbery the Philippines. The first 2 types are
punished as ordinary crimes.
Note: Continued offense is always
instantaneous. Notes: Ordinary crimes committed in
furtherance of Political Crimes are not
c. Continuing - this is but one offense considered as separate crimes, but are integral
consisting of several acts executed within a parts and therefore absorbed in the political
span of time. Thus, several acts involving crime.
illegal recruitment committed within a year
time give rise to only one offense of Estafa by Political crimes are often continuing and
Deceit. Transitory.
e.g. Political crimes of treason or rebellion
13. According to Magnitude
Note: Continuing offense may be localized or a. Crimes against Nations – those which can
transitory. be tried by any state.
b. Crimes against a particular state – those
10. According to the Requirement of Complaint which are defined by domestic law of a state
a. Private – those which cannot be prosecuted and tried in that particular state.
de officio or those which require the offended
party file a complaint for the criminal case to ELEMENTS OF A CRIME
be instituted.
e.g. crimes against chastity 1. The Actus Reus – this is the physical aspect
b. Public – those which may be instituted consisting of an overt physical activity capable of
without a prior complaint by the offended producing an effect upon the outside world. They
party. include overt physical positive acts, omissions or
oral declarations. They do not, however, include
11. According to whether a private injury is ideas, beliefs, thoughts, or personal status of a
involve person except that of being a vagrant.
a. Victimless Crimes – those which do not
result to any injury to a private person. Overt acts – refers to acts which are observable or
b. Crimes with Private Victims or Offended capable of being felt, seen or heard.
Parties – those where the injury or damage
to a person is the essence of the crime; such e.g. Overt positive act: stabbing or picking a
as crimes against property or persons. property; Omission: failure to render assistance to
a person in danger of dying or failure to file a
12. According to Motive and Goal complaint within the period mandated by law;
a. Ordinary or Common Crimes – those Declarations: libel and slander.
committed for personal or private reasons.
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2. The Mens Rea – this refers to the mental wrongdoer to prove that he acted without such
component of a crime. It is the state of mind criminal intent.
required in order that a person will be criminally 2. Specific Criminal Intent – (according to Sir
liable. It is often equated with evil, or criminal Sagsago) it is when the offender intended the
mind, or intent. Hence the maxim, ―Actus non result of the act. It is the use of specific means
facit reum, nisi mens sit rea” - The act cannot to achieve a specific result.
be criminal where the mind is not criminal.
Intent is not presumed because it is an
This is true to a felony characterized by dolo, but ingredient or element of a crime, like intent to
not a felony resulting from culpa. This maxim is kill in the crimes of attempted or frustrated
not an absolute one because it is not applied to homicide/parricide/murder. The prosecution
culpable felonies, or those that result from has the burden of proof.
negligence. (Ortega)
Specific intent may be proved by proof of
However, (According to Sir Sagsago) the criminal SCIENTER or knowledge of a particular fact or
mind may either be an intentional or negligent illegality which will result in criminal liability.
mind (indifferent mind) This may be actual or constructive.
e.g. Adultery/concubinage – knowledge that
For one to be criminally liable for a felony by dolo, the woman/man is married; Indirect assault -
there must be a confluence of both an evil act and that the victim is a public officer; to be
an evil intent. ―Actus non facit reum, nisi mens sit accessory there must be knowledge of the
rea‖ ( PP vs. Manuel 476 SCRA 461) commission of a crime by the principal; in
Fencing, that the article is the subject of theft
As a general rule, mistake of fact, good faith, or or robbery.
mistake of law are valid defenses in a prosecution
for a felony by dolo. ―Actus non facit reum, nisi Q: May a crime be committed without criminal
mens sit rea‖ ( PP. vs. Manuel) intent?
A: Yes. Criminal intent is not necessary in these
The existence of intent is shown by the overt acts cases:
of the person.
(1) When the crime is the product of culpa or
Criminal intent is presumed from the commission negligence, reckless imprudence, lack of foresight
of an unlawful act, but not from the proof of the or lack of skill;
commission of an act which is not unlawful.
(2) When the crime is a prohibited act under a
Mens rea of the crime depends upon the elements special law or what is called malum prohibitum
of the crime. You can only detect the mens rea of (and/or strict liability crimes under RPC such as
a crime by knowing the particular crime Statutory rape).
committed. Without reference to a particular
crime, this term is meaningless. For example, in INTENT vs. DISCERNMENT:
theft, the mens rea is the taking of the property of
another with intent to gain. In falsification, the INTENT - the determination to do a certain thing;
mens rea is the effecting of the forgery with intent an aim or purpose of the mind. It is the design to
to pervert the truth. resolve or determination by which a person acts.

In criminal law, we sometimes have to consider DISCERNMENT - the mental capacity to tell right
the crime on the basis of intent. For example, from wrong. It relates to the moral significance
attempted or frustrated homicide is distinguished that a person ascribes to his act and relates to the
from physical injuries only by the intent to kill. intelligence as an element of dolo, distinct from
Attempted rape is distinguished from acts of intent.
lasciviousness by the intent to have sexual
intercourse. In robbery, the mens rea is the taking INTENT vs. MOTIVE
of the property of another coupled with the
employment of intimidation or violence upon MOTIVE INTENT
persons or things; remove the employment of Reason/moving Purpose to use a
force or intimidation and it is not robbery anymore. power which impels particular means to bring
one to commit an about a desired result
Criminal Intent, categorized into two (in act for a definite (not a state of mind, not
intentional offenses the mens rea is either): result. Simply put, a reason for committing a
1. General Criminal Intent – intent is presumed motive is the crime)
from the mere doing of a wrong act. So this personal or private
does not require proof, the burden is upon the reason why an
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offender commits a commission of the offense. Such deeds or words
crime. E.g. hatred, may indicate the motive.
jealousy, profit,
revenge, reward. 3. Voluntariness – the act or omission must be the
NOT an element of Element of the crime result of the conscious choice and deliberate will of
the crime EXCEPT culpable felonies the accused. It requires the Concurrence of:
Generally not Essential in intentional a. Freedom of action – the accused was not
necessary to be felonies. under duress, threat, coercion.
proven EXCEPT b. Intelligence – the ability to discern, to be
when identity of the aware of one‘s acts, as either good or bad,
perpetrator is in and of its possible consequences.
doubt. c. Intent
When there is If intentional, a crime
motive in the cannot be committed Even culpable felonies require voluntariness. It
commission of a without intent. Intent is does not mean that if there is no criminal intent,
crime, it always manifested by the the offender is absolved of criminal liability,
comes before intent. instrument used by the because there is culpa to consider.
But a crime maybe offender. It is an element
committed without of a felony except in In culpable felonies, there is no voluntariness if
motive. It is not an cases of culpa. either freedom, intelligence or imprudence,
element of a felony. negligence, lack of foresight or lack of skill is
A matter of A matter of criminal law. lacking. Without voluntariness, there can be no
procedure. dolo or culpa, hence, there is no felony.

When is Motive Relevant/Necessary The Following are Not Voluntary

a. acts resulting from force or threat
General Rule: Proof of Motive is not necessary for b. acts resulting from reflexes, convulsive bodily
conviction. movements
c. acts done while a person is asleep,
Exceptions: unconscious, or in a state of hypnosis
1. When it is an essential element of a crime as d. any movement which is not the product of the
in libel and malicious mischief, direct assault, conscious effort or determination of a person.
political crimes
2. When the evidence against the accused is Illustrations:
purely circumstantial. (JBL)
3. When there is doubt as to the identity of the In a case decided by the Supreme Court, two
accused (JBL) persons went wild boar hunting. On their way,
4. When the act produces several crimes as in they met Pedro standing by the door of his house
entering the estate of another, motive is and they asked him where they could find wild
necessary to determine whether the offense is boars. Pedro pointed to a place where wild boars
trespass, vagrancy or theft. were supposed to be found, and the two
5. When it is necessary to ascertain the truth proceeded thereto. Upon getting to the place,
between 2 antagonistic theories or versions of they saw something moving, they shot,
the killing. L(JBL) unfortunately the bullet ricocheted killing Pedro. It
6. When the identification of the accused was held that since there was neither dolo nor
proceeds from an unreliable source and the culpa, there is no criminal liability.
testimony is inconclusive and not free from
doubt. (JBL) In US v. Bindoy, accused had an altercation
7. When there are no eyewitnesses to the crime, with X. X snatched the bolo from the accused. To
and where suspicion is likely to fall upon a prevent X from using his bolo on him, accused
number of persons. (JBL) tried to get it from X. Upon pulling it back
towards him, he hit someone from behind,
Note: Proof of motive alone is not sufficient to instantly killing the latter. The accused was found
support a conviction. There must be a reliable to be not liable. In criminal law, there is pure
evidence from which it may be reasonably deduced accident, and the principle damnum absque injuria
that the accused was a malefactor. (JBL) is also honored.

Motive, How Proven Article 4. Criminal liability

Testimony of witnesses on the acts or statements Criminal liability shall be incurred:

of the accused before or immediately after the
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1. by any person committing a felony (delito) As a general rule, the offender is criminally liable
although the wrongful act done be for all the consequences of his felonious act,
different from that which he intended; although not intended, if the felonious act is the
2. by any person performing an act which proximate cause of the felony or resulting felony.
would be an offense against persons or
property, where it not for the inherent The act may be against person; honor, security or
impossibility of its accomplishment or on rights; property (destruction, loss, diminution of
account of the employment of an value). The act may be intentional or an imprudent
inadequate or ineffectual means. act. The act may create fear causing a person to
act which may cause injury upon him.
Par 1. Criminal Liability for a Felony Committed
Different from that intended to be committed Any person who creates in another person‘s mind
an immediate sense of danger, which causes the
RATIONALE: He who is the cause of the cause is the latter to do something resulting in the latter‘s
cause of the evil caused. injuries, is liable for the resulting injuries. (Pp v
Page, 77 S 348)
Requisites:
1. The act or omission must be a felony  In criminal law, as long as the act of the
accused contributed to the death of the victim,
NO Intentional Felony even if the victim is about to die, he will still be
a. When the act or omission is not punishable by liable for the felonious act of putting to death
RPC; or that victim.
b. When the act is covered by any of the  Supreme Court rationalized that what made B
justifying circumstances. cut his throat, in the absence of evidence that
he wanted to commit suicide, is the belief that
A pregnant woman who committed suicide is not sooner or later, he would die out of the wound
liable for intentional abortion because committing a inflicted by A. Because of that belief, he
suicide is not a felony. decided to shorten the agony by cutting his
A person who wanted to kill himself jumped from throat. That belief would not be engendered in
the tenth floor of a building and a person was his mind were it not because of the profuse
injured when he fell down is not liable because he bleeding from his wound. Now, that profusely
was not committing a felony. bleeding would not have been there, were it
not for the wound inflicted by A. As a result, A
The act of getting back a property is not a felony was convicted for manslaughter.
because the act is lawful.  Death is presumed to be the natural
consequence of physical injuries inflicted in the
Three Possible Consequences in Committing a ff:
Felony a. Victim at the time the physical injuries
a. NO harm is produced (e.g. victimless crimes) were inflicted was in normal health
b. Intended Injury is produced - there is liability if b. Death may be expected from the physical
the actual result is the intended result injuries inflicted
(causation) c. Death ensued within a reasonable time
c. Not intended Injury is Produced – there is
liability if the act is the proximate or legal  In a case where a wife had to go out to the
cause of the injury cold to escape a brutal husband and because
of that she was exposed to the element and
2. Injury or damage done to another is the direct, caught pneumonia, the husband was made
natural and logical consequence of the felony. criminally liable for the death of the wife.
 Even though the attending physician may have
Note: The act may produce the immediate injury been negligent and the negligence brought
or such injury is not produced instantly. about the death of the offending party – is no
defense at all, because without the wound
The relation of cause and effect must be shown inflicted by the offender, there would have
(Doctrine of Causation): been no occasion for a medical treatment.
a. Unlawful act is the efficient cause  Even if the wound was called slight but
b. Accelerating cause because of the careless treatment, it was
c. Proximate cause aggravated, the offender is liable for the death
of the victim not only of the slight physical
PROXIMATE CAUSE - is that cause which in the injuries. Reason – without the injury being
natural and continuous sequence, unbroken by any inflicted, there would have been no need for
efficient supervening cause, produces a felony, any medical treatment. That the medical
without which such felony could not have resulted. treatment proved to be careless or negligent,
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is not enough to relieve the offender of the was gathered by his working in the farm and
liability for the inflicting injuries. that is already an efficient intervening cause.
 When a person inflicted wound upon another,
and his victim upon coming home got some  Doctrine of Supervening Cause – cause
leaves, pounded them and put lime there, and that intervenes between the act of the accused
applying this to the wound, developed locked and the expected injury breaking the
jaw and eventually he died, it was held that connection of the act and injury and becomes
the one who inflicted the wound is liable for the proximate cause of the injury.
his death. a. Act of the victim himself
 In another instance, during a quarrel, the b. Act of 3rd person
victim was wounded. The wound was c. External factor
superficial, but just the same the doctor put
inside some packing. When the victim went Supervening event may be the subject of
home, he could not stand the pain, so he amendment of original information or of a
pulled out the packing. That resulted into new charge without double jeopardy.
profuse bleeding and he died because of loss
of blood. The offender who caused the wound,  Who are Liable: The one who caused the
although the wound caused was only slight, proximate cause is the one liable. The one
was held answerable for the death of the who caused the immediate cause is also liable,
victim, even if the victim would not have died but merely contributory or sometimes totally
were it not for the fact that he pulled out that not liable.
packing. The principle is that without the
wound, the act of the physician or the act of Felony is NOT the proximate cause when:
the offended party would not have anything to 1. there is an active force that intervened
do with the wound, and since the wound was between the felony committed and the
inflicted by the offender, whatever happens on resulting injury, and the active force is a
that wound, he should be made punishable for distinct act or fact absolutely foreign from the
that. felonious act of the accused; or
 In Urbano v. IAC, after so many weeks of 2. the resulting injury is due to the intentional act
treatment in a clinic, the doctor pronounced of the offended party.
the wound of B already healed. Thereafter, B
went back to his farm. Two months later, B Either actual or proximate, the ff situations
came home and he was chilling. Before may be produced
midnight, he died out of tetanus poisoning. a. Felonious act immediately produces an injury
The heirs of B filed a case of homicide against b. Felonious act does not immediately produce an
A. The Supreme Court held that A is not injury. This may be a cause which is far and
liable. It took into account the incubation remote from the consequence which sets into
period of tetanus toxic. Medical evidence were motion other causes which resulted in the
presented that tetanus toxic is good only for felony.
two weeks. That if, indeed, the victim had c. In case act is performed in an individual and
incurred tetanus poisoning out of the wound death resulted, the person injured must be the
inflicted by A, he would not have lasted two one who suffered the consequences of death.
months. What brought about tetanus to infect d. Injury must be capable of producing death
the body of B was his working in his farm e. If a person who has internal ailment suffered
using his bare hands. Because of this, the injury because of the wound inflicted. There is
Supreme Court said that the act of B of criminal liability of the person who inflicted the
working in his farm where the soil is filthy, wound causing injury and such injury is the
using his own hands, is an efficient actual cause, or accelerated the death, or the
supervening cause which relieves A of any proximate cause. It is not a defense that the
liability for the death of B. A, if at all, is only victim is suffering from internal ailment.
liable for physical injuries inflicted upon B. If
you are confronted with this facts of the 3 Situations Where Wrongful act done be
Urbano case, where the offended party died different from what was intended:
because of tetanus poisoning, reason out
according to that reasoning laid down by the 1. Aberratio Ictus / Mistake in the Blow
Supreme Court, meaning to say, the
incubation period of the tetanus poisoning was  A person directed the blow at an intended
considered. Since tetanus toxic would affect victim but because of poor aim, that blow
the victim for no longer than two weeks,, the landed on somebody else.
fact that the victim died two months later  The intended victim as well as the actual
shows that it is no longer tetanus brought victim are both at the scene of the crime.
about by the act of the accused. The tetanus
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 It generally gives rise to a COMPLEX CRIME, suddenly hit him with a piece of wood on the
that being so, the penalty for the serious crime nape, killing him. But it turned out that it was
is imposed in the maximum period. his own father. The crime committed is
 The only time when complex crime may not parricide, although what was intended was
result is when one of the resulting felonies is homicide. Article 49, therefore, will apply
LIGHT FELONY. Light felonies are considered because out of a mistake in identity, a crime
separate crimes. was committed different from that which was
 Doctrine of Transferred Intent – where an intended.
act is directed at a particular victim, the intent
behind the act will be applied if an unintended In another instance, A thought of killing B.
victim is likewise injured. Instead of B, C passed. A thought that he
e.g. With intent to kill, X shot Y killing him. was B, so he hit C on the neck, killing the
The bullet exited and accidentally wounded Z latter. Just the same, the crime intended to
on the leg. The crime would be Homicide with be committed is homicide and what was
Attempted Homicide (not Homicide with committed is actually homicide, Article 49 does
Physical injuries. If Y was not killed, the crime not apply. Here, error in personae is of no
is Attempted homicide with attempted effect.
homicide.
3. Praeter Intentionem / Consequence went
However, According to Ortega, as far as the beyond the Intention
third party is concerned, if he was killed, crime
is homicide. If he was only wounded, the  The injurious result is greater than that
crime is only physical injuries. You cannot intended.
have attempted or frustrated homicide or  It is mitigating, particularly covered by par. 3,
murder because there is no intent to kill. As Art. 13—That the offender had no intention to
far as that other victim is concerned, only commit so grave a wrong as that committed.
physical injuries – serious or less serious or  In order however, that the situation may
slight. qualify as praeter intentionem, there must be
a notable disparity between the means
2. Error in Personae/ Mistake in Identity employed and the resulting felony. If there is
no disparity between the means employed by
 The intended victim was not at the scene of the offender and the resulting felony, this
the crime. It was the actual victim upon whom circumstance cannot be availed of. It cannot
the blow was directed, but he was not the be a case of praeter intentionem because the
intended victim, there was really a mistake in intention of a person is determined from the
identity. means resorted to by him in committing the
crime.
 It is mitigating if the crime committed is
different from that which is intended. If the Illustrations:
crime committed is not different from that
which was intended, error in personae does In People v. Gacogo, 53 Phil 524, two
not affect the criminal liability of the offender. persons quarreled. They had fist blows. The
other started to run away and Gacogo went
 In mistake of identity, if the crime committed after him, struck him with a fist blow at the
was the same as the crime intended, but on a back of the head. Because the victim was
different victim, error in persona does not running, he lost balance, he fell on the
affect the criminal liability of the offender. But pavement and his head struck the cement
if the crime committed was different from the pavement. He suffered cerebral hemorrhage.
crime intended, Article 49 will apply and the Although Gacogo claimed that he had no
penalty for the lesser crime will be applied. In intention of killing the victim, his claim is
a way, mistake in identity is a mitigating useless. Intent to kill is only relevant when
circumstance where Article 49 applies. Where the victim did not die. This is so because the
the crime intended is more serious than the purpose of intent to kill is to differentiate the
crime committed, the error in persona is not a crime of physical injuries from the crime of
mitigating circumstance. attempted homicide or attempted murder or
frustrated homicide or frustrated murder. But
Illustrations: once the victim is dead, you do not talk of
intent to kill anymore. The best evidence of
A thought of killing B. He positioned himself at intent to kill is the fact that victim was killed.
one corner where B would usually pass. When Although Gacogo was convicted for homicide
a figure resembling B was approaching, A hid for the death of the person, he was given the
and when that figure was near him, he benefit of paragraph 3 of Article13, that is, "
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that the offender did not intend to commit so died of suffocation. The offender begged that
grave a wrong as that committed‖. he had no intention of killing the girl and that
his only intention was to prevent her from
A stabbed his friend when they had a drinking shouting. The Supreme Court rejected the
spree eleven times. His defense is that he had plea saying that one can always expect that a
no intention of killing his friend. He did not person who is suffocated may eventually die.
intend to commit so grave a wrong as that So the offender was prosecuted for the serious
committed. It was held that the fact that 11 crime of rape with homicide and he was not
wounds were inflicted on A's friend is hardly given the benefit of paragraph 3, Article 13.
compatible with the idea that he did not intend
to commit so grave a wrong that committed. Differentiating this first case with the case of
the Chinaman and his wife, it would seem that
In another instance, the accused was a the difference lies in the means employed by
homosexual. The victim ridiculed or the offender.
humiliated him while he was going to the
restroom. He was so irritated that he just In praeter intentionem, it is essential that
stabbed the victim at the neck with a lady‘s there is a notable disparity between the means
comb with a pointed handle, killing the victim. employed or the act of the offender and the
His defense was that he did not intend to felony which resulted. This means that the
commit so grave a wrong as that of killing him. resulting felony cannot be foreseen from the
That contention was rejected, because the acts of the offender. If the resulting felony
instrument used was pointed. The part of the can be foreseen or anticipated from the means
body wherein it was directed was the neck employed, the circumstance of praeter
which is a vital part of the body. In praeter intentionem does not apply.
intentionem, it is mitigating only if there is a
notable or notorious disparity between the For example, if A gave B a karate blow in the
means employed and the resulting felony. In throat, there is no praeter intentionem
criminal law, intent of the offender is because the blow to the throat can result in
determined on the basis employed by him and death.
the manner in which he committed the crime.
Intention of the offender is not what is in his So also, if A tried to intimidate B by poking a
mind; it is disclosed in the manner in which he gun at the latter‘s back, and B died of a
committed the crime. cardiac arrest, A will be prosecuted for
homicide but will be given the mitigating
In still another case, the accused entered the circumstance praeter intentionem.
store of a Chinese couple, to commit robbery.
They hogtied the Chinaman and his wife. NOTE: All three instances under paragraph 1, Article 4
Because the wife was so talkative, one of the are the product of dolo. In aberratio ictus, error in
offenders got a pandesal and put it in her personae and praeter intentionem, never think of these
mouth. But because the woman was trying to as the product of culpa. They are always the result of
wriggle from the bondage, the pandesal an intended felony, and, hence dolo. You cannot have
slipped through her throat. She died because these situations out of criminal negligence. The crime
of suffocation. The offender were convicted committed is attempted homicide or attempted murder,
for robbery with homicide because there was a not homicide through reckless imprudence.
resulting death, although their intention was
only to rob. They were given the benefit of Par 2. IMPOSSIBLE CRIME
paragraph 3 of Article 13, ―that they did not
intend to commit so grave a wrong as that It is an act which would be an offense against persons
committed‖. There was really no intention to or property, were it not for the inherent impossibility of
bring about the killing, because it was the its accomplishment or on account of the employment
pandesal they put into the mouth. Had it been of inadequate or ineffectual means.
a piece of rag, it would be different. In that
case, the Supreme Court gave the offenders Requisites:
the benefit of praeter intentionem as a 1. the act performed would be an offense against
mitigating circumstance. The means employed persons or property;
is not capable of producing death if only the 2. the act was done with evil intent;
woman chewed the pan de sal. 3. its accomplishment is inherently impossible or
that the means employed is either inadequate (e.g.
A man raped a young girl. The young girl was small quantity of poison which is inadequate to kill
shouting so the man placed his hand on the a person) or ineffectual (accused fired a gun, not
mouth and nose of the victim. He found out knowing that it was empty);
later that the victim was dead already; she
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4. the act performed should not constitute a e.g. murder a corpse
violation of another provision of the RPC or of
special law. Q: Accused was a houseboy in a house where only a
spinster resides. It is customary for the spinster to
Felonies against Persons sleep nude because her room was warm. It was also
1. Parricide (Art. 246); the habit of the houseboy that whenever she enters
2. Murder (Art. 248); her room, the houseboy would follow and peek into the
3. Homicide (Art. 249); keyhole. Finally, when the houseboy could no longer
4. Infanticide (Art. 255); resist the urge, he climbed into the ceiling, went inside
5. Abortion (Art. 256; Art. 257; Art. 258; Art. 259); the room of his master, placed himself on top of her
6. Duel (Art. 260); and abused her, not knowing that she was already
7. Physical injuries (Art. 263; Art. 264; Art. 265; Art. dead five minutes earlier. Is an impossible crime
266); and committed?
8. Rape (Art. 266-A).
A: Yes. With the new rape law amending the RPC and
Felonies Against Property classifying rape as a crime against persons, it is now
1. Robbery (Arts. 294; 297; 298; 299; 302); possible that an impossible crime was committed.
2. Brigandage (Arts. 306; 307); Note, however, that the crime might also fall under the
3. Theft (Arts. 308; 310; 311); Revised Administrative Code – desecrating the dead.
4. Usurpation (Arts. 312; 313);
5. Fraudulent insolvency (Art. 314); Q: A was driving his car around Roxas Boulevard when
6. Swindling and other Deceits (Arts. 315; 316; 317; a person hitched a ride. Because this person was
318); exquisitely dressed, A readily welcomed the fellow
7. Removal, sale or pledge of mortgaged property inside his car and he continued driving. When he
(Art. 319); reached a motel, A suddenly swerved his car inside. A
8. Arson (Arts. 320; 321; 323; Art. 324; 325; 326); started kissing his passenger, but he found out that his
9. Malicious mischief (Arts. 327; 328; Art. 330; Art. passenger was not a woman but a man, and so he
331). pushed him out of the car, and gave him fist blows. Is
an impossible crime committed? If not, is there any
RATIONALE OF PUNISHING IMPOSSIBLE CRIME crime committed at all?

The law punishes the impossible crime to suppress A: It cannot be an impossible crime, because the act
criminal propensity or tendencies of the perpetrator. would have been a crime against chastity. The crime is
act of lasciviousness, if this was done against the will
 Felony against persons or property should not of the passenger. Even if the victim is a man, the crime
be actually committed, otherwise he would be of acts of lasciviousness is committed. This is a crime
liable for that felony. that is not limited to a victim who is a woman. Acts of
 There is no attempted or frustrated impossible lasciviousness require a victim to be a woman only
crime. when it is committed under circumstances of seduction.
 Pointing a gun is not an overt act to commit a If it is committed under the circumstances of rape, the
crime of murder, thus no attempted. It would victim may be a man or a woman.
constitute grave threats and not an impossible
crime. Q: A entered a department store at about midnight,
Nature of Impossibility: when it was already closed. He went directly to the
1. Legal Impossibility – intended acts, even if room where the safe or vault was being kept. He
completed would not amount to a crime. succeeded in opening the safe, but the safe was
 It would apply to those circumstances where: empty. Is an impossible crime committed? If not,
the motive, desire, and expectation is to what crime is possibly committed?
perform an act in violation of the law.
1. There is an intention to perform the A: This is not an impossible crime. That is only true if
physical act. there is nothing more to steal. But in a department
2. There is a performance of the intended store, where there is plenty to steal, not only the
physical act. money inside the vault or safe. The fact that the vault
3. The consequence resulting from the had turned out to be empty is not really inherently
intended act does not amount to a crime. impossible to commit the crime of robbery. There are
e.g. stealing a property that turned out to other things that he could take. The crime committed
be owned by the stealer. therefore is attempted robbery, assuming that he did
not lay his hands on any other article. This could not
2. Physical Impossibility - when extraneous be trespass to dwelling because there are other things
circumstances unknown to the actor or beyond his that can be stolen.
control prevent the consummation of the intended
crime.
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Q: A and B were lovers. B was willing to marry A discharge because the bullets were old, none of them
except that A is already married. A thought of killing discharged. Was an impossible crime committed?
his wife. He prepared her breakfast every morning,
and every morning, he placed a little dose of arsenic A: No. It was purely accidental that the firearm did not
poison into the breakfast of the wife. The wife discharge because the bullets were old. If they were
consumed all the food prepared by her husband new, it would have fired. That is a cause other than
including the poison but nothing happened to the wife. the spontaneous desistance of the offender, and
Because of the volume of the household chores that therefore, an attempted homicide.
the wife had to attend to daily, she developed a
physical condition that rendered her so strong and But if let us say, when he started squeezing the trigger,
resistance to any kind of poisoning, so the amount of he did not realize that the firearm was empty. There
poison applied to her breakfast has no effect to her. Is was no bullet at all. There is an impossible crime,
there an impossible crime? because under any and all circumstances, an unloaded
firearm will never fire.
A: No impossible crime is committed because the fact
itself stated that what prevented the poison from Whenever you are confronted with a problem where
taking effect is the physical condition of the woman. the facts suggest that an impossible crime was
So it implies that if the woman was not of such physical committed, be careful about the question asked. If the
condition, the poison would have taken effect. Hence, question asked is: ―Is an impossible crime
it is not inherently impossible to realize the killing. The committed?‖, then you judge that question on the basis
crime committed is frustrated parricide. of the facts. If really the facts constitute an
If it were a case of poisoning, an impossible impossible crime, then you suggest than an impossible
crime would be constituted if a person who was crime is committed, then you state the reason for the
thinking that it was a poison that he was putting into inherent impossibility.
the food of the intended victim but actually it was
vetsin or sugar or soda. Under any and all If the question asked is ―Is he liable for an impossible
circumstances, the crime could not have been realized. crime?‖, this is a catching question. Even though the
But if due to the quantity of vetsin or sugar or soda, facts constitute an impossible crime, if the act done by
the intended victim developed LBM and was the offender constitutes some other crimes under the
hospitalized, then it would not be a case of impossible RPC, he will not be liable for an impossible crime. He
crime anymore. It would be a case of physical injuries, will be prosecuted for the crime constituted so far by
if the act done does not amount to some other crime the act done by him. The reason is an offender is
under the Revised Penal Code. punished for an impossible crime just to teach him a
lesson because of his criminal perversity. Although
Do not confuse an impossible crime with the attempted objectively, no crime is committed, but subjectively, he
or frustrated stage. is a criminal. That purpose of the law will also be
served if he is prosecuted for some other crime
Q: Scott and Charles are roommates in a boarding constituted by his acts which are also punishable under
house. Everyday, Scott leaves for work but before the RPC.
leaving he would lock the food cabinet where he kept
his food. Charles resented this. One day, he got an Q: A and B are neighbors. They are jealous of each
electric cord tied the one end to the door knob and other‘s social status. A thought of killing B so A
plugged the other end to an electric outlet. The idea climbed the house of B through the window and
was that, when Scott comes home to open the door stabbed B on the heart, not knowing that B died a few
knob, he would be electrocuted. Unknown to Charles, minutes ago of bangungot. Is A liable for an
Scott is working in an electronic shop where he impossible crime?
received a daily dosage of electric shock. When Scott
opened the doorknob, nothing happened to him. He A: No. A shall be liable for qualified trespass to
was just surprised to find out that there was an electric dwelling. Although the act done by A against B
cord plugged to the outlet and the other hand to the constitutes an impossible crime, it is the principle of
door knob. Whether an impossible crime was criminal law that the offender shall be punished for an
committed or not? impossible crime only when his act cannot be punished
under some other provisions in the Revised Penal
A: It is not an impossible crime. The means employed Code.
is not inherently impossible to bring about the
consequence of his felonious act. What prevented the In other words, this idea of an impossible crime is a
consummation of the crime was because of some one of last resort, just to teach the offender a lesson
cause independent of the will of the perpetrator. because of his criminal perversity. If he could be
taught of the same lesson by charging him with some
Q: A and B are enemies. A, upon seeing B, got the other crime constituted by his act, then that will be the
revolver of his father, shot B, but the revolver did not proper way. If you want to play safe, you state there
that although an impossible crime is constituted, yet it
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is a principle of criminal law that he will only be felony and not for an impossible crime. The attitude
penalized for an impossible crime if he cannot be was so because Article 4 of the Code provides two
punished under some other provision of the Revised situations where criminal liability shall be incurred.
Penal Code.
Because criminal liability for impossible crime
If the question is ―Is an impossible crime is presupposes that no felony resulted from the wrongful
committed?‖, the answer is yes, because on the basis act done, the penalty is fixed at arresto mayor or a fine
of the facts stated, an impossible crime is committed. from P200.00 to P500.00, depending on the ―social
But to play safe, add another paragraph: However, the danger and degree of criminality shown by the
offender will not be prosecuted for an impossible crime offender‖ (Article 59), regardless of whether the
but for _____ [state the crime]. Because it is a wrongful act was an impossible crime against persons
principle in criminal law that the offender can only be or against property.
prosecuted for an impossible crime if his acts do not
constitute some other crimes punishable under the There is no logic in applying paragraph 2 of Article 4 to
Revised Penal Code. An impossible crime is a crime of a situation governed by paragraph 1 of the same
last resort. Article, that is, where a felony resulted. Otherwise, a
Modified concept of impossible crime redundancy and duplicity would be perpetrated.

In a way, the concept of impossible crime has been In the Intod case, the wrongful acts of the culprits
modified by the decision of the Supreme Court in the caused destruction to the house of the intended victim;
case of Intod v. CA, et al., 215 SCRA 52. In this this felonious act negates the idea of an impossible
case, four culprits, all armed with firearms and with crime. But whether we agree or not, the Supreme
intent to kill, went to the intended victim‘s house and Court has spoken, we have to respect its ruling.
after having pinpointed the latter‘s bedroom, all four
fired at and riddled said room with bullets, thinking Article 5. Duty of the court in connection with
that the intended victim was already there as it was acts which should be repressed but which are
about 10:00 in the evening. It so happened that the not covered by the law, and in cases of excessive
intended victim did not come home on the evening and penalties.
so was not in her bedroom at that time. Eventually the
culprits were prosecuted and convicted by the trial No Crime Unless There Is A Law Punishing It
court for attempted murder. The Court of Appeals
affirmed the judgment but the Supreme Court modified When a person is charged in court, and the court finds
the same and held the petitioner liable only for the so- that there is no law applicable, the court will acquit the
called impossible crime. As a result, petitioner-accused accused and the judge will give his opinion that the
was sentenced to imprisonment of only six months of said act should be punished.
arresto mayor for the felonious act he committed with
intent to kill: this despite the destruction done to the Article 5 covers two situations:
intended victim‘s house. Somehow, the decision
depreciated the seriousness of the act committed, (1) The court cannot convict the accused because the
considering the lawlessness by which the culprits acts do not constitute a crime. The proper
carried out the intended crime, and so some members judgment is acquittal, but the court is mandated to
of the bench and bar spoke out against the soundness report to the Chief Executive that said act be made
of the ruling. Some asked questions: Was it really the subject of penal legislation and why.
impossibility of accomplishing the killing that brought
about its non-accomplishment? Was it not purely Whenever a court has knowledge of any act which
accidental that the intended victim did not come home it may deem proper to repress and which is not
that evening and, thus, unknown to the culprits, she punishable by law:
was not in her bedroom at the time it was shot and
riddled with bullets? Suppose, instead of using  it shall render the proper decision, and
firearms, the culprits set fire on the intended victim‘s  shall report the matter to the Chief Executive,
house, believing she was there when in fact she was through the Department of Justice, for the
not, would the criminal liability be for an impossible passage of an appropriate law
crime?  which induces the court to believe that said
act (not punished by any law) should be made
Until the Intod case, the prevailing attitude was that the subject of litigation.
the provision of the Revised Penal Code on impossible
crime would only apply when the wrongful act, which (2) Where the court finds the penalty prescribed for
would have constituted a crime against persons or the crime too harsh considering the conditions
property, could not and did not constitute another surrounding the commission of the crime, the
felony. Otherwise, if such act constituted any other judge should impose the law. The most that he
felony although different from what the offender could do is to recommend to the Chief Executive to
intended, the criminal liability should be for such other grant executive clemency.
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provision of law punishing specific preparatory
Thus, the court shall: acts.
 submit to the Chief Executive, through the
Department of Justice Example: (i) the general rule: buying of a gun,
 such statement or report as may be deemed bolo or poison, even if the purpose is to use
proper, these to kill a person; so also with conspiracies
 without suspending the execution of the and proposals. (ii) the exception: possession of
sentence, picklocks and false keys is punished; as with
 when a strict enforcement of the provisions of conspiracies to commit treason, rebellion,
this code would result in the imposition of a sedition and coup d‘etat
clearly excessive penalty. 2) The Acts of execution – punishable by RPC: the
 Taking into consideration the degree of malice attempted, frustrated and consummated
and the injury caused by the offense. stages.

NOTE: Par 2 does not apply to crimes punishable STAGES OF EXECUTION

by special, including profiteering, and illegal
possession of firearms or drugs. There can be no 1. ATTEMPTED - when the offender commences the
executive clemency for these crimes. commission of a felony directly by overt acts, and
does not perform all the acts of execution which
Article 6. Consummated, frustrated, and should produce the felony by reason of some
attempted felonies. cause or accident other than his own spontaneous
desistance.
STAGES IN THE COMMISSION OF FELONY,
Where Applicable and its Purpose ELEMENTS:
a. the offender commences the commission of
Only to intentional felonies by positive acts but not to: the felony directly by overt acts;
(i). Felonies by omission (ii) Culpable felonies and (iii) b. he does not perform all the acts of execution
Violations of special laws, unless the special law which should produce the felony;
provides for an attempted or frustrated stage. c. the non-performance of all acts of execution
Examples of the exception are The Dangerous Drugs was due to cause or accident other than his
Law which penalizes an attempt to violate some of its spontaneous desistance.
provisions, and The Human Security Act of 2007. But
even certain crimes which are punished under the Overt or external act - is some physical deed or
Revised Penal Code do not admit of these stages. activity, indicating the intention to commit a
particular crime, more than a mere planning or
The purpose of classifying penalties is to bring about a preparation, which if carried out to its complete
proportionate penalty and equitable punishment. The termination following its natural course, without
penalties are graduated according to their degree of being frustrated by external obstacles nor by the
severity. The stages may not apply to all kinds of voluntary desistance of the perpetrator, will
felonies. There are felonies which do not admit of logically and necessarily ripen into a concrete
division. offense.

STAGES IN THE COMMISSION OF FELONY Felony is Deemed Commenced by Overt Act

when the ff are present:
A. The first: The Mental Stage / Internal Acts a. That there be external acts;
b. Such external acts have direct connection with
General Rule: Mental acts such as thoughts, ideas, the crime intended to be committed.
opinions and beliefs, are not subject of penal
legislations. One may express an idea which is The accused has not yet passed the SUBJECTIVE
contrary to law, morals or is unconventional, but as PHASE or that phase encompassed from the time
long as he does not act on them or induce others to an act is executed which begins the commission of
act on them, such mental matters are outside the the crime until the time of the performance of the
realm of penal law and the person may not be last act necessary to produce the crime, but where
subjected to criminal prosecution. the accused has still control over his actions and
their results.
B. The Second: The External Stage which is where the
accused performs acts which are observable The accused was not able to continue performing
the acts to produce the crime. He was prevented
1). The Preparatory acts: Acts which may or may by external forces and not because he himself
not lead to the commission of a concrete chose not to continue. Such as when his weap0n
crime. Being equivocal they are not as rule was snatched, or his intended victim managed to
punishable except when there is an express escape, or he was overpowered or arrested.
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a) when the act performed prior to the
You will notice that the felony begins when the desistance already constituted the
offender performs an overt act. Not any act will attempted stage of the intended felony.
mark the beginning of a felony, and therefore, if For example: the accused, with intent to
the act so far being done does not begin a felony, kill, shot at the victim but missed after
criminal liability correspondingly does not begin. which he ―desisted‖, his acts already
In criminal law, there is such a thing as constituted attempted homicide.
preparatory act. These acts do not give rise to b) When the acts performed already gave rise
criminal liability. to the intended felony. The decision not to
The attempt which the Penal Code punishes is that continue is not a legal but factual
which has a connection to a particular, concrete desistance. As in the case of a thief who
offense, that which is the beginning of the returned what he stole.
execution of the offense by overt acts of the c) When the acts performed constitute a
perpetrator, leading directly to its realization and separate offense. Pointing a gun at
commission. The act must not be equivocal but another and threatening to kill, and then
indicates a clear intention to commit a particular desisting gives rise to grave threats.
and specific felony.
Kinds of Desistance
Examples: 1. Legal Desistance – the desistance referred to
in law which would obviate criminal liability
1. The accused pressed a chemically -soaked cloth unless the overt or preparatory acts already
on the mouth of the woman to induce her to committed in themselve constitute a felony
sleep, while he lay on top of her and pressed other than what the actor intended. It is made
his body to her. The act is not the overt act during the attempted stage.
that will logically and necessarily ripen into 2. Factual Desistance – actual desistance of the
rape. They constitute unjust vexation. ( Note: actor which is made after the attempted stage
it would be attempted rape if he tried to of the crime; the actor is still liable for the
undress the victim or touch her private parts) ( attempt.
Balleros vs. People, Feb, 22, 2006)
2. One found inside a house but no article was Crimes which Do not Admit of Frustrated and
found on him, is liable for trespass and not for Attempted Stages
attempted theft or robbery even if he is a 1. Crimes punishable by Special Penal Laws,
notorious robber UNLESS the law provides otherwise.
3. One found removing the glass window panes or 2. Formal Crimes - crimes which are
making a hole in the wall is not liable for consummated in one instance. For example,
attempted robbery but for attempted trespass in oral defamation, there is no attempted oral
4. Overt act begins when the husband mixed the defamation or frustrated oral defamation; it is
poison with the food his wife is going to take. always in the consummated stage. Other
Before this, there is no attempted stage yet. examples are slander, adultery, threats,
coercion, alarms and scandal, or acts of
INDETERMINATE OFFENSE – one where the lasciviousness.
purpose of the offender in performing an act is not
certain. The accused may be convicted for a felony So also, in illegal exaction under Article 213 is
defined by the acts performed by him up to the a crime committed when a public officer who
time of desistance. is authorized to collect taxes, licenses or
impose for the government, shall demand an
Desistance amount bigger than or different from what the
law authorizes him to collect. Under sub-
Desistance on the part of the offender negates paragraph a of Article 213 on Illegal exaction,
criminal liability in the attempted stage. the law uses the word ―demanding‖. Mere
Desistance is true only in the attempted stage of demanding of an amount different from what
the felony. the law authorizes him to collect will already
1. Reason: This is an absolutory cause by way of consummate a crime, whether the taxpayer
reward to those who, having set one foot on pays the amount being demanded or not.
the verge of crimes, heed the call of their Payment of the amount being demanded is not
conscience and return to the path of essential to the consummation of the crime.
righteousness. The law encourages a person 3. Impossible Crimes
to desist from committing a crime. 4. Crimes consummated by mere attempt (e.g.
2. The reason for the desistance is immaterial. attempt to flee to an enemy country, treason,
3. Exceptions: when the accused is liable despite corruption of minors, etc.)
his desistance 5. Felonies by omission
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6. Crimes committed by agreement (e.g. betting Crimes Which Do Not Admit of Frustrated
in sports like ―ending‖, corruption of public Stage – those which, by the definition of a
officers, indirect bribery) frustrated felony, the offender cannot possibly
perform all acts of execution to bring the desired
2. FRUSTRATED - when the offender performs all result without consummating the offense.
the acts of execution which would produce the
felony as a consequence but which, nevertheless, 1. Rape, since the gravamen is whether there is
do not produce it by reason of causes independent penetration or not, no matter how slight,
of the will of the perpetrator. hence rape is either attempted or
consummated.
ELEMENTS:
a. offender performs all the acts of execution 2. Arson
b. all acts of execution would produce the felony 3. Indirect Bribery, because it is committed by
as a consequence accepting gifts offered to the public official by
c. Felony is not produced reason of his office. No acceptance, no crime.
d. By reason of causes independent of the will of If accepted, crime is consummated.
the perpetrator. 4. Corruption of Public Officers, because the
offense requires the concurrence of will of
The accused has passed the subjective phase and both parties, thus when the offer is accepted,
is now in the OBJECTIVE PHASE, or that portion in the offense is consummated. If offer is
the commission of the crime where the accused rejected, the offense is merely attempted.
has performed the last act necessary to produce 5. Adultery, because the essence of the crime is
the intended crime and where he has no more sexual congress.
control over the results of his acts. 6. Physical Injury since it cannot be determined
whether the injury will be slight, less serious,
The non-production of the crime should not be due or serious unless and until consummated.
to the acts of the accused himself, for if it were he 7. Theft
would be liable not for the frustrated stage of the
intended crime, but possibly for another offense. Theft is consummated once the article is in the
material physical possession of the accused,
Thus: where the accused shot the victim mortally whether actual or constructive. His ability to
wounding him, but he himself saved the life of his dispose off the thing is immaterial and does
victim, his liability is that for serious physical not constitute an element.
injuries as the intent to kill is absent.
N.B. Decisions of the CA as to bulky items
Attempted or Frustrated where the accused must have the opportunity
dispose off or appropriate the articles have
Homicide/murder. Where the accused, with intent already been reversed. The doctrine now is
to kill, injured the victim but the latter did not die, that theft has no frustrated stage. ( Valenzuela
when is the crime attempted or frustrated? vs. PP. June 21, 2007)

1. First View: ―The subjective phase doctrine‖. If 3. CONSUMMATED - when all the elements
at that point where the accused has still necessary for its execution and accomplishment
control over the results of his actions but is are present.
stopped by reason outside of his own
desistance and the subjective phase has not
been passed, the offense is attempted
2. Second View: The Mortal Wound or Life
Threatening Injury Doctrine: If a mortal
wound or life threatening injury had been
inflicted, the offense is frustrated, else it is
attempted ( Palaganas vs. PP., Sept. 12, 2006)
3. Third View: The belief of the accused should
be considered in that if the accused believed
he has done all which is necessary to produce
death, then it is frustrated.

The belief of the accused should be considered in

that if the accused believed he has done all which
is necessary to produce death, then it is frustrated.

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a. Theft: it is consummated once the article is in
the material physical possession of the
Attempted, Frustrated, Consummated, accused, whether actual or constructive. His
Impossible Crime, Distinguished ability to dispose off the thing his immaterial
and does not constitute an element. N.B.
ATTEMP FRUSTRA CONSUMM IMPOSSI
Factors in Determining Stage of Execution
TED TED ATED BLE
CRIME
1. Manner of committing a crime
Evil intent Evil intent Evil intent is Evil intent
is not is not accomplished is not
Some crimes have only the consummated stage
accomplis accomplish accomplish
(Formal crimes) such as threats, coercion, alarms
hed ed ed
and scandal, slander, acts of lasciviousness. In
Evil intent Evil intent The result Evil intent
rape the gravamen is whether there is penetration
is possible is possible sought is is not
or not, no matter how slight, hence rape is either
of of achieved possible of
attempted or consummated.
accomplis accomplish accomplish
hment ment ment
No frustrated bribery. Bribery is the crime of the
receiver not the giver. The crime of the giver is Overt acts All acts of All acts of All acts of
corruption of public official. If only one side of the of execution execution are execution
crime is present, only corruption, you cannot have execution are present. are
a consummated corruption without the are present. present.
corresponding consummated bribery. There cannot started.
be a consummated bribery without the Not all
corresponding consummated corruption. If you acts of
have bribery only, it is only possible in the execution
are
attempted stage. If you have a corruption only, it
is possible only in the attempted stage. The present.
manner of committing the crime requires the Due to Due to Evil intent
meeting of the minds between the giver and the reasons intervening cannot be
receiver. When the giver delivers the money to the other causes accomplish
supposed receiver, but there is no meeting of the than independe ed because
minds, the only act done by the giver is an spontane nt of the it‘s
attempt. It is not possible for him to perform all ous will of the inherently
the acts of execution because in the first place, the desistanc perpetrator impossible
receiver has no intention of being corrupted. e of the . of
Similarly, when a public officer demands a perpetrat accomplish
consideration by official duty, the corruptor turns or. ment or
down the demand, there is no bribery. the means
employed
If the one to whom the demand was made by the
pretended to give, but he had reported the matter offender is
to higher authorities, the money was marked and inadequate
this was delivered to the public officer. If the or
public officer was arrested, do not think that ineffectual.
because the public officer already had the money Decisions of the CA as to bulky items where
in his possession, the crime is already frustrated the accused must have the opportunity
bribery, it is only attempted bribery. This is dispose off or appropriate the articles have
because the supposed corruptor has no intention already been reversed. The doctrine now is
to corrupt. In short, there is no meeting of the that theft has no frustrated stage ( Valenzuela
minds. On the other hand, if there is a meeting of vs. PP. June 21, 2007)
the minds, there is consummated bribery or b. Estafa: It is not the material possession but
consummated corruption. This leaves out the the existence of damage which consumates
frustrated stage because of the manner of the crime.
committing the crime. c. Robbery with Force Upon Things: The thing
must be brought out of the building to
But indirect bribery is always consummated. This consummate the crime.
is because the manner of consummating the crime d. Robbery with violence against or intimidation
does not admit of attempt or frustration. of persons, the crime is consummated the
moment the offender gets hold of the thing
2. Elements of the crime taken and/or is in a position to dispose of it
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Examples: slight physical injuries(art. 266), theft(art.
a. parricide, homicide, and murder . 309 pars. 7 and 8), alteration of boundary marks(art.
a.1. With intent to kill, but no mortal wound 313), malicious mischief(art. 328 par. 3; art. 329 par.
is inflicted – attempted 3), intriguing against honor(art. 364)

a.2. With intent to kill, and mortal wound is NOTE: Only principals and accomplices are liable;
inflicted – frustrated accessories are NOT liable even if committed against
persons or property.
a.3. With intent to kill and victim dies –
consummated Article 8. Conspiracy and proposal to commit
felony.
b. Crimes which require the participation of two
persons have no frustrated stage. Examples: Conspiracy and proposal to commit felony are
Adultery and concubinage; corruption of a punishable only in the cases in which the law specially
public official. provides a penalty therefor.
c. There are crimes which are punished
according to their results and not the intention CONSPIRACY TO COMMIT A FELONY – is one
of the accused such as physical injuries. You when two or more persons come into an agreement
will notice that under the Revised Penal Code, concerning the commission of a crime and decide to
the crime of physical injuries is penalized on commit it.
the basis of the gravity of the injuries. You
have to categorize because there are specific General Rule: Still a preparatory act, and therefore, is
articles that apply whether the physical injuries not, as a rule, punishable.
are serious, less serious or slight. If you say
physical injuries, you do not know which Exception: When there is a specific provision or law
article to apply. This being so, you could not punishing a specific kind of conspiracy. (Examples:
punish the attempted or frustrated stage Conspiracy to commit treason, rebellion, insurrection,
because you do not know what crime of sedition, coup d‘etat, monopolies and combinations in
physical injuries was committed. restraint of trade [TRICSM], highway robbery,
d. Arson: there can be no frustrated stage. It is espionage, direct bribery and arson – said felonies
in the attempted stage if the fire was not yet need not actually be committed).
applied to the building. If no part of the
building was burned, it is still attempted arson Requisites of conspiracy:
no matter how far gone were the acts of the 1. that two or more persons come to an
accused. The moment a particle or a molecule agreement;
of the premises has blackened, in law, arson is 2. that the agreement concerned the commission
consummated. This is because consummated of a felony; and
arson does not require that the whole of the 3. that the execution of the felony be decided
premises be burned. It is enough that any upon.
part of the premises, no matter how small, has
begun to burn. Overt Acts in Conspiracy Must Consists of:
1. Active participation in the actual commission of the
Article 7. When light felonies are punishable. crime itself; or
2. Moral assistance to his co-conspirators by being
General Rule: Light felonies are punishable only when present at the time of the commission of the
they have been consummated. offense.
3. Exerting a moral ascendance over the other co-
Exception: Those committed against persons or conspirators by moving them to execute or
property, punishable even if attempted or frustrated. implement the criminal plan. (Pp. vs Abut, April 24,
2003)
The exception with regard to crimes against persons is
actually unnecessary as the only light felony against Note: Conspiracy is a matter of substance which
persons is slight physical injuries which must be must be alleged in the information, otherwise, the
consummated. court will not consider the same.
The exception can apply, however, to attempted or
frustrated light felonies against property. Kinds of Conspiracy:
1. Conspiracy as a Felony - when the mere
LIGHT FELONIES - are those infractions of law for agreement is punished. No overt act is necessary
the commission of which the penalty of arresto menor to bring about the criminal liability. The mere
or a fine not exceeding 200 pesos or both, is provided. conspiracy is the crime itself. However, if the co-
conspirator or any of them would execute an overt
act, the crime would no longer be the conspiracy
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but the overt act itself. Thus, their liability is for Illustration:
the crime actually committed and they will not be
punished again for the act of conspiring. The prior A, B and C agreed to kill D. When they saw the
agreement (conspiracy) will be absorbed and opportunity, A, B and C killed D and after that, A
becomes conspiracy as a mode of incurring and B ran into different directions. C inspected the
criminal liability. pocket of the victim and found that the victim was
wearing a ring – a diamond ring – and he took it.
Illustrations: The crimes committed are homicide and theft. As
far as the homicide is concerned, A, B and C are
A, B, C and D came to an agreement to commit liable because that was agreed upon and theft was
rebellion. Their agreement was to bring about the not an integral part of homicide. This is a distinct
rebellion on a certain date. Even if none of them crime so the rule will not apply because it was not
has performed the act of rebellion, there is already the crime agreed upon. Insofar as the crime of
criminal liability arising from the conspiracy to theft is concerned, C will be the only one liable. So
commit the rebellion. But if anyone of them has C will be liable for homicide and theft.
committed the overt act of rebellion, the crime of
all is no longer conspiracy to commit rebellion but Exception to the exception: When the act
rebellion itself. This subsists even though the constitutes an indivisible offense (e.g. composite
other co-conspirator does not know that one of crime).
them had already done the act of rebellion.
In case the crime committed is a composite crime,
A thought of having her husband killed because the conspirator will be liable for all the acts
the latter was maltreating her. She hired some committed during the commission of the crime
persons to kill him and pointed at her husband. agreed upon. This is because, in the eyes of the
The goons got hold of her husband and started law, all those acts done in pursuance of the crime
mauling him. The wife took pity and shouted for agreed upon are acts which constitute a single
them to stop but the goons continued. The wife crime.
ran away. The wife was prosecuted for parricide.
But the Supreme Court said that there was Illustrations:
desistance so she is not criminally liable.
A, B, and C decided to commit robbery in the
2. Conspiracy as a manner or incurring criminal house of D. Pursuant to their agreement, A would
liability - this presupposes that a crime was ransack the second floor, B was to wait outside,
actually committed by two or more persons who and C would stay on the first floor. Unknown to B
agreed to its commission and who performed acts and C, A raped the girl upstairs. All of them will be
to bring about the crime. This agreement and liable for robbery with rape. The crime committed
cooperation is the conspiracy which serves as the is robbery with rape, which is not a complex crime,
basis to make all equally liable under the principle but an indivisible felony under the Article 294 of
that the ―act of one is the act of all‖. There must the Revised Penal Code. Even if B and C did not
be an overt act done before the co-conspirators know that rape was being committed and they
become criminally liable. agreed only and conspired to rob, yet rape was
part of robbery. Rape can not be separated from
Kinds: robbery.
a. Express - conspirators meet and plan prior to
the execution; participants are conspirators A, B and C agreed to rob the house of D. It was
prior to the commission of the crime. agreed that A would go the second floor, B would
stay in the first floor, and C stands guard outside.
b. Implied - did not meet prior to the commission All went to their designated areas in pursuit of the
of the crime; they participated in such a way plan. While A was ransacking the second floor, the
that they are acting in concert. Conspiracy is owner was awakened. A killed him. A, B and C
deduced from the manner of commission. will be liable for robbery with homicide. This is
because, it is well settled that any killing taking
General Rule: The act of one is the act of all. place while robbery is being committed shall be
When conspiracy is established, all who treated as a single indivisible offense.
participated therein irrespective of the quantity or Conspirators Liable as Principals
quality of his participation is liable equally, whether
conspiracy is pre-planned or instantaneous. For conspiracy to exist, there must be an
intentional felony, not a culpable felony, and it
Exception: One or more conspirators committed must be proved that all those to be considered as
some other crime which is not part of the intended PDPs performed the following:
crime.
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A. Unity of Intention / Unity of Purpose - guarding the victim; looking for a
They participated, agreed, or concurred in the buyer of the loot; ―laundering‖ the
criminal design, intent or purposes or proceeds of the crime.
resolution.
Participation In Both (Intention And Action),
1. This participation may be prior to the actual Why Necessary:
execution of the acts which produced the
crime ( Anterior Conspiracy ) or it may 1. Mere knowledge, acquiescence or agreement
be at the very moment the acts are to cooperate, is not enough to constitute one
actually being executed and carried out ( as a party to a conspiracy, absent any active
Instant Conspiracy). participation in the commission of the crime,
2. Hence it is not necessary to prove that with a view to the furtherance of the criminal
before the commission of the crime, the design and purpose. Conspiracy transcends
several accused actually came and met companionship.
together to plan or discuss the commission 2. He who commits the same or similar acts on
of the crime. the victim but is a stranger to the conspiracy is
3. ―Spontaneous agreement or active separately liable. Simultaneous acts by several
cooperation by all perpetrators at the persons do not automatically give rise to
moment of the commission of the crime is conspiracy.
sufficient to create a joint criminal
responsibility‖ (Sim Jr. vs. CA, 428 SCRA Examples:
459) 1. X joined in the planning of the crime but
was unable to join his companions on the
B. Unity of Action / Unity in the execution - day of the crime because he was
All participated in the execution or carrying out hospitalized. He is not liable.
of the common intent, design, purpose or 2. X is the common enemy of A and B who
objective by acts intended to bring about the are strangers to one another. Both A and
common objective. B chanced upon X. A stabbed X while B
shot him. A and B will have individual
1. Each must have performed an act, no liabilities.
matter how small or insignificant so long
as it was intended to contribute to the EXCEPTION: When a person joins a conspiracy
realization of the crime conspired upon. after its formation, he thereby adopts the previous
acts of the conspirators which are admissible
This requires that the principal by direct against him. This is under the Principle of
participation must be at the crime scene Conspiracy by Adoption.
(As a general rule, if there has been a
conspiracy to commit a crime in a Proof of Conspiracy
particular place, anyone who did not
appear shall be presumed to have Best proof of conspiracy: express conspiracy
desisted), EXCEPT in the following
instances: (still a principal by direct Direct proof of conspiracy is not necessary. The
participation) existence thereof maybe inferred under the
a). When he is the mastermind Doctrine Of Implied Conspiracy which directs
b). When he orchestrates or directs the that if two or more persons:
actions of the others from some other (i) Aimed by their acts towards the
place accomplishment of the same unlawful object.
c). His participation or contribution was (ii) Each doing a part so that their acts, though
already accomplished prior to the apparently independent, were in fact
actual carrying out of the crime connected and cooperative.
conspired such: his role was to (iii) Indicating a closeness of personal association
conduct surveillance or to obtain data and a concurrence of sentiment.
or information about the place or the (iv) A conspiracy maybe inferred though no actual
victims; to purchase the tools or meeting among them to concert is proved.
weapons, or the get away vehicle, or
to find a safe house Note: When several persons who do not know
d). His role/participation is to be executed each other simultaneously attack the victim, the
simultaneously but elsewhere, such as act of one is the act of all, regardless of the degree
by creating a diversion or in setting up of injury inflicted by any one of them. All will be
a blocking force (e.g. to cause traffic). liable for the consequences. A conspiracy is
e). His role/participation is after the possible even when participants are not known to
execution of the main acts such as
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each other. Do not think that participants are 1. Disassociate or detach himself from the
always known to each other. plan (desist before an overt act in
furtherance of the crime was committed)
It is enough that at the time of the commission of 2. Prevent the commission of the second or
the offense, the offenders acted in concert, each different or related crime
doing his part to fulfill their common design.
b. Likewise, if for any reason not attributable to
Effect of Conspiracy the law enforcement agents, he was not able
to proceed to the crime scene and/or execute
There will be a joint or common or collective an act to help realize the common objective,
criminal liability, otherwise each will be liable only then he cannot be held liable as a co-
to the extent of the act done by him. conspirator. Thus he is not liable if he got sick,
overslept, or forgot about it, but not when law
In the case of People v. Nierra, SC ruled that agents took him into custody to prevent him
even though there was conspiracy, if a co- from doing his part of the agreement.
conspirator merely cooperated in the commission
of the crime with insignificant or minimal acts, such Thus in Robbery with Homicide, all who
that even without his cooperation, the crime could conspired in the robbery will be liable for the
be carried out as well, such co-conspirator should homicide unless one of the conspirators
be punished as an accomplice only. The reason proved he tried to prevent the homicide.
given is that penal laws always favor a milder form
of responsibility upon an offender. So it is no Conspiracy As a Conspiracy as a
longer accurate to think that when there is a crime Means to commit a
conspiracy, all are principals. crime
Mere agreement is Overt acts are
For example, there was a planned robbery, and the sufficient to incur necessary to incur
taxi driver was present during the planning. criminal liability. criminal liability.
There, the conspirators told the taxi driver that Punishable only when Offenders are punished
they are going to use his taxicab in going to the the law expressly so for the crime itself.
place of robbery. The taxi driver agreed but said, provides.
―I will bring you there, and after committing the
robbery I will return later‖. The taxi driver brought PROPOSAL TO COMMIT A FELONY - when one has
the conspirators where the robbery would be decided to commit a felony but proposes its execution
committed. After the robbery was finished, he to some other person or persons.
took the conspirators back to his taxi and brought
them away. It was held that the taxi driver was General Rule: Still a preparatory act, and therefore, is
liable only as an accomplice. His cooperation was not, as a rule, punishable.
not really indispensable. The robbers could have
engaged another taxi. The taxi driver did not Exception: When there is a specific provision or law
really stay during the commission of the robbery. punishing a specific kind of proposal. (Example:
At most, what he only extended was his proposal to commit treason, rebellion, insurrection,
cooperation. That is why he was given only that coup d‘etat [TRIC]).
penalty for an accomplice.
Requisites of proposal:
For what crime will the co-conspirators be 1. that a person has decided to commit a felony;
liable? and
2. that he proposes its execution to some other
1. For the crime actually committed if it was the person or persons.
crime agreed upon.
2. For any other crime even if not agreed upon, NOTE: It is not necessary that the person to whom
provided it was the direct, natural, logical the proposal is made agrees to commit treason or
consequence of, or related to, or was rebellion.
necessary to effect, the crime agreed upon There is no criminal proposal when:
(e.g.killing the guard). Otherwise only the 1. the person who proposes is not determined to
person who committed the different crime will commit the felony.
be held liable (e.g. killing a stranger) 2. there is no decided, concrete and formal
proposal.
When is a co-conspirator freed from liability? 3. it is not the execution of the felony that is
proposed.
a. Only if he has performed an overt act either
to: Conspiracy Proposal
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commit a felony to commit a b. Less Grave Felonies - those to which the law
and decide to crime and punishes with penalties which in their maximum
commit it. proposes the period was correccional (1 month and 1 day to 6
same to years) in accordance with article 25 of the code; or
another. fine of P200.00 but not more than P6,000.00.
Crimes (The Conspiracy to Proposal to The following are correctional penalties;
crimes in which commit treason, commit treason, Prision correctional
conspiracy and rebellion, rebellion, coup Aresto mayor
proposal are sedition, coup d‘etat. Destierro
punishable are d‘etat, highway
against the robbery, *no proposal to c. Light Felonies - those infractions of law for the
security of the espionage, commit sedition commission of which the penalty is arresto menor
state or direct bribery (1 day to 30 days) or a fine not exceeding P200 or
economic and arson. both.
security)
1. They are punished only in their consummated
When exist Once the Is true only up stages except with respect to light felonies
proposal was to the point against persons or property. The reason is
accepted, a where the party because they produced such light or
conspiracy to whom the insignificant results that society is satisfied if
arises. proposal was they are punished even if only in their
made has not consummated stage.
yet accepted the 2. Only principals and accessories are liable.
proposal.
It is bilateral for It is unilateral, Basis of the Penalty
it requires two one party makes
parties. a proposition to The basis is the penalty prescribed by the RPC and not
the other. the actual penalty imposed by the court. If both
imprisonment and fine are prescribed as penalties, it is
Q: Union A proposed acts of sedition to Union B. Is the penalty of imprisonment which is used as basis.
there a crime committed? Assuming Union B accepts Importance of the classification
the proposal, will your answer be different? (a) To determine the prescription of crime and
prescription of penalty
A: There is no crime committed. Proposal to commit
sedition is not a crime. But if Union B accepts the In the case of light felonies, crimes prescribe in
proposal, there will be conspiracy to commit sedition two months. After two months, the state loses the
which is a crime under the Revised Penal Code. right to prosecute unless the running period is
suspended. If the offender escapes while in
Article 9. Grave felonies, less grave felonies, and detention after he has been loose, if there was
light felonies already judgment that was passed, it can be
promulgated even if absent under the New Rules
CLASSIFICATION OF FELONY (According to their on Criminal Procedure. If the crime is correctional,
gravity) it prescribes in ten years, except arresto mayor,
which prescribes in five years.
a. GRAVE FELONIES - those to which attaches the
capital punishment or penalties which in any of (b) to determine whether complexing of crimes is
their periods are afflictive (6 years and 1 day to proper
reclusion perpetua) in accordance with article 25 of (c) imposition of subsidiary penalty
the code; or fine of more than P6,000.00. They are (d) determination of who are liable for the offense
either 1. Heinous- the penalty is reclusion temporal (e) determination what stage of execution is
to reclusion perpetua or 2. Non heinous. punishable
(f) determination of the period of detention of persons
The afflictive penalties in accordance with lawfully arrested without warrant.
article 25 of the code are:
Reclusion perpetua NOTE: When the RPC speaks of grave and less
Reclusion temporal grave felonies, the definition makes a reference
Perpetual or temporary absolute specifically to Article 25 of the RPC. Do not omit
disqualification the phrase ―In accordance with Article 25‖ because
Perpetual or temporary special disqualification there is also a classification of penalties under
Prision mayor Article 26 that was not applied.

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If the penalty is fine and exactly P200.00, it is only necessary to charge two or more persons who
considered a light felony under Article 9. may have participated in the violation of the
special law
If the fine is imposed as an alternative penalty or
as a single penalty, the fine of P200.00 is B. Whenever the special law adopts the scheme of
considered a correctional penalty under Article 26 penalties under the RPC both as to the
and it prescribes in 10 years. If the offender is nomenclature and range of the penalty
apprehended at any time within ten years, he can 1. In such cases the following may now be applied:
be made to suffer the fine. (a) the effects of modifying circumstances (b)
the graduation of penalties and (c) the
imposition of the accessory penalties. (as well as
Article 10. Offenses not subject to the provisions stages in the execution, degree of participation,
of this code. presence of mitigating and aggravating
circumstances)
Offenses which are or in the future may be 2. In Gallardo vs. Tamayo ( June 2, 1994) it was
punishable under special laws are not subject to the held that the penalty of 6 years and one day to
provisions of this code. This code shall be 12 years is not the same as prision mayor.
supplementary to such laws, unless the latter should
specially provide the contrary. C. When the act is in truth an act mala in se in which
case the presence or absence of criminal intent is
Meaning of the Provision material so that the defenses of good faith and
mistake of fact are allowed
The first sentence states the rule that when an
act/omission is punished by a special law, then it is the D. When the offense punished by the special law is in
special law which shall be applied and the RPC is not to truth a derivative of an act punished under the
supplant or replace or supply lapses in the special law. Revised Penal Code. As for instance: carnapping
and cattle rustling are derivatives of robbery and
The second sentence directs that the RPC shall only be theft.
suppletory unless the special law provides the contrary.
E. The exempting circumstances under Article 12 apply
GENERAL RULE: RPC provisions are supplementary to to Violations of Special Law.
special laws.
F. Participation of Accomplices (Art. 16)
EXCEPTIONS:
1. When special laws provide otherwise; G. Retroactivity of Penal Laws if Favorable to the
2. When provisions of RPC are impossible of Accused (Art. 22)
application, either by express provision or by
necessary implication. H. Confiscation of Instruments Used in the Crime (Art.
45)
Provisions of the RPC which do not, as a rule, apply to
violations of special laws: Approaches if the act is punished both by the
RPC and a special law
1. Article 3 on criminal intent
2. Article 6 on the stages of execution unless the A. The felony will absorb the offense as in the case of
special law punishes an attempted or frustrated political crimes absorbing violations of the
violation of its provisions Dangerous Drugs Law, carnapping or cattle
3. Article 11 on the justifying circumstances rustling and illegal possession of firearms
4. Article 13, 14, 15, on the mitigating, aggravating B. The violation of the special law may be used as an
and alternative circumstances aggravating circumstance to the felony. Thus
5. Articles 17, 18 and 19 on the degree of participation when an unlicensed firearm is used in the killing,
6. Accessory penalties said use is an aggravating circumstance.
7. Article 48 on complexing of crimes C. The act may give rise to two separate charges
8. Graduation of penalties under the RPC and the special law. Examples: (i)
the issuance of bad check may be punished as
Provisions of the RPC Applicable to Special Laws estafa and as Violation of B.P. 22 (ii) one maybe
A. To prevent an injustice to a party convicted both for estafa and for illegal recruitment
1) Article 100 ( Every person criminally liable is (iii) a public officer may be charged both under
also civilly liable) may be applied if there is a the Revised Penal Code and under the Anti Graft
private person whose rights or property may Law.
have been injured, as in Violation of B.P. 22
2) The principle of conspiracy as a mode of RPC Special Penal
incurring liability may be applied whenever it is Laws
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Terms Prision Imprisonment b. Since the accused has admitted
correccional, authorship of the act or omission, it‘s
prision mayor, not anymore necessary for the
etc prosecution to prove his participation
Attempted or Punsihable Gen. Rule: NOT in the commission of the crime or his
Frustrated punishable. identity, hence there may be a
Stages Exception: Unless reverse order of trial in that it will be
otherwise stated. the accused who will be the first to
Plea of Guilty Applicable NA present his evidence .
as Mitigating c. It is incumbent upon the accused to
Circumstance prove his defense by‖ clear, positive
Minimum, Applicable NA and convincing evidence‖ and his
Medium, and conviction is not that the prosecution
Maximum failed to prove his guilt but that he
Periods. was unable to prove his defense.
Penalty for Applicable. Gen. Rule: NA
Accesory or Exception: Unless d. CONSTITUTIONAL DEFENSES
Accomplice stated otherwise.
Defenses based on a Violation of
Chapter 2 the Due Process Clause
JUSTIFYING CIRCUMSTANCES AND
CIRCUMSTANCES, WHICH EXEMPT FROM A. The Statute is VOID-FOR-
CRIMINAL LIABILITY VAGUENESS PRINCIPLE

IMPUTABILITY – the quality by which an act may be 1. Due Process requires that the
ascribed to a person as its author or owner. It implies terms of a penal statute must be
that the act committed has been freely and consciously sufficiently explicit to inform those
done and may therefore be put down to the doer as his who are subject to it what conduct on
very own. their part will render them liable to its
penalties.
RESPONSIBILITY – the obligation of suffering the
consequences of crime. It is the obligation of taking the 2. The Doctrine that a penal statute is
penal and civil consequences of the crime. unconstitutional if it does not
reasonably a person on notice as to
GUILT – an element of responsibility, for a man cannot what the person may not do, or what
be made to answer for the consequences of a crime the person is required to do. As a rule
unless he is guilty. a statue maybe said to be vague
when it lacks comprehensible
CIRCUMSTANCES AFFECTING CRIMINAL standards that ―men of common
LIABILITY, CLASSIFICATIONS: intelligence must necessarily guess at
its meaning and differ as to its
I. Defenses: those which if proven may result to an application‖ It is repugnant to the
acquittal of the offender from the crime charged or constitution in two aspects: (a) it
lead to non-criminal liability. They are the reasons violates due process for failure to
advanced by the accused why he may not be held accord persons, especially the parties
criminally liable. targeted by it, fair notice of the
They are classified into the following: conduct to avoid and (b) it leaves law
enforcers unbridled discretion in
A. As to form: carrying out its provisions and become
an arbitrary flexing of the government
1. Positive or Affirmative - They are often muscle.
called defenses in the nature of
―Admission and Avoidance‖. The accused 3. However an act will be declared
admits authorship of the act or omission void and inoperative on the ground of
charged and imputed to him but he puts vagueness and uncertainty, only upon
up matters to avoid criminally liability or a showing that the defect is such that
which will result to his acquittal. the courts are unable to determine,
within any reasonable degree of
a. All the Justifying, Exempting and certainty, what the legislature
Absolutory Causes are Affirmative intended
defenses.
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Example: An ordinance of the City of 1. A Penal Law must apply to all
Cincinnati that made it illegal for persons who are in the same or
―three or more persons to assemble similar situation.
on any sidewalk and there conduct
themselves in a manner annoying to 2. A statute nondiscriminatory on its
persons passing by‖. face maybe grossly discriminatory in
its operation. Though the law itself be
B. VOID FOR OVERBREADTH fair on its face and impartial in
(Overbroad) PRINCIPLE appearance, yet, if it is applied and
administered by public authority with
1. A penal statue is unconstitutional if an evil eye and unequal; hand, so as
its language is so broad that it to make unjust and illegal
unnecessary interferes with the discriminations between persons in
exercise of constitutional rights, even similar circumstances, material to
though the purpose is to prohibit their rights, there is denial of equal
activities that the government may justice and is prohibited.
constitutionally prohibit.
3. However, the prosecution of one
2. A statute is overbroad where it guilty person while others equally
operates to inhibit the exercise of guilty are not prosecuted, is not, by
individual freedoms guaranteed by the itself, a denial of the equal protection
constitution, such as the freedom of of the laws. There must be present an
religion or speech. When it includes element of ‖clear and intentional
within its coverage not only or purposeful discrimination:” on
unprotected activity but also activity the part of the prosecuting officials.
protected by the constitution.
2. Negative - the accused denies authorship
3. This principle applies more to or having performed the act or omission
felonies or offenses which conflict imputed to him. Examples are denial, alibi,
with the freedom of expression and mistaken identity.
association such as prosecution for
libel, inciting to rebellion or sedition, B. As to Effect:
and violation of the Election Code.
1. Total or Perfect - those the effect of which
Example: In Adiong s. COMELEC, 207 will totally exonerate the accused.
SCRA 712, SC declared as void that Example: a complete justifying
portion of the Election Code circumstance, amnesty.
prohibiting the posting of election 2. Partial - those which are intended to lessen
propaganda in any place-including the liability of the accused. They include
private vehicles- other than in the proof the offense is a lesser offenses, or
designated common poster area. that it is of a lower stage of execution,
that the accused has a lower participation
C. VOID FOR LACK OF PUBLICITY and is not the principal.

1. The Penal Statue was not C. As to source:

publicized in the manner provided for 1. Legal - those provided for by statutes or
by the Constitution, such as by the constitution. For example:
publication in a newspaper of general prescription of crimes, marriage of the
circulation or in the Official Gazette. offender and offended, pardon, double
Hence there is no constructive note to jeopardy, amnesty.
the public and the principle that 2. Factual - those based on the circumstances
―Ignorantia legis nemenem excusat‖ of the commission of the crime relating to
will not apply. the time, place, manner of commission;
identification of the accused; reasons for
Defenses Based on the Equal the commission. For example: alibi, sel-
Protection Clause defense; insanity, mistaken identity.

A. DISCRIMINATORY AND COMPLETE DEFENSES IN CRIMINAL CASES

SELECTIVE APPLICATION 1. Any of the essential elements of the crime charged
is not proved by the prosecution and the elements
proved do not constitute any crime.
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2. The act of the accused falls under any of the rights, the enjoyment of which is protected by law.
justifying circumstances. Thus, it includes:
3. The act of the accused falls under any of the 1. The right to honor. Hence, a slap on the face is
exempting circumstances. considered as unlawful aggression directed against
4. The case is covered by any of the absolutory the honor of the actor (People vs. Sabio, 19 SCRA
causes. 901).
5. Guilt of the accused not established beyond 2. The defense of property rights, only if there is also
reasonable doubt. an actual and imminent danger on the person of
6. Prescription of Crimes. the one defending (People vs Narvaez, 121 SCRA
389).
Circumstances Affecting Criminal Liability as
Specifically Provided under the RPC: Elements:
1. Unlawful aggression;
Art. 11. Justifying circumstances 2. reasonable necessity of the means employed
to repel it; and
JUSTIFYING CIRCUMSTANCES - are those where the 3. lack of sufficient provocation on the part of the
act of a person is said to be in accordance with law, so person defending himself.
that such person is deemed not to have transgressed
the law and is free from both criminal and civil liability. Note: The first two are common to the three Use-
There is no civil liability, except in par. 4 of Art. 11, of-Force-Defenses.
where the civil liability is borne by the persons
benefited by the act. UNLAWFUL AGGRESSION
- is equivalent to an actual physical assault or,
a. There is no mens rea or criminal intent. at least
b. The circumstances pertain to the act and not to - threatened assault of an immediate and
the actor. Hence all who participated in the act will imminent kind which is offensive and positively strong,
be benefited. Thus if the principal is acquitted showing the wrongful intent to cause injury.
there will be no accomplices and accessories.
c. These apply only to intentional felonies, not to acts Aggression, Kinds of:
by omissions or to culpable felonies or to violations Lawful
of special laws. a) in the exercise of a right
d. They are limited to the 6 enumerated in Article 11. b) in the fulfillment of a duty

The Use of Force Defenses - These are the Unlawful

justifying circumstances where the accused is allowed a) ACTUAL (REAL/MATERIAL) – danger must
to use force i.e to inflict injury upon the victim or to be present, that is, actually in existence.
destroy property. The force may either be (i) Deadly b) IMMINENT – danger is impending or at the
Force or that which can result to serious physical point of happening. It must not consist in a
injuries or even to the death of the victim and (ii) Non- mere threatening attitude nor must it be
Deadly but reasonable force. merely imaginary. The intimidating attitude
must be offensive and positively strong.
The Use- of-Force-Defenses include (i) self-Defense (ii)
Defense of Relative and (iii) Defense of Stranger. Unlawful Aggression, Some Principles:

Paragraph 1. Self defense  Unlawful aggression is an indispensable

requisite.
Anyone who acts in defense of his person or rights,  Aggression must be ―unlawful‖ i.e the victim
provided that the following circumstances concur: was not acting in accordance with laws, or
under color of right. Thus the following do not
First. Unlawful aggression; constitute ―unlawful‖ aggression: (i) the act of
a property owner in pushing out an intruder
Second. Reasonable necessity of the means employed for refusing to leave peacefully (ii) the act of a
to prevent or repel it; policeman in handcuffing a law violator (iii) the
scolding by a teacher of an unruly student.
Third. Lack of sufficient provocation on the part of the  The aggression must come from the victim.
person defending himself.  At the time of the defense, the aggression
must still be continuing and in existence. In
Concept of Self Defense the following instances there is no more
aggression and if the accused still uses forces,
Self-defense includes not only the defense of the he becomes the aggressor:
person or body of the one assaulted but also that of his
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a). When the attacker desists, or is prevented or  When the aggressor flees, unlawful aggression
restrained by third persons; or is divested of no longer exists. (P/P vs. Alconga 78 Phil 366)
his weapon, or is overpowered  No unlawful aggression when there is
b). When the attacker retreats unless it is to agreement to fight EXCEPT when there is a
secure a more advantage position. violation of the agreement.
 One who voluntarily joined a fight cannot
 Q: When the person attacked was able to claim self defense.
wrest the weapon or has disarmed his attacker,  There is unlawful aggression even if the
may he use the weapon against the attacker? A: aggressor used a toy pistol, provided that the
No because the aggression has ceased unless the accused believed it was a real gun. (P/P vs. Boral
attacker persist to grab back the weapon for in 11 CA Rep. 914)
such case, there is still imminent danger tot his life  Mere threatening attitude is not unlawful
or limb. aggression. (US vs. Guy-sayco 13 Phil 292)
 There must be no appreciable lapse of time  The person defending is not expected to
between the unlawful aggression and the act done control his blow.
to repel or prevent it
 Presumption as to the Aggressor: Where there Q: A and B are long standing enemies. Because of
is no direct evidence who was the aggressor, it their continuous quarrel over the boundaries of their
may be presumed that the one who was deeply adjoining properties, when A saw B one afternoon, he
offended by the insult was the one who had a right approached the latter in a menacing manner with a
to demand an explanation from the perpetrator of bolo in his hand. When he was about five feet away
the insult and he must have been the one who from B, B pulled out a revolver and shot A on the
struck first if the proffered explanation was chest, killing him. Is B criminally liable? What crime
unsatisfactory ( PP. vs. Ramos, 77 Phil. 4) was committed, if any?
 Unlawful aggression is equivalent to assault or
at least threatened assault of an immediate and A: The act of A is nothing but a provocation. It cannot
imminent kind. (Pp vs. Alconga 78 Phil 366) be characterized as an unlawful aggression because in
 The danger or peril to one‘s life or limb must criminal law, an unlawful aggression is an attack or a
be present, that is, must actually exists. threatened attack which produces an imminent danger
 There must be actual physical force or actual to the life and limb of the one resorting to self-defense.
use of weapon. In the facts of the problem given above, what was said
 No unlawful aggression when there is no was that A was holding a bolo. That bolo does not
imminent and real danger to the life and limb of produce any real or imminent danger unless a raises
the accused. his arm with the bolo. As long as that arm of A was
 Paramour surprised in the act of adultery down holding the bolo, there is no imminent danger to
cannot invoke self-defense if he killed the offended the life or limb of B. Therefore, the act of B in
husband who was assaulting him.(US vs. Merced shooting A is not justified.
39 Phil 198)
 ―Foot-kick greeting‖ is not an unlawful At what point may a person attacked put up a
aggression. (P/P vs. Sabio 19 SCRA 901) defense?
 A strong retaliation for an injury or threat may
amount to an unlawful aggression. (US vs. Carerro 1. Retreat-to-the-Wall Principle. The doctrine
9 Phil 544) which states that before a person is entitled to
 The attack made by the deceased and the use force in self defense he must first attempt
killing of the deceased by the defendant should to withdraw from the encounter by giving as
succeed each other without appreciable interval of much ground as possible and it is only there is
time. (P/P vs. Arellano C.A 54 O.G. 7252) no more place to retreat that he may now use
 A public officer exceeding his authority may force to defend himself. This doctrine is
become unlawful aggressor. (P/P vs. Hernandez 59 impractical and has been abandoned.
Phil 343)
 Nature, character, location and extent of 2. Stand-Your-Ground-When-In-The-Right
wound of the accused allegedly inflicted by the Principle. The doctrine which holds that when
injured party may belie claim of self defense. (P/P a person is attacked in the place where he has
vs. Tolentino 54 Phil 77) a right to be, he need not retreat but he may
 Improbability of the accused being the immediately use force to defend himself. The
aggressor belies the claim of self defense.(P/P vs. law does not require a person to retreat when
Diaz 55 SCRA 178) his assailant is rapidly advancing upon him
 The fact that the accused declined to give any with a deadly weapon. REASON: he runs the
statement when he surrendered to a policeman is risk of being attacked in the back of the
inconsistent with the plea of self defense. (P/P vs. aggressor.
Manansala 31 SCRA 401)
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a). This is the prevailing doctrine followed. It Reason: The person assaulted does not have
applies to all especially to law enforcement sufficient opportunity or time to think and
agents who are expected to stand their ground calculate.
and to subdue, overcome and arrest criminals.
b) A related doctrine is the Castle Doctrine. The Reasonableness Of The Means Include Two
When a person is attacked in his dwelling (a Aspects
man‘s house is his castle) he is not expected
to retreat but he may immediately use force to (1) Reasonableness of the Mode of Defense
defend himself and his dwelling. This is availed (2) Reasonableness of the Choice of Weapon.
of where armed persons intrude into a
dwelling as it is natural to expect that the A person under attack has the right to defend, but as it
armed persons would use their weapons at proper for him to sue a weapon and if so, whether the
any time and upon any occupant of the weapon chosen is commensurate to the attack.
dwelling.
The law requires Rational Necessity and Rational
May the attacker claim self defense? Equivalence of Weapons and not Factual
Equality
1. As a rule one who initiates an attack can not
claim self defense being himself the aggressor. This is to be determined by considering both the
2. However he is entitled to an incomplete self subjective and objective aspects of the situation. They
defense: (a) if he is met with excessive force in include the following:
return and is forced to defend himself or (b) 1. The imminence of the danger as it appeared to the
When he withdraws or retreats from the attack accused coupled by the instinct for self-
but is pursued by the intended victim and he had preservation.
to defend himself. 2. When the attacker is armed, consider the instrument
of aggression and the means of defense most
Rule when there is an agreement to a fight or readily and immediately available to the person
when one accepts a challenge to a fight attacked.
3. Consider the physique, size, age, sex, knowledge of
Neither one can put up self defense because each is martial arts (the hands and feet of boxers, martial
an aggressor to the other and both anticipate the artists, wrestlers, are considered deadly weapons)
aggression coming from the other. The law leaves of the attacker and the person attacked, including
them where they are. Except when one is attacked the reputation of the attacker as a person of
by the other in violation of the terms and conditions violence.
of the fight, such as to the time, place and choice of 4. Consider whether under the time and place of the
weapons agreed upon, then the person attacked attack, the person attacked can call for immediate
may claim self defense. assistance.
5. Consider the number of the attackers.

REASONABLE NECESSITY OF THE MEANS When can Deadly Force be used?

EMPLOYED TO PREVENT OR REPEL THE ATTACK
1. When there is an attack on a person‘s life or limbs
The question is whether the defense is appropriate and i.e he may either be killed or seriously injured
commensurate to the type, degree, and intensity of the 2. In case of an attack upon one‘s property, it must be
aggression taking into consideration the place, occasion coupled with an attack on the person‘s life or limb
and surrounding circumstances of the aggression. which promises death or serious bodily harm,
otherwise only reasonable force must be used.
Test of Reasonableness
If there is no attack on the person‘s life or limb,
1. Weapon used by the aggressor reasonable force may still be used as is necessary
2. Physical condition, character, size and other to protect the property from being seized,
circumstances of the aggressor destroyed or interfered with under the Doctrine
3. Physical condition, character, size and other of Self Help provided for In Article 429 of the
circumstances of the person defending himself New Civil Code.
4. Place and Occasion 3. In case of an attack on chastity, deadly force is
allowed if there is a clear intent to rape, which
Note: Perfect equality between the weapons used, intent maybe negated by the circumstances of time
nor material commensurability between the means and place; if there is no clear intent to rape only
of attack and defense by the one defending reasonable force must be used.
himself and that of the aggressor is not required. 4. In case of attack on one‘s honor or reputation, the
use of physical force is never justified. When one is
libeled or defamed, he may fight back with a
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similar libel or defamation provided it is only to the 4. Defense of Chastity
extent which is necessary to free himself from the 5. Defense of Honor/Reputation (Defense in case of
effects of the libel/defamation. This is called the “ libel)
Doctrine of Justified Libel” or “The Privilege
of a Reply Doctrine”. NOTE: Under RA 9262 (Anti-Violence against Women
5. The Principle of Self defense and Use of Deadly and their Children Act of 2004), victim-survivors who
Force does not apply to situations where a person are found by the court to be suffering from Battered
is injured or killed as a result of the installation of Woman Syndrome (BWS) do not incur criminal and civil
Protective Devises/Methods such as by the liability despite the absence of the necessary elements
installation of live electric wires on a fence, or by for the justifying circumstance of self-defense in the
attack dogs let loose in one‘s yard. RPC. The law provides for an additional justifying
circumstance.
LACK OF SUFFICIENT PROVOCATION ON THE
PART OF THE PERSON CLAIMING SELF DEFENSE, Battered Woman Syndrome – refers to a scientifically
Concept defined pattern of psychological and behavioral
symptoms found in women living in battering
The person attacked must not have given sufficient relationships as a result of cumulative abuse.
reason for the victim to attack him.
Battery – refers to any act of inflicting physical harm
Provocation - includes any conduct which excites, upon the woman or her child resulting to physical and
incites or induces a person to react, it is conduct which psychological or emotional distress.
vexes or annoys, irritates or angers another.
Some Related Provisions of RA 9262
Situations When Lack of Sufficient Provocation
(3rd Element) is Present Legal Provision: Created under R.A. 9262 known
as the “Anti Violence Against Women and their
1. When no provocation at all was given by the Children Act of 2004”
accused.
Section 26: Battered Woman Syndrome as a Defense:
When a property owner angrily demands why the Victim-survivors who are found by the courts to be
victim built a fence on his land, which in turn suffering from battered woman syndrome do not incur
angered the victim to attack the accused, such any criminal and civil liability notwithstanding the
conduct on the part of the accuse is not absence of any of the elements for justifying
provocation. circumstances of self-defense under the Revised Penal
code.
2. When there was provocation but it was not sufficient
i.e. it may have vexed or annoyed but was not In the determination of the state of mind of the woman
sufficient for the victim to make the kind of attack who was suffering from battered woman syndrome at
he employed upon the accused. The sufficiency the time of the commission of the crime, the courts
must be measured in relation to the reaction of the shall be assisted by expert psychologists.
victim.
Concept of BWS
3. When sufficiency provocation was given but it was
not immediate to the attack. a). It is a psychological condition in which a woman
commits physical violence against her husband or
Examples Of Sufficient Provocation mate as a result of the continued physical ort
1. Imputing to the victim the utterance of vulgar mental abuse to which he has subjected her.
language.
2. Trespassing into the property of the victim. b). Under this defense a woman who is constantly
3. Jokes made in poor taste or bad mouthing the abused by her husband may be justified in using
victim. force at a time when there is not strictly
4. Destroying the victim‘s property. ―immediate danger‖. The theory is that women in
such circumstances have two choices: either wait
Rights Included in Self-Defense/Kinds of Self- for their husband to kill them or strike first in a
Defense form of offensive self-defense.

1. Defense of Person (Life and Limb) c). Development in the Philippines

2. Defense of Property (only if there is also an actual
and imminent danger on the person of the one 1. The Case in which it was first recognized was
defending) People vs. Marivic Genosa, Jan 15, 2004 419
3. Defense of Rights Protected by Law (Civil, political SCRA 537) involving a wife who was convicted of
and natural)
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Parricide for killing her husband who was tries to make up for it begging her
sleeping. forgiveness and promising never to beat
her again. The woman also tries to
a). Battered woman: a woman who is repeatedly convince herself that the battery will
subjected to any forceful physical or never happen again; that her partner
psychological behavior by a man in order to will change for the better; that this
coerce her to do something he wants her to good, gentle and caring man is the real
do without concern for her rights.. (they) person she loves.
include wives or women in any form of
intimate relationship with men. Furthermore, d). The foregoing cycle happens because /
in order to be classified as a battered Characteristics of the Syndrome: (i) the
woman, the couple must go through the woman believes that the violence was her
cycle at least twice‖ fault (ii) the woman fears for her life and her
children‘s lives (iii) the woman has an
b) Battered women exhibit common personality irrational belief that the abuser is all
traits, such as low self esteem, traditional powerful and that she is beer off with him
beliefs about home, the family and the than without him for financial reasons and
female sex role; emotional dependence upon (iv) Love: in spite of constant assault, after a
the dominant male; the tendency to accept little cajoling, the woman is convinced that
responsibility for the batterer‘s action; and the man still loves her.
false hopes that the relationship will
improve. Q: Must there be unlawful aggression at the time
of the killing?
c) The syndrome is characterized by the so- A: In The Genosa case, it was ruled that the
called ―Cycle of Violence‖ which has three accused was not entitled to complete
phases: exoneration because there was no unlawful
aggression, no immediate and unexpected attack
(i) The Tension Building Phase: minor on her at the time she shot him. But the severe
battering occurs: it could be verbal or beatings repeatedly inflicted constituted a form
slight physical abuse or other form of of cumulative psychological paralysis: diminished
hostile behavior. The woman tries to her will power, thereby entitling her to the
pacify the man through a show of kind, mitigating factor under paragraphs 9 and 10 of
nurturing behavior; or by simply staying Article 13.
out of his way. What actually happens
is that she allows herself to be abused in HOWEVER, RA 9262 has liberalized it in view of
way that to her fare minor. Alls he wants the provisions which reads: ―… notwithstanding
is to prevent the escalation of the the absence for the elements of self defense…‖
violence. But her placatory and passive Paragraph 2. Defense of Relative
behavior legitimizes his belief that he
has the right to abuse her. Anyone who acts in defense of the person or rights
of his spouse, ascendants, descendants, or legitimate,
(ii). The Acute Battering Phase: this is natural, or adopted brothers or sisters or of his
characterized by brutality, relatives by affinity in the same degrees, and
destructiveness and sometimes death. those by consanguinity within the fourth civil degree,
The woman deems this incident as provided that the first and second requisites prescribed
unpredictable yet also inevitable. She in the next preceding circumstance are present, and
has no control: only the man can put an the further requisite, in case the provocation was given
end tog the violence She realizes that by the person attacked, that the one making defense
she can not reason with him and that had no part therein.
resistance would only exacerbate her
condition. She has a sense of Elements
detachment although she may later 1. Unlawful Aggression;
clearly remember the details. Her 2. Reasonable necessity of the means employed to
apparent passivity is because the man is repel it; and
stronger physically and it is useless to 3. In case the provocation was given by the person
fight back. attacked, that the one making defense had no part
therein.
(iii). The Tranquil, Loving or Non-Violent
Phase. The couple experience profound Relatives Who Can Be Defended (SADBroSAC)
relief. On one hand the man shows a 1. Spouse
tender and nurturing behavior and he 2. Ascendants
knows he has been viciously cruel and 3. Descendants
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4. Legitimate, natural or adopted brothers or sisters For self defense: 1. It is the natural and inherent
5. Relatives by affinity in the same degree right of every person to defend himself 2. The state
6. Relatives by consanguinity within the fourth civil can not protect its citizens at all times hence it gives
degree them the right to defend themselves

The third element: The One Defending Had No For Defense of Relative: It is in recognition of the
part in the Provocation, Present In The strong ties of blood i.e blood is thicker than water.
Following Instances:
1. The relative defended did not give any provocation For Defense of Strangers: What a man can do in his
at all defense, another can do for him.
2. If the relative gave provocation, the one defending
was not aware of it Factors Affecting the Credibility of the Defenses
3. If the relative gave provocation, the one defending
did not participate either actually or morally, as by 1. The claim of self defense, ( as well as of relative
encouragement and stranger) are inherently weak and easily
fabricated, and must be corroborated by
NOTE: Even if the person defending acted out of evil independent evidence.
motive, such as revenge, this defense is still available. 2. The location, number and nature of the wounds of
The relative defended may be the original the victim must be considered and may disprove
aggressor. All that is required is that the relative the claim of self-defense.
defending did not take part in such provocation. 3. The lack of wounds of the accused may disprove
self defense and proof the lack of aggression on
Paragraph 3. Defense of Stranger the part of the victim
4. A refusal to give a statement upon surrendering, or
Anyone who acts in defense of the person or rights non-assertion thereof, is inconsistent with a claim
of a stranger, provided that the first and second of self defense. A claim of self-defense, if true,
requisites mentioned in the first circumstance of this must be asserted promptly.
article are present and that the person defending be
not induced by revenge, resentment or other evil Paragraph 4. State of Necessity (Avoidance of
motive. Greater Evil or Injury)

STRANGER - Any person not included in the Any person who, in order to avoid an evil or
enumeration of relatives mentioned in paragraph 2 of injury, does an act which causes injury to another,
this article. provided that the following requisites are present:

Elements First. That the evil sought to be avoided actually exists;

1. Unlawful Aggression;
2. Reasonable necessity of the means employed to Second. That the injury feared be greater than that
repel it; and done to avoid it;
3. Person defending be not induced by revenge,
resentment or other evil motive. Third. That there be no other practical or less harmful
means of preventing it.
Note: Distinction between relative and stranger is
important because of the element of evil motive. Elements:
1. evil sought to be avoided actually exists;
The third element: The Person Defending Should 2. injury feared be greater than that done to avoid it;
Not Be actuated by Revenge, Resentment, or and
Other Evil Motive 3. no other practical or less harmful means of
preventing it.
The accused must prove he acted out of an honest
desire to save the life or limb or property of the NOTE: The greater evil/necessity should not be
stranger and not because his true intention was to brought about by the negligence or imprudence of the
harm the victim. If otherwise he is deemed to be actor.
committing a crime there being present the elements
of actus reus and mens rea. The evil which brought about the greater evil must not
result from a violation of law by the actor.
Q: Suppose it was the stranger who gave provocation?
A: The accused is entitled to this defense. When the accused was not avoiding any evil, he cannot
invoke the justifying circumstance of avoidance of a
Rationale Behind These Defenses greater evil or injury. (P/P vs Ricohermoso 56 SCRA
431)
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Generally, there is No civil liability EXCEPT par 4 when
there is another person benefited in which case the When injuries are inflicted on a suspect who resists a
latter is the one liable. valid arrest

Civil liability referred to in a state of necessity is based Shooting an escaping prisoner in order to immobilize
not on the act committed but on the benefit derived and prevent his escape, even if the shooting resulted to
from the state of necessity. So the accused will not be his death. But not shooting him again after he was
civilly liable if he did not receive any benefit out of the already immobilized, or he gives up.
state of necessity. On the other hand, persons who did
not participate in the damage or injury would be pro Killing of rebels by soldiers is not homicide or murder;
tanto civilly liable if they derived benefit out of the or destruction of private property in a firefight between
state of necessity. rebels/criminals and soldiers/law enforcers.
Illustrations:
Amputation of patients by physicians in order to save
For example, A drove his car beyond the speed limit so their lives.
much so that when he reached the curve, his vehicle
skidded towards a ravine. He swerved his car towards Lawyers calling witnesses as liars are not liable for
a house, destroying it and killing the occupant therein. defamation or unjust vexation.
A cannot be justified because the state of necessity
was brought about by his own felonious act. Scolding lazy students by teachers is not defamation.

A and B are owners of adjoining lands. A owns the Executioners are not criminally liable.
land for planting certain crops. B owns the land for
raising certain goats. C used another land for a A lawyer who writes a reply-letter describing the
vegetable garden. There was heavy rain and floods. adverse party as untruthful and hypocrite.
Dam was opened. C drove all the goats of B to the
land of A. The goats rushed to the land of A to be Application in Relation to Law Enforcers Who
saved, but the land of A was destroyed. The author of Used Force and kill or Injure Suspects/accused
the act is C, but C is not civilly liable because he did
not receive benefits. It was B who was benefited, 1. Cabanlig vs. Sandiganbayan ( July 28, 2005)
although he was not the actor. He cannot claim that it
was fortuitous event. B will answer only to the extent FACTS: A suspect who was onboard a police
of the benefit derived by him. If C who drove all the vehicle, suddenly grabbed the armalite rifle of one
goats is accused of malicious mischief, his defense of the policemen and jumped from the vehicle. One
would be that he acted out of a state of necessity. He of the policemen shouted ―hoy‖ and the accused
will not be civilly liable. policeman simultaneously shot the suspect three
times resulting to the death of the suspect. Is he
Paragraph 5. Fulfillment of Duty/Lawful Exercise policeman liable for the death of the victim?
of Right or Office .
HELD: No. He acted in lawful performance of duty.
Any person who acts in the fulfillment of duty or in the
lawful exercise of a right or office. A policeman in the performance of duty is justified
in using force as is reasonably necessary to secure
Elements: and detain the offender, over come his resistance,
prevent escape, recapture him if necessary and
1. accused acted in the performance of a duty or protect himself form bodily injury. In case injury or
in the lawful exercise of a right or office; death results from the policeman‘s exercise of such
2. injury caused or the offense committed be the force, the policeman could be justified… if the
necessary consequence of the due policeman had used necessary force. Since the
performance of duty or the lawful exercise of policeman‘s duty requires him to overcome the
such right or office; and offender, the force exerted … may therefore differ
3. accused was not negligent or that there was from that which ordinarily may be offered in self-
no abuse, or excess or oppression on the part defense. However, a policeman is never justified in
of the accused using unnecessary force or in treating the offender
with wanton violence, or in resorting to dangerous
OFFICE OR DUTY - does not necessarily refer to a means when the arrest could be effected otherwise.
public office or public duty as it is to be understood in ( Cabanlig vs. Sandiganbayan ( July 28, 2005).
its generic sense. It includes private office or
employment or duty as well as the exercise of a calling 2. Re: Duty to Issue Warning.
or a profession or occupation.
The duty to issue a warning is not absolutely
Illustrations: mandated at all times and at all cost, to the
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detriment of the life of law enforcers. The directive at the fleeing criminal, he cannot be made criminally
to issue a warning contemplates a situation where liable. However, this is true only if it was the person
several options are still available to the law who stabbed was the one killed. But if, let us say, the
enforcers. In exceptional circumstances… where the policeman was stabbed and despite the fact that the
threat to the life of a law enforcer is already aggressor ran into a crowd of people, the policeman
imminent, and there is no other option but to use still fired indiscriminately. The policeman would be
force to subdue the offender, the law enforcer‘s held criminally liable because he acted with imprudence
failure to issue a warning is excusable. ( Cabanlig in firing toward several people where the offender had
vs. Sandiganbayan) run. But although he will be criminally liable, he will be
given the benefit of an incomplete fulfillment of duty.
Illustration:
Paragraph 6. Obedience to a Lawful Order of a
In People v. Oanis and Callanta, the accused Chief Superior
of Police and the constabulary soldier were sent out to
arrest a certain Balagtas, supposedly a notorious Any person who acts in obedience to an order
bandit. There was an order to kill Balagtas if he would issued by a superior for some lawful purpose.
resist. The accused arrived at the house of a dancer
who was supposedly the girlfriend of Balagtas. When Elements:
they were there, they saw a certain person who 1. An order was issued by a superior acting within the
resembled Balagtas in all his bodily appearance sphere of his lawful rights;
sleeping on a bamboo bed but facing the other 2. The order is for some lawful purpose; and
direction. The accused, without going around the 3. The means to carry out the order is lawful.
house, started firing at the man. They found out later
on that the man was not really Balagtas. They tried to SUPERIOR - includes any person higher in rank to the
invoke the justifying circumstance of having acted in accused and who is entitled to demand obedience for
fulfillment of a duty. the accused. Such rank is not necessarily in the AFP or
PNP but includes both public and private employment
The second requisite is absent because they acted with and extends even to rank in social standing or in
negligence. There was nothing that prevented them personal relations. He cannot invoke this justifying
from looking around the house and looking at the face circumstance.
of the fellow who was sleeping. There could not be
any danger on their life and limb. Hence, they were Rule When the Order is Patently Illegal
held guilty of the crime of murder because the fellow
was killed when he was sleeping and totally General Rule: Subordinate cannot invoke this
defenseless. However, the Supreme Court granted circumstance.
them the benefit of incomplete justification of
fulfillment of duty and the penalty was reduced by one Exception: When there is compulsion of an irresistible
or two degrees. force, or under impulse of uncontrollable fear (when
not aware of its illegality and was not negligent in case
Do not confuse fulfillment of a duty with self- order not patently illegal)
defense. Subordinate is not liable for carrying out an illegal
order if he is not aware of its illegality and he is not
Illustration: negligent.

A, a policeman, while waiting for his wife to go home, Article 12. EXEMPTING CIRCUMSTANCES
was suddenly stabbed at the back by B, a hoodlum,
who mistook him for someone else. When A saw B, he EXEMPTING CIRCUMSTANCES (or the circumstances
drew his revolver and went after B. After firing a shot for non-imputability) – are those grounds for
in the air, B did not stop so A shot B who was hit at a exemption from punishment, because there is wanting
vital part of the body. B died. Is the act of A justified? in the agent of the crime any of the conditions which
makes the act voluntary, or negligent.
Yes. The justifying circumstance of self-defense
cannot be invoked because the unlawful aggression There is a crime but NO criminal.
had already ceased by the time A shot B. When the
unlawful aggressor started fleeing, the unlawful a. BASIS: The exemption from punishment is based
aggression ceased. If the person attacked runs after on the complete absence of intelligence, freedom
him, in the eyes of the law, he becomes the unlawful of action, or intent, or on the absence of
aggressor. Self-defense cannot be invoked. You apply negligence on the part of the accused.
paragraph 5 on fulfillment of duty. The offender was b. These defenses pertain to the actor and not the act.
not only defending himself but was acting in fulfillment They are personal to the accused in whom they
of a duty, to bring the criminal to the authorities. As are present and the effects do not extend to the
long as he was not acting out of malice when he fired other participants. Thus if a principal is acquitted,
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the other principals, accessories and accomplices INSANE – one who acts with complete deprivation of
are still liable. intelligence/reason or without the least discernment or
c. They apply to both intentional and culpable felonies with total deprivation of freedom of will. Mere
and they may be available in violations of special abnormality of the mental faculties will not exclude
laws. imputability. Defect in the brain.
d. They are limited to the 7 enumerated in Article 12.
e. Burden of Proof: Any of the circumstances is a A person medically insane is legally insane but not vice-
matter of defense and must be proved by the versa.
defendant to the satisfaction of the court.
The following are considered medically sane but legally
JUSTIFYING EXEMPTING insane:
CIRCUMSTANCE CIRCUMSTANCE 1. mental aberration due to illness, e.g. malaria
1. It affects the 1. It affects the actor not 2. dementia praecox (unable to distinguish between
act not the actor. the act. fantasy and reality)
2. The act is 2. The act complained of 3. schizophrenia
considered to have is actually wrongful, but 4. manic depressive psychosis ( they feel that everyone
been done within the actor is not liable. is against them)
the bounds of law; 5. lack of control-consciousness (while dreaming
hence, legitimate 6. somnambulism
and lawful in the 7. epilepsy
eyes of the law. 8. violent maniac
3. Since the act is 3. Since the act The following are not medically nor legally insane:
considered lawful, complained of is actually 1. feebleminded
there is no crime. wrong there is a crime 2. amnesia caused by too much alcohol intake
but since the actor acted 3. acts resulting from passion (temporary insanity)
without voluntariness, 4. eccentric
there is no dolo nor culpa 5. mental weakness
6. depressed due to physical illness
7. involuntary sublimal t.v. intoxication (too much t.v.
4. Since there is 4. Since there is a crime watching)
no crime, nor a committed though there 8. pre-menstrual syndrome
criminal, there is is no criminal, there is 9. twinky defense (due to large consumption of white
also no criminal or civil liability, but there is sugar)
civil liability. no civil liability in 10. hypnosis ( no medical proof of insanity; no judicial
(except Art. 11, paragraphs 4 (injury acknowledgement)
par. 4 - state of by mere accident) and
necessity) 7 (lawful cause) of General Rule: Exempt from criminal liability.
Article 12.
Exception: The act was done during lucid interval.

Paragraph 1. Imbecility or Insanity Note: Defense must prove that the accused was
insane at the immediately prior to or at the time of the
An imbecile or an insane person, unless the commission of the crime because the presumption is
latter has acted during a lucid interval. always in favor of sanity.

When the imbecile or an insane person has Who may prove insanity? Experts (psychologist,
committed an act which the law defines as a psychiatrist), opinion of intimate acquiantance
felony(delito), the court shall order his confinement in
one of the hospitals or asylums established for persons To appreciate insanity: there must be complete
thus afflicted, which he shall not be permitted to leave deprivation of intelligence (no discernment, deprived of
without first obtaining the permission of the same reason), (Sir Sagsago: thus the following two tests are
court. adopted in the Philippines)

IMBECILE – one while advanced in age has a mental Two (2) tests for exemption on the ground of
development comparable to that of children between 2 Insanity:
and 7 years old. He is exempt in ALL CASES from
criminal liability. 1. the test of COGNITION - whether the accused
-(Sir Sagsago) defect of reason to such degree acted with complete deprivation of intelligence
that his mental capacity is diminished; deprivation of in committing said crime; knowledge of right
intelligence; it is permanent; it includes moron. and wrong.

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M‟naghten test (also considered as test of DISCERNMENT - mental capacity of a minor to fully
cognition; it is a test of right and wrong) appreciate the consequences of his unlawful act. (Pp vs
Navarro CA 51 OG 4062); it is the ability to know what
Propositions: is right and wrong; knowledge of the consequences of
a.at the time the act was committed; one‘s acts. This is shown by:
b. the defendant suffers from defect of reason or
from disease of mind 1. the manner the crime was committed
c.causes defendant to not to know what is the 2. conduct of the offender after its commission
nature and quality of act taken or that his act
was wrong Note: Under R.A. 9344 (Pangilinan law), a minor
above fifteen (15) but below eighteen (18) commits a
2. the test of VOLITION - whether the accused crime, he is exempt from criminal liability unless it is
acted in the total deprivation of freedom or shown that he acted with discernment. However,
will. should the minor above fifteen but below eighteen be
found guilty, R.A. 9344 also mandates the Courts to
Note: These tests are applied in the Philippines. The AUTOMATICALLY suspend the sentence. In all cases,
word crazy is not synonymous with the word insane the minor offender must be referred to the appropriate
government agency for rehabilitation.
Effects of Insanity of the Accused Also, under Section 5 of RA 8539 (Family Court
1. At the time of commission of the crime – exempt Law), there is no need to apply or file a Petition for
2. During trial – liable but there will be suspension of suspension of sentence. The law mandates an
arraignment, trial or promulgation of judgment, automatic suspension of service of sentence of the
accused is committed to a hospital. youthful offender.
3. After judgment or while serving sentence –
execution of judgment is suspended, the accused Minor above 15 but below 18 years old may
is committed to hospital. The period of also be exempted even with discernment in the
confinement in the hospital is counted for the following crimes:
purpose of prescription of the penalty. a. status offense (e.g. curfew)
b. vagrancy
Paragraph 2. Under 9 years of Age c. mendicancy
d. PD 1602 (sniffing or possession of rugby)
NOTE: On April 28, 2006, Gloria Arroyo signed e. Prostitution
into law Republic Act 9344 otherwise known as
“JUVENILE JUSTICE and WELFARE ACT OF In information, it must specifically state that the minor
2006”. The law became effective on May 21, accused ―acted with discernment‖.
2006.

Under R.A. 9344, minors aged fifteen (15) and below Paragraph 4. Accident Without Fault or
are now absolutely exempt from criminal liability. Intention of Causing it

The child shall be released to the custody of his of his Any person who, while performing a lawful act with
parents, or guardian, or in the absence thereof, the due care, causes an injury by mere accident without
child‘s nearest relative. If they cannot be located or if fault or intention of causing it.
they refused, the child shall be released to a duly
registered nongovernmental or religious organization, a Accident - any happening beyond the control of a
brgy official, or a member of the Brgy Council For The person the consequence of which are not
Protection Of Children (BCPC), or when appropriate, foreseeable.(in civil: fortuitous event)
the DSWD.
Elements:
If the child is abandoned, neglected or abused by his
parents, or if the parents will not comply with the 1. A person is performing a lawful act.
prevention program, DSWD will file the petition for 2. With due care (else, it is culpable felony)
involuntary commitment pursuant to ―The Child and 3. He causes an injury to another by mere
Youth Welfare Code.‖ accident.
4. Without fault or intention of causing it.(P/P vs
Note: Senility although said to be the second Vitug 8 CAR {2s} 905, 909)
childhood, is only mitigating.
Note: Under Article 12, paragraph 4, the offender is
Paragraph 3. Over 9 BUT Under 15 Acting exempt not only from criminal but also from civil
Without Discernment liability. This paragraph embodies the Latin maxim
―damnum absque injuria‖.
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Since the act must be lawful, accident cannot be 2. That the physical force must be irresistible.
claimed as defense in the ff. cases: possessing gun 3. That the physical force must come from a third
without license when accused killed his companion person.
accidentally, dynamite fishing causing death of scuba
diver Note: The irresistible force must produce such an
effect upon the individual that, in spite of all resistance,
Note that mechanical defect can be foreseen. it reduces him to a mere instrument, and as such,
incapable of committing a crime. He must act not only
Illustration: without a will but against his will.

A person who is driving his car within the speed limit,

while considering the condition of the traffic and the Paragraph 6. Uncontrollable Fear
pedestrians at that time, tripped on a stone with one of
his car tires. The stone flew hitting a pedestrian on the Any person who acts under the impulse of an
head. The pedestrian suffered profuse bleeding. What uncontrollable fear of an equal or greater injury.
is the liability of the driver?
UNCONTROLLABLE FEAR – offender employs
There is no civil liability under paragraph 4 of Article intimidation or threat (that might cause injury to the
12. Although, this is just an exempting circumstance, accused or to other person or injury against property)in
where generally there is civil liability, yet, in paragraph compelling another to commit a crime.
4 of Article 12, there is no civil liability as well as
criminal liability. The driver is not under obligation to DURESS – use of violence or physical force.
defray the medical expenses.
Elements:
However, correlate paragraph 4 of Article 12 with the
second paragraph of Article 275. Article 275 gives you 1. That the threat which caused the fear is of an
the crime of abandoning the victim of one‘s own evil greater than or at least equal to, that
accident. It is a crime. Here, the accident referred to which he is required to commit.
in paragraph 2 of Article 275 is in the concept of 2. That it promises an evil of such gravity and
paragraph 4 of Article 12. This means that the imminence that the ordinary man would have
offender must be performing a lawful act, that he was succumbed to it.(US vs Elicanal 35 Phil 209)
doing it with due care but somehow, injury resulted by
mere accident without fault or intention of causing it. Note: A grave fear is not uncontrollable if there was an
opportunity to verify one‘s fear.
If at the very beginning, the offender was negligent,
you do not apply Article 275, paragraph 2. Instead, it Duress to be a valid defense should be based on real,
will be Article 365 on criminal negligence. Notice that imminent, or reasonable fear for one‘s life or limb. It
in the last paragraph of Article 365, in the case of the should not be inspired by fanciful, speculative or
so-called hit and run drivers who have injured remote fear. A threat of future injury is not enough.
somebody and would abandon the victim of the
accident, the penalty is qualified to a higher degree. ACTUS ME INVITO FACTUS NON EST MEUS
Here, under paragraph 4 of Article 12, the infliction of ACTUS – any act done by me against my will is not my
the injury by mere accident does not give rise to a act.
criminal or civil liability, but the person who caused the
injury is duty bound to attend to the person who was Paragraph 7. Insuperable Cause
injured. If he would abandon him, it is in that
abandonment that the crime arises which is punished Any person who fails to perform an act required by
under the second paragraph of Article 275. law, when prevented by some lawful or insuperable
cause.
Paragraph 5. Irresistible Force
LAWFUL CAUSE – the law itself provides for an excuse.
Any person who acts under the compulsion of E.g. omission to give help to person in danger when it
an irresistible force. would also cause danger to himself; a priest cannot be
compelled to reveal what has been confessed to him
IRRESISTIBLE FORCE – offender uses violence or (privileged communication)
physical force to compel (to coerce) another person to
commit a crime. INSUPERABLE CAUSE – some motive, which has
morally, legally or physically prevented a person to do
Elements: what the law commands; circumstances of time place,
occasion that cannot be overcome. E.g. no available
1. That the compulsion is by means of physical transportation – officer not liable for arbitrary
force. detention; mother who was overcome by severe
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dizziness and extreme debility, leaving child to die – Legal grounds for trespass. Person entering
not liable for infanticide. (Pp. vs. Bandian, 63 P 530) another‘s dwelling for the purpose of
preventing some serious harm to himself , the
Elements: occupants of the dwelling or third person. (Art
1. An act is required by law to be done. 280 par 3)
2. Person fails to perform such act.
3. His failure to perform such act was due to some Under Article 219, discovering secrets through
lawful or insuperable cause. seizure of correspondence of the ward by their
guardian is not penalized.
Examples:
a. The municipal president detained the offended Under Article 332, in the case of theft,
party for three days because to take him to the swindling and malicious mischief, there is no
nearest justice of the peace required a journey for criminal liability but only civil liability, when the
three days by boat as there was no other means of offender and the offended party are related as
transportation. (US vs. Vicentillo, 19 Phil. 118) spouse, ascendant, descendant, brother,
The distance which required a journey for sister, brother-in-law and sister-in-law if living
three days was considered an insuperable cause. together or where in case the widowed spouse
Note: Under the law, the person arrested must be and the property involved is that of the
delivered to the nearest judicial authority at most deceased spouse, before such property had
within 18 hours (now 36 hours, Art. 125 RPC); passed on to the possession of third parties.
otherwise, the public officer will be liable for
arbitrary detention. Under Article 344, in cases of seduction,
abduction, acts of lasciviousness, and rape,
b. A mother who at the time of childbirth was the marriage of the offended party shall
overcome by severe dizziness and extreme debility, extinguish the criminal action.
and left the child in a thicket were said child died,
is not liable for infanticide because it was physically c. Examples which are recognized and developed
impossible for her to take home the child. (People by jurisprudence include:
vs. Bandian, 63 Phil. 530).
In case of SOMNAMBULISM or one who acts
The severe dizziness and extreme debility of while sleeping, the person involved is definitely
the woman constitute an insuperable cause. acting without freedom and without sufficient
intelligence, because he is asleep. He is
ABSOLUTORY CAUSES - that which has the effect of
moving like a robot, unaware of what he is
absolving the offender from criminal liability, although
doing. So the element of voluntariness which
not from civil liability. They are those where the act
is necessary in dolo and culpa is not present.
committed is a crime but for reasons of public policy
and sentiment there is no penalty imposed. It has the
Mistake Of Fact
same effect as exempting circumstances.
Set-Up – when an innocent person is
a. They are based on public policy.
intentionally placed by a law enforcer in a
b. Examples of those in the RPC include:
situation where it is made to appear that said
person committed the crime. The person never
Spontaneous Desistance During Attempted committed the imputed crime.
Stage (Art 6, RPC)
Frame-Up – there is a crime committed by a
Light Felony is only attempted or frustrated, 3rd person not by the innocent accused. The
and is not against persons or property. (Art 7) charge is false and the accused never
committed the crime. It usually happens when
Death/Physical Injuries Under Exceptional the police plant, alter, destroy or suppress
Circumstances (Art 247) evidence to implicate innocent person as the
author of the crime.
The accessory is a relative of the principal (Art
20) Instigation – is an instance where a law
enforcer induced a person to commit a crime
Legal grounds for arbitrary detention (Art 124) and later arrest him in flagranti. There is no
commission of the crime were it not for the
Marriage of the offender with the offended instigation.
party when the crime is rape, abduction,
seduction, or acts of lasciviousness. ( Article Instigation is associated with criminal intent.
344) Do not consider culpa in connection with
instigation. If the crime is culpable, do not talk
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of instigation. In instigation, the crime is absolutory cause. It is not even
committed with dolo. It is confused with mitigating.
entrapment.
Forms of Entrapment
If the one who instigated is a private person, Sting Operation or buy-bust operation where
not performing a public function, both he and for instance in drug cases, the law enforcer
the one induced are criminally liable. pretends to be the buyer and later apprehend
the seller of drugs.
Elements of Instigation Illustrations:
1. Act of persuasion, trickery or fraud carried
out by law enforcers to instigate the An agent of the narcotics command had been
accused to commit the crime. tipped off that a certain house is being used as
2. The origin of criminal design is in the mind an opium den by prominent members of the
of the law enforcer not the innocent society. The law enforcers cannot themselves
accused. Crime is a product of creative penetrate the house because they do not
activity of the law enforcer. belong to that circle so what they did was to
convince a prominent member of society to
Test to Determine Instigation visit such house to find out what is really
1. Subjective Test – the focus is on the happening inside and that so many cars were
accused whether there was predisposition congregating there. The law enforcers told the
to commit the crime. What is considered is undercover man that if he is offered a
his mental state at the time of cigarette, then he should try it to find out
inducement. whether it is loaded with dangerous drugs or
2. Objective Test – the focus is on the not. This fellow went to the place and mingled
conduct of the accused there. The time came when he was offered a
stick of cigarette and he tried it to see if the
Entrapment is not an absolutory cause. cigarette would affect him. Unfortunately, the
Entrapment does not exempt the offender or raid was conducted and he was among those
mitigate his criminal liability. But instigation prosecuted for violation of the Dangerous
absolves the offender from criminal liability Drugs Act. Is he criminally liable? No. He was
because in instigation, the offender simply acts only there upon instigation of the law
as a tool of the law enforcers and, therefore, enforcers. On his own, he would not be there.
he is acting without criminal intent because The reason he is there is because he
without the instigation, he would not have cooperated with the law enforcers. There is
done the criminal act which he did upon absence of criminal intent.
instigation of the law enforcers.
If the law enforcer were able to enter the
Difference between instigation and house and mingle there, nobody would offer
entrapment him a cigarette because he is unknown. When
he saw somebody, he pleaded to spare him a
1. In instigation, the criminal plan or design smoke so this fellow handed to him the
exists in the mind of the law enforcer with cigarette he was smoking and found out that it
whom the person instigated cooperated so was loaded with a dangerous drug. He
it is said that the person instigated is arrested the fellow. Defense was that he
acting only as a mere instrument or tool of would not give a cigarette if he was not asked.
the law enforcer in the performance of his Is he criminally liable? Yes. This is a case of
duties. On the other hand, in entrapment, entrapment and not instigation. Even if the
a criminal design is already in the mind of law enforcer did not ask for a cigarette, the
the person entrapped. It did not emanate offender was already committing a crime. The
from the mind of the law enforcer law enforcer ascertained if it is a violation of
entrapping him. Entrapment involves only the Dangerous Drugs Act. The means
ways and means which are laid down or employed by the law enforcer did not make
resorted to facilitate the apprehension of the accused commit a crime. Entrapment is
the culprit. not an absolutory cause because in
2. Instigation absolves the person instigated entrapment, the offender is already
from criminal liability. This is based on the committing a crime.
rule that a person cannot be a criminal if
his mind is not criminal. A sound public In another instance, a law enforcer pretended
policy requires that the courts shall to be a buyer of marijuana. He approached a
condemn the practice of instigation by person suspected to be a pusher and prevailed
directing the acquittal of the accused. On upon this person to sell him two kilos of dried
the other hand, entrapment is not an marijuana leaves and this fellow gave him and
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delivered them. He apprehended the fellow. criminally liable for the crime committed: the
Defense is instigation, because he would not former as principal by induction and the latter
have come out for the marijuana leaves if the as principal by direct participation.
law enforcer had not instigated him. It is a
case of entrapment because the fellow is
already committing the crime from the mere
fact that he is possessing marijuana. Even
without selling, there is a crime committed by
him: illegal possession of dangerous drugs.
How can one sell marijuana if he is not in II. Modifying Circumstances - those which will
possession thereof. The law enforcer is only either increase or decrease the penalty. They are
ascertaining if this fellow is selling marijuana called mitigating or aggravating circumstances.
leaves, so this is entrapment, not instigation.
Selling is not necessary to commit the crime, Chapter 3
mere possession is already a crime. CIRCUMSTANCES WHICH MITIGATE CRIMINAL
LIABILITY
A fellow wants to make money. He was
approached by a law enforcer and was asked if Article 13. Mitigating Circumstances
he wanted to deliver a package to a certain
person. When that fellow was delivering the Mitigating Circumstances – are those which, if
package, he was apprehended. Is he present in the commission of the crime, do not entirely
criminally liable? This is a case of instigation; free the actor from criminal liability, but serve only to
he is not committing a crime. reduce the penalty.

If the instigator is a law enforcer, the person Note: A mitigating circumstance arising from a single
instigated cannot be criminally liable, because fact absorbs all the other mitigating circumstances
it is the law enforcer who planted that criminal arising from the same fact.
mind in him to commit the crime, without
which he would not have been a criminal. If Basis: Mitigating circumstances are based on the
the instigator is not a law enforcer, both will diminution of either freedom of action, intelligence, or
be criminally liable, you cannot have a case of intent, or on the lesser perversity of the offender.
instigation. In instigation, the private citizen
only cooperates with the law enforcer to a Classes of Mitigating Circumstances:
point when the private citizen upon instigation
of the law enforcer incriminates himself. It 1. Ordinary/Generic mitigating - those
would be contrary to public policy to prosecute enumerated in subsections 1-10 of Article 13. It is
a citizen who only cooperated with the law generic because it applies to all. It is ordinary
enforcer. The private citizen believes that he because it can be offset by a generic aggravating
is a law enforcer and that is why when the law circumstance.
enforcer tells him, he believes that it is a civil
duty to cooperate. 2. Privileged mitigating - those mentioned in
articles 68, 69, 64. Also 1 and 2 of Art 13. It
If the person instigated does not know that cannot be offset by aggravating circumstance.
the person is instigating him is a law enforcer
or he knows him to be not a law enforcer, this If both privileged and ordinary mitigating are
is not a case of instigation. This is a case of present, appreciate the privileged (reduce by
inducement, both will be criminally liable. degree) before appreciate the ordinary mitigating
(reduce by period).
In entrapment, the person entrapped should
not know that the person trying to entrap him If 2 or more mitigating circumstances arise from a
was a law enforcer. The idea is incompatible single fact, only one will be appreciated. If they
with each other because in entrapment, the arise from several facts, all may be appreciated.
person entrapped is actually committing a
crime. The officer who entrapped him only Mitigating circumstances only reduce the penalty,
lays down ways and means to have evidence but do not change the nature of the crime.
of the commission of the crime, but even
without those ways and means, the person Ordinary Privileged
entrapped is actually engaged in a violation of As to Can be offset by Can never be
the law. nature generic offset by
aggravating aggravating
If the one who made the instigation is a circumstances circumstances.
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effect will operate to reduce the
reduce the penalty by 1 or 2
penalty to the degrees than Paragraph 1. Incomplete Justifying or
minimum that provided by Exempting Circumstances
period, provided law for the Those mentioned in the preceding chapter, when
the penalty is crime. all the requisites necessary to justify the act or to
divisible. exempt from criminal liability in the respective cases
As to Kinds those those mentioned are not attendant.
(sources) enumerated in in articles 68, 69,
subsections 1- 64. Note: This applies when some elements necessary to
10 of Article 13. justify the act or to exempt the actor are not attendant.
But in the case of ―incomplete self-defense, defense of
relatives, and defense of a stranger‖, unlawful
3. Special Extenuating – those which can be aggression must be present, it being an indispensable
found in some other provisions which also have the requisite.
same effect of reducing the penalty. It can be
ordinary mitigating. They are called Special Q: How, if at all, may incomplete self-defense affect
Mitigating Circumstances‖. the criminal liability of the offender?

Examples: Abandonment in case of adultery; A: If the question specifically refers to incomplete self-
Release of the victim within 3 days with the defense, defense of relative or defense of stranger, I
purpose not attained in the felony of Slight Illegal have to qualify my answer.
Detention.
First, to have incomplete self-defense, the offended
Illustrations: party must be guilty of unlawful aggression. Without
this, there can be no incomplete self-defense, defense
An unwed mother killed her child in order to of relative, or defense of stranger.
conceal a dishonor. The concealment of dishonor
is an extenuating circumstance insofar as the Second, if only the element of unlawful aggression is
unwed mother or the maternal grandparents is present, the other requisites being absent, the offender
concerned, but not insofar as the father of the shall be given only the benefit of an ordinary mitigating
child is concerned. Mother killing her new born circumstance.
child to conceal her dishonor, penalty is lowered by
two degrees. Since there is a material lowering of Third, if aside from the element of unlawful aggression
the penalty or mitigating the penalty, this is an another requisite, but not all, are present, the offender
extenuating circumstance. shall be given the benefit of a privileged mitigating
circumstance. In such a case, the imposable penalty
The concealment of honor by mother in the crime shall be reduced by one or two degrees depending
of infanticide is an extenuating circumstance but upon how the court regards the importance of the
not in the case of parricide when the age of the requisites present or absent.
victim is three days old and above.
Q: How may other incomplete justifying circumstance
In the crime of adultery on the part of a married affect criminal liability of the offender?
woman abandoned by her husband, at the time
she was abandoned by her husband, is it A: If less than a majority of the requisites necessary to
necessary for her to seek the company of another justify the act or exempt from criminal liability are
man. Abandonment by the husband does not present, the offender shall only be entitled to an
justify the act of the woman. It only extenuates or ordinary mitigating circumstance.
reduces criminal liability.
If a majority of the requisites needed to justify the act
A kleptomaniac is one who cannot resist the or exempt from criminal liability are present, the
temptation of stealing things which appeal to his offender shall be given the benefit of a privileged
desire. This is not exempting. One who is a mitigating circumstance. The penalty shall be lowered
kleptomaniac and who would steal objects of his by one or two degrees. When there are only two
desire is criminally liable. But he would be given conditions to justify the act or to exempt from criminal
the benefit of a mitigating circumstance analogous liability, the presence of one shall be regarded as the
to paragraph 9 of Article 13, that of suffering from majority.
an illness which diminishes the exercise of his will
power without, however, depriving him of the
consciousness of his act. So this is an extenuating Circumstances of justification which may give
circumstance. The effect is to mitigate the criminal place to mitigation
liability.
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1. Incomplete self-defense, defense of relatives, and 4. Incomplete exempting circumstance of
defense of stranger uncontrollable fear – if only one of the 2 requisites
is present, there is only a mitigating circumstance.
If two requisites are present, it is considered
privileged mitigating circumstance. If there is only Note: Paragraphs 1 and 2 of Art 12 cannot give
one present, it is only ordinary mitigating. place to mitigating because the mental condition of
Unlawful aggression must be present, it being an a person is indivisible. BUT if the offender is
indispensable requisite. What is absent is either suffering from some illness which would diminish
one or both of the last two requisites. the exercise of his will-power, without however
depriving him of consciousness of his acts, such
2. Incomplete justifying circumstance of avoidance of circumstance is considered mitigation under par 9
greater evil or injury – if any of the last 2 requisites of Art 13.
is absent.
Paragraph 2. Under 18 or Over 70 years
3. Incomplete justifying circumstance of performance
of a duty. That the offender is under 18 years of age or
over 70 years. In the case of the minor, he shall be
There are 2 requisites in this justifying proceeded against in accordance with article 192 of PD
circumstance. SC considered one of the 2 603.
requisites as constituting the majority, thus
privileged mitigating. It seems that there is no BASIS: diminution of intelligence
ordinary mitigating when the justifying or
exempting has 2 requisites only. (Pp vs Oanis) It contemplates the following:

4. Incomplete justifying circumstance of obedience to 1. An offender over 15 but under 18 years of

an order. age.
2. An offender over 70 years old.
Circumstances of exemption which may give
place to mitigation Note: For purposes of lowering the penalty by one or
1. Incomplete exempting of minority over 15 but two degrees, the age of the offender at the time of the
below 18 – if the minor acted with discernment, he commission of the crime shall be the basis, not the age
is only entitled to a mitigating circumstance. of the offender at the time of the trial or the time the
sentence is to be imposed. But for purposes of
2. Incomplete exempting circumstance of accident. suspension of the sentence, the age of the offender at
the time the crime was committed is not considered, it
Under par. 4 of Article 12, four requisites must be is the age of the offender at the time the sentence is to
present, namely: be promulgated.
a. A person is performing a lawful act.
b. With due care (else, it is culpable felony) Offender Over 15 BUT Below 18 is a privilege
c. He causes an injury to another by mere mitigating circumstance, Effects
accident. 1. The penalty will be reduced 1 degree lower
d. Without fault or intention of causing it.(P/P vs 2. The imposition of penalty imprisonment is
Vitug 8 CAR {2s} 905, 909) suspended
3. Subject the offender to diversion program of the
If the 2nd requisite and the first part of the 4th government
requisite are absent, the case will fall under article
365 which punishes a felony by negligence or Q: A 17 year old boy committed parricide. Will he be
imprudence. In effect, there is mitigating given the benefit of Indeterminate Sentence Law?
circumstance because the penalty is lower than Then, the facts state, penalty for parricide is reclusion
that provided for intentional felony. perpetua to death.

If the first requisite and the 2nd part of the 4th A: Yes. He shall be given the benefit of the
requisite are absent, because the person Indeterminate Sentence Law. Although the penalty
committed an unlawful act and had the intention of prescribed for the crime committed is reclusion
causing the injury, it will be an intentional felony. perpetua, that is not the imposable penalty, since being
In this case, there is no mitigating. 17 years old is a privilege mitigating circumstance.
That privilege lowers the penalty by one degree. The
3. Incomplete exempting circumstance of irresistible imposable penalty, therefore, is reclusion temporal.
force The Indeterminate Sentence Law applies to this and so
the offender will be given its benefit.

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Offender Over 70, Only Ordinary Mitigating, In crimes against persons, if the victim does not die,
Exceptions the absence of the intent to kill reduces the felony to
GENERAL RULE: If the offender is over 70, he is mere physical injuries. It is not considered as
entitled only to mitigating circumstance. mitigating. It is mitigating only when the victim dies.

EXCEPTIONS: Factors that may be considered are:

1. When he committed an offense punishable by 1. Weapon/Means used
death, that penalty shall not be imposed; AND 2. Location, nature and number of wounds inflicted
2. When death penalty is already imposed, it shall be 3. Distance between the accused and the victim
suspended and commuted. 4. Utterances of the accused
5. Persistence of the attack
Criminal Responsibility as to Age/Periods of 6. Mindset of the offender at the time of the
Human Life under RPC commission of crime not his intention at the
planning stage.
Age Criminal Responsibility/Effect
15 years and Absolute irresponsibility, exempting Paragraph 4. Provocation or Threat
below circumstance
*as amended by RA 9344 That sufficient provocation or threat on the
Above 15 but Conditional Responsibility part of the offended party immediately preceded the
Below 18 Without Discernment – not act.
criminally liable
With Discernment – criminally liable Basis: Diminution of will power.
* as amended by RA 9344
Minor Sentence is suspended Elements:
Deliquent 1. That the provocation must be sufficient.
18 to 70 years Full Responsibility 2. That it must originate from the offended party.
Above 70 Mitigated Responsibility, no 3. That the provocation must be immediate to
imposition of death penalty, the act, i.e., to the commission of the crime by the
execution of death penalty may be person who is provoked.
suspended or commuted.
PROVOCATION – any unjust or improper conduct or
act of the offended party, capable of exciting, inciting
Paragraph 3. No Intention to Commit so Grave a or irritating anyone.
Wrong
Provocation Vindication
That the offender had no intention to commit Made directly only to the Grave offense (maybe a
so grave a wrong as that committed. person committing the crime or not but the act is
felony. unjustifiable) may be also
BASIS : intent is diminished be against the offender‘s
relatives mentioned by
Note: It can be taken into account only when the facts law. (Broader) There must
proven show that there is a notable and evident be immediate vindication
disproportion between the means employed to execute of grave offense.
the criminal act and its consequences. (US vs Reyes 36 Cause that brought about Offended party must have
Phil 904) If the resulting felony could be expected from the provocation need not done a grave offense to
the means employed, this circumstance does not avail. be a grave offense. the offender or his
relatives or property.
This circumstance does not apply when the crime Necessary that May be proximate. Time
results from criminal negligence or culpa. When the provocation or threat interval allowed.
crime is the product of reckless imprudence or simple immediately preceded the
negligence, mitigating circumstances does not apply. act. No time interval.
This is one of the three instances where the offender
has performed a felony different from that which he Note: Threat should not be offensive and positively
intended. Therefore, this is the product of intentional strong. Otherwise, it would be an unlawful aggression,
felony, not a culpable one. which may give rise to self-defense and no longer a
mitigating circumstance.
This usually applies to crimes against persons. It is not
applicable to crimes against property, chastity, and Provocation Immediate to the Act
culpable felonies which does not produced material
harm or injury upon person. If there is a break of time before the provocation or
threat and the consequent commission of the crime,
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anger or diminished self-control may have emerged provocation, it is not mitigating because the one who
from the offended party had already vanished or gives the provocation is not the one against whom the
disappeared. The CRITERIA are: crime was committed.
1. TIME. If from the element of time, there is a
material lapse of time stated in the problem that Q: A was walking in front of the house of B. B at that
the effect of the threat or provocation had time was with his brother C. C told B that sometime in
prolonged and affected the offender at the time he the past, A boxed him, and because he was small, he
committed the crime, then use the criterion based did not fight back. B approached A and boxed him, but
on the time element. A cannot hit back at B because B is bigger, so A boxed
C. Can A invoke sufficient provocation to mitigate
2. However, if there is that time element and at criminal liability?
the same time, facts are given indicating that at
the time the offender committed the crime, he is A: No. Sufficient provocation must come from the
still suffering from outrage of the threat or offended party. There may actually be sufficient
provocation done to him, then he will still get the provocation which immediately preceded the act, but if
benefit of a mitigating circumstance. provocation did not come from the person offended,
paragraph 4, Article 13 will not apply.
Illustration:

The accused went to a barrio dance. In that Paragraph 5. Vindication of Grave Offense
gathering, there was a bully and he told the
accused that he is not allowed to go inside. The That the act was committed in the immediate
accused tried to reason out but the bully slapped vindication of a grave offense to the one committing
him several times in front of so many people, some the felony(delito), his spouse, ascendants,
of whom were ladies who were being courted by descendants, legitimate, natural or adopted brothers or
the accused, so he was humiliated and sisters, or relatives by affinity within the same degrees.
embarrassed. However, he cannot fight the bully at
that time because the latter was much bigger and Elements:
heavier. Accused had no choice but to go home. 1. That there be a grave offense done to the one
When he saw the bully again, this time, he was committing the felony, his spouse, ascendants,
armed with a knife and he stabbed the bully to descendants, legitimate, natural or adopted
death. The evidence for the accused showed that brothers or sisters, or relatives by affinity within
when he went home, he was not able to sleep the same degrees;
throughout the night, thinking of the humiliation 2. That the felony is committed in immediate
and outrage done to him, despite the lapse of vindication of such grave offense.
about 22 hours. The Supreme Court gave him the
benefit of this mitigating circumstance. The reason Note: A lapse of time is allowed between the
stated by the Supreme Court for allowing the vindication and the doing of the grave offense as
accused to be benefited by this mitigating long as the offender is still suffering from mental
circumstance is that the effect of the humiliation agony brought about by the offense to him.
and outrage emitted by the offended party as a
provocation upon the accused was still present The word ―immediate‖ here is an erroneous
when he committed the crime and, therefore, the Spanish translation because the Spanish word is
reason for paragraph 4 still applies. The accused ―proxima‖ and not ―immediatementa.‖ Therefore, it
was still acting under a diminished self control is enough that the offender committed the crime
because he was thinking of the humiliation he with the grave offense done to him, his spouse, his
suffered in the hands of the offended party. The ascendant or descendant or to his brother or sister,
outrage was so serious unless vindicated. whether natural, adopted or legitimate and that is
the proximate cause of the commission of the
In People v. Diokno, a Chinaman eloped with a crime.
woman. Actually, it was almost three days before
accused was able to locate the house where the Paragraph 6. Passion or Obfuscation
Chinaman brought the woman. Here, sufficient
provocation was one of the mitigating That of having acted upon an impulse so
circumstances considered by the Supreme Court in powerful as naturally to have produced passion or
favor of the accused. obfuscation.

NOTE: The common set-up given in a bar problem is BASIS: Loss of reasoning and self-control, thereby
that of provocation was given by somebody. The diminishing the exercise of his will power.
person provoked cannot retaliate against him; thus, the
person provoked retaliated on a younger brother or on Elements;
an elder father. Although in fact, there is sufficient 1. The accused acted upon an impulse;
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2. The impulse must be so powerful that it naturally should be present. If the surprising was done not in the
produced passion or obfuscation. actual act of sexual intercourse but before or after it,
then Article 247 does not apply.
This stands on the premise or proposition that the
offender is suffering from a diminished self control Although this is the ruling, still, the accused will be
because of the passion or obfuscation. The same is given the benefit of sufficient provocation if the
true with the circumstances under paragraphs 4 and 5. intercourse was done in his dwelling. If this act was
So, there is a ruling to the effect that if the offender is done somewhere else and the accused kills the
given the benefit of paragraph 4, he cannot be given paramour or the spouse, this may be considered as
the benefit of paragraph 5 or 6, or vice-versa. Only one mitigation of a grave offense to him or otherwise as a
of the three mitigating circumstances should be given situation sufficient to create passion or obfuscation.
in favor of the offender. Therefore, when a married man upon coming home,
surprises his wife who was nude and lying with another
However, in one case, one of the mitigating man who was also nude, Article 247 does not apply. If
circumstances under paragraphs 4, 5 and 6 stands or he kills them, vindication of a grave offense will be
arises from a set of facts, and another mitigating mitigating in favor of the offender.
circumstance arises from another set of facts. Since
they are predicated on different set of facts, they may Illustrations:
be appreciated together, although they arose from one
and the same case. Hence, the prohibition against A is courting B, a receptionist in a beerhouse. C
considering all these mitigating circumstances together danced with B. A saw this and stabbed C. It was held
and not as one applies only if they would be taken on that jealousy is an acknowledged basis of passion.
the basis of the same set of facts.
A, a male classmate is escorting B, a female classmate.
If the case involves a series of facts, then you can On the way out, some men whistled lustfully. The
predicate any one of these circumstances on one fact male classmate stabbed said men. This was held to be
and the other on another fact and so on. obfuscation.

Passion Must Be Legitimate When a man saw a woman bathing, almost naked, for
which reason he raped her, such man cannot claim
Passion or obfuscation may constitute a mitigating passion as a mitigating circumstance.
circumstance only when the same arose from lawful
sentiments. A man and a woman were living together for 15 years.
The man left the village where they were living and
As a rule, it cannot be based on common law never returned home. The common law wife learned
relationship because common law relationships are that he was getting married to a classmate. On the
illicit. However, consider whether passion or scheduled wedding day, she stabbed the groom in the
obfuscation is generated by common law relationship chest, instantly killing him. She confessed and
or by some other human consideration. explained that any woman cannot tolerate what he did
to her. She gave him the best years of her life. She
In a case where the relationship between the accused practically waited for him day and night. It was held
and the woman he was living with was one of common that passion and obfuscation were considered
law, he came home and surprised his common law wife mitigating. Ingratitude was shown here.
having sexual intercourse with a friend. This infuriated
him. He killed the friend and he claimed passion or The passion or obfuscation must arise from an
obfuscation. The trial court denied his claim because act which must:
the relationship was a common law one. 1. come from the offended party;
2. unlawful;
On review, the accused was given the benefit of the 3. naturally strong as to condition the mind of the
circumstances and the basis of considering passion or offender to commit the crime; and
obfuscation in favor of the accused was the act of the 4. not far removed from the commission of the crime.
common law wife in committing adultery right from the
conjugal bed. Whether or not they are married, any Feelings that may be mitigating
man who discovers that infidelity was committed on 1. anger
the very bed provided by him to the woman would 2. despair
naturally be subjected to obfuscation. 3. love
4. jealousy
When a married person surprised his better half in the 5. embarrassment
act of sexual intercourse with another, he gets the
benefit of Article 247. However, that requisite which in Feelings which are not mitigating
the first place, the offender must have surprised 1. despair based on immoral relationship ( a live-in
his/her spouse actually committing sexual intercourse partner wanting to leave)
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2. crime deliberately planned would come out in the open and he gives himself up,
3. caused by lawful duty/right (arrested during his act of doing so will be considered as indicative of
marriage ceremony) repentance and he also saves the government the time
4. caused by lawlessness and the expense of looking for him.
5. deep feelings out of religious bigot
6. feelings that has been formented As a general rule, if after committing the crime, the
7. motivated by fight. offender did not flee and he went with the responding
law enforcers meekly, voluntary surrender is not
NOTE: Exercise of a right or fulfillment of duty is not applicable.
proper source of passion of obfuscation. (P/P vs
Noynay 58 Phil 393) However, there is a ruling that if after committing the
crime, the offender did not flee and instead waited for
Passion and obfuscation cannot co-exist with treachery the law enforcers to arrive and he surrendered the
since this means that the offender had time to ponder weapon he used in killing the victim, the ruling was
his course of action. that voluntary surrender is mitigating. In this case, the
offender had the opportunity to go into hiding.
Passion and Irresistible Force
Obfuscation However, if he comes out from hiding because he is
Mitigating Exempting seriously ill and he went to get medical treatment, the
No physical force needed Requires physical force surrender is not considered as indicative of remorse or
From the offender himself Must come from a 3rd repentance. The surrender here is only done out of
person convenience to save his own self. Hence, it is not
Must come from lawful Unlawful mitigating.
sentiments
Even if the offender may have gone into hiding, if the
Passion and Provocation law enforcers had already known where he is hiding
Obfuscation and it is just a matter of time before he is flushed out
Produced by an impulse Comes from injured party of that place, then even if the law enforcers do not
which may be caused by know exactly where he was hiding and he would come
provocation out, this is not voluntary surrender.
Offense which engenders Immediately precede the
perturbation of mind need commission of the crime Whether or not a warrant of arrest had been
not be immediate issued against the offender is immaterial and
Effect is loss of reason Same
irrelevant. The criterion is whether or not the
and self-control on the
offender had gone into hiding or had the
part of the offender
opportunity to go into hiding and the law enforcers
do not know of his whereabouts. If he would give up,
his act of surrendering under such circumstance
indicates that he is willing to accept the consequences
Paragraph 7. Surrender and Confession of Guilt
of the wrong he has done and also thereby saves the
government the effort, the time and the expenses to
That the offender had voluntarily surrendered
be incurred in looking for him.
himself to a person in authority or his agents, or that
he had voluntarily confessed his guilt before the court
Where the offender went to the municipal building not
prior to the presentation of evidence for the
to own responsibility for the killing, such fact is not
prosecution.
tantamount to voluntary surrender as a mitigating
circumstance. Although he admitted his participation in
NOTE: If both are present, considered as 2
the killing, he tried to avoid responsibility by claiming
independent mitigating circumstances.
self-defense which however he was not able to prove.
People v. Mindac, decided December 14, 1992.
BASIS: lesser perversity of the offender.
When the accused said ― please accompany me to post
Voluntary Surrender, Elements:
bail‖, it is held that there is no voluntary surrender in
1. Offender had not been actually arrested;
this case.
2. Offender surrendered himself to a person in
authority or to the latter‘s agent;
Surrender, When Considered Voluntary
3. Surrender was voluntary and spontaneous.
The accused must surrender his person with knowledge
that he can be imprisoned.
NOTE: The essence of voluntary surrender requires
that the offender, after having committed the crime,
Must be spontaneous, demonstrating an intent to
had evaded the law enforcers and the law enforcers do
submit himself unconditionally to the person in
not know of his whereabouts. In short, he continues to
authority or his agent in authority, either because
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(1) he acknowledges his guilt  Plea to a lesser charge is not a mitigating
(2) he wishes to save the government the trouble and circumstance because to be such, the plea of guilt
expenses of searching and capturing him. must be to the offense charge.
 Plea to the offense charged in the amended info,
Where the reason for the surrender of the accused was lesser than that charged in the original info, is
to insure his safety, his arrest by policemen pursuing mitigating circumstance.
him being inevitable, the surrender is not spontaneous.  In a case where the accused pleaded guilty to
lesser offense but was rejected by the prosecution,
Voluntary surrender can be appreciated whether the but the prosecution was not able to prove the
surrender was done discreetly or by media. more serious offense, the accused can only be
convicted for the lesser offense. His rejected offer
Place of surrender: anywhere to plead guilty for lesser offense is mitigating
circumstance.
Instances where there is voluntary surrender (Sir
Sagsago) Paragraph 8. Physical Defect of Offender
1. The accused hid then he gave himself up before
authorities knew where he was. That the offender is deaf and dumb, blind, or
2. Accused did not leave and waited for officers to otherwise suffering some physical defect which thus
come restricts his means of action, defense or
3. The accused gave himself up to authorities and communication with his fellow beings.
discloses that he has committed a crime.
BASIS: diminution of element of voluntariness.
Voluntary Plea of Guilt
NOTES: Physical defect must restrict means of action,
It contemplates of an arraignment at which the defense or communication with fellow beings.
accused voluntarily enters a plea of guilt and admission
of guilt during arraignment. This provision does not distinguish between educated
and uneducated deaf-mute or blind persons. It
Voluntary Plea of Guilt, Elements: considers them on equal footing.

1. it must be unconditional The physical defect must relate to the offense

2. spontaneous committed. Thus, blindness does not mitigate estafa.
3. prior to the presentation of evidence by the
prosecution Illustrations:
4. at the earliest possible time
5. before a court competent to try the same. In a case where the offender is deaf and dumb,
personal property was entrusted to him and he
NOTES: Plea after arraignment and after trial has misappropriated the same. The crime committed was
begun does not entitle accused to the mitigating estafa. The fact that he was deaf and dumb is not
circumstance. The plea should be made at the earliest mitigating because that does not bear any relation to
possible opportunity. the crime committed.

If accused pleaded not guilty during arraignment, he is If a person is deaf and dumb and he has been
still entitled to the mitigating circumstance if he slandered, he cannot talk so what he did was, he got a
withdraws his plea of not guilty before the prosecutor piece of wood and struck the fellow on the head. The
could present evidence. (if the prior plea wants to be crime committed was physical injuries. The Supreme
withdrawn as when the accused wanted to change his Court held that being a deaf and dumb is mitigating
plea from guilty to not guilty, file ―motion to withdraw because the only way is to use his force because he
the previous plea.) cannot strike back.

Even if accused pleaded guilty, he may be allowed to If the offender is blind in one eye, as long as his means
prove other mitigating circumstances. of action, defense or communication with others are
not restricted, such circumstance is not mitigating.
The accused may ask that the aggravating This circumstance must also have a bearing on the
circumstance be removed before he shall plead guilty. crime committed and must depend on how the crime
Once the info is changed wherein the aggravating circ. was committed.
is removed, he can now plea to the charge in the new
info Paragraph 9. Illness of the Offender

Plea to lesser charge, when considered Such illness of the offender as would diminish the
mitigating. (plea bargaining) exercise of the will power of the offender without
however depriving him of the consciousness of his acts.
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Aggravating Circumstances – those which, if
BASIS: diminution of intelligence and intent. attendant to the commission of the crime, serve to
have the penalty imposed in its maximum period
Requisites: provided by law for the offense or those that change
the nature of the crime.
1. That the illness of the offender must diminish
the exercise of his will power. BASIS: They are based on the greater perversity of
2. That such illness should not deprive the the offender manifested in the commission of the crime
offender of the consciousness of his acts. as shown by:
1) the motivating power itself
NOTES: When the offender completely lost the 2) the place of commission
exercise of will-power, it may be an exempting 3) the means and ways employed
circumstance. 4) the time
5) the personal circumstances of the offender, or
It is said that this paragraph refers only to diseases of the offended party.
pathological state that trouble the conscience or will.
Note: They arise either prior to or simultaneous with
Example: kleptomaniac, pyromaniac, nymphomaniac, the commission of the crime.
obsession for money, witchcraft
Classification:
Not mitigating: psychological paralysis, psychopath- 1) Generic - those that generally apply to all
serial killers, abnormal sexual urges crimes.
a) Advantage taken of public position;
b) Contempt or insult of public authorities;
Paragraph 10. Similar and Analogous c) Crime committed in the dwelling of the
Circumstances offended party;
And, finally, any other circumstances of a d) Abuse of confidence or obvious
similar nature and analogous to those above ungratefulness;
mentioned. e) Place where crime is committed;
f) Nighttime, uninhabited place, or band;
NOTE: This authorizes the court to consider in favor of
g) Recidivism (reincidencia);
the accused ―any other circumstance of a similar nature
h) Habituality (reiteracion);
and analogous to those mentioned‖ in pars.1-9 of
i) Craft, fraud or disguise;
Article 13.
j) Unlawful entry;
Examples: k) Breaking of parts of the house;
1. Defendant who is 60 years old with failing eyesight l) Use of persons under 15 years of age.
is similar to a case of one over 70 years old.
2. Impulse of jealousy, similar to passion and 2) Specific - those which apply only to specific
obfuscation. crimes, such as ignominy in crimes against chastity
3. Testifying for the prosecution, analogous to plea and cruelty and treachery which are applicable
of guilty only to crimes against persons.
4. Outraged feeling of owner of animal taken for a) Disregard of rank, age or sex due the offended
ransom is analogous to vindication of grave party;
offense. b) Abuse of superior strength or means be
5. Voluntary restitution of property is similar to employed to weaken the defense;
voluntary surrender. (the suspect voluntarily leads c) Treachery (alevosia);
the police to where he hid the things he used in d) Ignominy;
the crime: analogous to voluntary surrender) e) Cruelty;
6. Extreme poverty. f) Use of unlicensed firearm in the murder or
homicide committed therewith (RA 8294).
Not Examples:
1. Killing the wrong person. 3) Ordinary - those which may be offset by a
2. Not resisting arrest is not the same as voluntary mitigating circumstance and which if not offset, will
surrender. result to the divisible penalty being imposed in its
3. Running amuck is not mitigating. maximum period.
4) Qualifying - those that change the nature of
the crime.
Chapter 4 a. Alevosia (treachery) or evident premeditation
CIRCUMSTANCES WHICH AGGRAVATE qualifies the killing of a person to murder.
CRIMINAL LIABILITY
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b. Art. 248 enumerates the qualifying
aggravating circumstances which quality the The Revised Penal Code
killing of person to murder. 1. The basic source is Article 14 which enumerates the
ordinary and generic aggravating circumstances
2. As to the qualifying, special or specific aggravating,
5) Inherent - those that must of necessity they are found in certain specific articles in Book II
accompany the commission of the crime, thus not under the respective titles covering the crimes to
considered in increasing the penalty to be which they apply
imposed.
a. Evident premeditation in robbery, theft, estafa, Examples:
adultery and concubinage; (i) Art. 125 as to those which qualify piracy
b. Abuse of public office in bribery; (ii) Art. 248 as to those which qualify homicide to
c. Breaking of a wall or unlawful entry into a murder
house in robbery with the use of force upon (iii) Art. 310 as to those which qualify theft
things; (iv) Art. 338 as to those which qualify seduction
d. Fraud in estafa;
Special Laws
e. Deceit in simple seduction;
1. The Dangerous Drugs Law of 2002 provides the
f. Ignominy in rape.
circumstance of having been found positive for
the use of dangerous drugs
c. Special – those which arise under special
2. The Heinous Crime Law such that Reclusion
conditions to increase the penalty of the offense
Perpetua (death) shall be imposed in the crime of
and cannot be offset by mitigating circumstances
carnapping if murder, homicide or physical injuries
a. If there be a Mitigating circumstance it will
were committed; or in the crime of Kidnapping
affect the range of the maximum period
3. RA 8294 which provides the circumstance of ―use
b. They are as follows:
of unlicensed firearm in the commission of
a) That the act resulted to a complex crime
murder or homicide”
(Art. 48)
4. The Anti Rape Law enumerates several qualifying
b) That there was error in personae or mistake
circumstances of rape
in the identity of the victim (Article 49)
5. R.A. 7610 ― The Special Protection of children
c) That the accused took advantage of his
Against Abuse, Exploitation and Discrimination Act‖
official position( Article 62)
( 1992) which provides that if the victim is below
d) That the crime was committed by an
12 years of age, the penalty for the crimes of
organized syndicated crime group i.e by at
murder, homicide, intentional mutilation, and
least 2 persons organized to commit a
serious physical injuries shall be reclusion perpetua
crime for profit (Article 62)
; and incase of qualified seduction, acts of
e) That the accused is a quasi-recidivist under
lasciviousness, corruption of minors and white
Art. 160.
slave trade, the penalty shall be one degree higher
f) That an unlicensed firearm was used in a
than that imposed by the Revised Penal Code.
killing pursuant to P.D. 1866 as amended
by R.A. 8294. (Palaganas vs. PP., Sept.
PRINCIPLES IN THE APPRECIATION
12, 2006)
1. Aggravating circumstances shall NOT be
GENERIC QUALIFYING
appreciated if:
Circumstance can be It cannot be offset by any
a. They constitute a crime specially
offset by an ordinary mitigating circumstance
punishable by law; or
mitigating circumstance.
b. It is included by the law in defining a
If not offset by any Gives the crime its proper crime with a penalty prescribed.
mitigating circumstance, and exclusive name and
increases the penalty to places the author of the Example: ―That the crime be committed
the maximum period crime in such a situation by means of fire, ….explosion‖ (Art 14, par
without exceeding the as to deserve no other 12) is in itself a crime of arson (Art 321)
limit prescribed by law. penalty than that specially or a crime involving destruction (Art 324).
prescribed by law for said It is not considered to increase the penalty
crimes. of arson or for the crime involving
Must also be alleged in Must be specifically destruction.
the information. alleged in the information.
If not, but proven during 2. Those which are inherent in the crime i.e
the trial, it will be those which must of necessity accompany the
considered only as crime have no effect. (Art 62, par 2)
generic.

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Example: Dwelling in trespass; Disregard of treachery is preferred and it will absorb
respect due to the sex in crimes against the other circumstances relating to the
chastity. mode of the commission, but it will not
absorb the circumstance that the crime
3. Aggravating circumstance which arise from: was committed in consideration of a price,
a. Moral attributes of the offender; promise or reward.
b. His private relations with the offended c. In case of qualifying circumstances, those
party; or which are not absorbed will be considered
c. Any personal cause as ordinary aggravating. Besides, one will
be considered as qualifying circumstance
Shall only serve to aggravate the criminal and the other will be considered as
liability of the principals, accomplices and generic aggravating circumstance.
accessories as to whom such circumstances
are attendant. (Art 62, par 3)
Article 14. AGGRAVATING CIRCUMSTANCES
4. The circumstances which consists:
a. In the material execution of the act; or Paragraph 1. Taking Advantage of Public
b. In the means employed to accomplish it, Position

Shall serve to aggravate the liability of only That advantage be taken by the offender of
those persons who had knowledge of them at his public position.
the time of the execution of the act or their
cooperation therein. Except when there is
proof of conspiracy in which case the act of Elements:
one is deemed to be the act of all, regardless 1. Offender is a public officer;
of lack of knowledge of the facts constituting 2. Public officer must use the influence, prestige, or
the circumstance. (Art 62, par 4) ascendancy of his office as a means to realize his
purposes or to commit the crime.
Illustration:

A person induced another to kill somebody. NOTES:

That fellow killed the other guy and employed 1. This is now a special aggravating under R.A. 7659
treachery. As far as the killing is concerned, (Heinous Crime Law) amending Article 62. If the
the treachery will qualify only the criminal crime is Violation of the Child Abuse Law, the
liability of the actual executioner. The fellow penalty shall be in the maximum.
who induced him becomes a co-principal and 2. Applies only to an offender who is a public officer
therefore, he is liable for the same crime who used the influence, prestige, or ascendancy of
committed. However, let us say, the fellow his office as a means to realize his purposes or to
was hired to kill the parent of the one who commit eh crime. Did he abuse his office to
hired him. He killed a stranger and not the commit the crime?
parent. What was committed is different from 3. Does not apply where being a public officer is
what was agreed upon. The fellow who hired inherent in the crime like those under the Title
him will not be liable for the crime he had ―Crimes By Public Officers‖ like malversation or
done because that was not the crime he was falsification committed by public officers.
hired to commit. 4. Examples: (a) A Jail Warden who orders the guard
to beat up an inmate (b) A Police officer who
5. All aggravating must be alleged in the orders his subordinates to steal or rob or maul (c)
Information in such a manner as to including a a Judge who detained his debtor for contempt of
statement of the facts which support their Court for refusing to obey the Judge Order for the
existence. A general allegation is not sufficient. debtor to appear in the sala of the Judge
(S9, R110, 2000 Rules of Criminal Procedure)
Paragraph 2. In Contempt of, or with Insult to
6. If there are several aggravating circumstances Public Authorities
present:
That the crime be committed in contempt of or
a. If they are based on separate and distinct with insult to the public authorities.
facts, all will be appreciated.
b. If they are based on the same Elements:
circumstance or set of facts, then the
Principle of Absorption applies such 1. the public authority is engaged in the
that only one will be appreciated. In discharge of his duties;
crimes against persons for example,
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2. he is not the person against whom the crime is
committed; Victim is either advanced in age or is relatively
3. the offender knows of the identity of the public young, in relation to the accused.
authority; and i). There must be a disparity in their age, not
4. his presence has not prevented the offender when both are in the same age level
from committing the criminal act. ii). This is inherent if the accused is charged
with Child Abuse under R.A. 7610 but in
PUBLIC AUTHORITIES - refer to persons in authorities cases where the victim of death is a child
and not to their agents. below 12 years, the penalty shall be in the
maximum, or one degree higher in cases
PERSON IN AUTHORITY – person who is directly of qualified seduction, acts of
vested with jurisdiction and has the power to govern lasciviousness with the consent of the
and execute the laws. minor, corruption of minors and white
slave trade.
Examples: Governor, Mayor, Punong Brgy., Councilors,
Government Agents, Chief of Police (in places where b). Sex – refers to the female sex, not to the male
they are allowed to prosecute in the absence of a sex. The victim is a female and the accused is a
public prosecutor) male but this does not apply to crimes where sex
is inherent as in abuses against women under
NOTES: R.A. 9262.
1. Teachers and lawyers are persons in authority for
purposes of direct assault (Art. 148) and resistance Under R.A. 7610 and RA 9262, there is an
and disobedience (Art. 152) but not under this aggravating circumstance consisting of the fact
article. that the victim is a “Child‖ who is either (i).
2. The public authorities are not the victims of the below 18 years of age, or (ii). is over 18 but is
crime but that the crime was committed in the unable to fully take care of himself or protect
presence, view or hearing of the public authorities, himself from abuse, neglect, cruelty, exploitation
and the accused knows them to be such. or discrimination because of a physical or mental
Otherwise, it will constitute direct assault. disability or condition.‖
3. Aggravating only in crimes against persons and
honor, not against property. c). Rank – the designation or title of distinction
4. This is NOT applicable when committed in the used to fixed the relative position of the
presence of a mere agent. offended party reference to others. There must
be difference in the social condition of the
AGENT – subordinate public officer charged with the offender and the offended party.
maintenance of public order and protection and
security of life and property. The victim is entitled to respect due to his social
standing, high position or station in life, or
Example: barrio vice lieutenant, barrio councilman employment, from one who is aware thereof and
is lower in rank or position. Examples:
i). Assault on the Company President by an
Paragraph 3 Disrespect Due To Rank, Age, Sex employee thereof
ii). Attacking the head of a church by a member
That the act be committed (1) with insult or in
disregard of the respect due to the offended party on N.B.: Should there be not be abuse of rank on
account of his rank, age, or sex, or (2) it be committed the part of the accused if he is higher in station
in the dwelling of the offended party, if the latter has and he uses this to commit a crime against one
not given provocation. lower in rank?

Rules regarding par 1 3. These circumstances, if all are present, shall only be
1. There must be a conscious or deliberate disregard considered as one aggravating circumstance.
of the respect due to the offended party so that
these are incompatible when offender acted under 4. When NOT applicable
passion, vindication or diminished will power, or a. When offender acted with passion and
was intoxicated. obfuscation.
b. When there exists a relationship between the
2. Age, sex and rank apply only to crimes against offended party and the offender.
persons or honor, they cannot be invoked in crimes c. When the condition of being a woman is
against property. indispensable in the commission of the crime.
(e.g. parricide, seduction, abduction, and rape)
a). Age – refer to old age or tender age of the
victim.
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5. Disregard of sex and age are not absorbed in i). The victim gave sufficient provocation (there
treachery because in treachery refers to the must exist a close relation between the
manner of commission of the crime, while the provocation made by the victim and the
former pertains to the relationship of the victim. commission of the crime by the accused.
ii). The accused is also an occupant of the same
Rules regarding par 2 dwelling
1. Dwelling - refers to any structure habitually used Except: In case of adultery in the conjugal
by a person as his place of rest, comfort, privacy dwelling. HOWEVER, if the paramour also
and peace of mind. It may be man-made or a dwells in the conjugal dwelling, the applicable
natural habitat, as a cave used as residence. What aggravating circumstance is abuse of
is emphasized is not the appearance but the confidence.
purpose or use thereof.
iii). Victim is not a dweller of the house.
a) This includes the basic structure and the
dependencies which are either (i) those so iv). Dwelling is inherent in the crime as in
continued with it as to be considered integral a. robbery with force upon things
parts thereof such as the roof, stairways,
balcony or (ii) any structure attached to the However, it is aggravating in robbery with
main structure with a connecting door. violence against or intimidation of persons
Example: store, garage, restaurant, internet – because this class of robbery can be
café committed without the necessity of
2. Dwelling does not mean the permanent residence trespassing the sanctity of the offended
or domicile of the offended party or that he must party‘s house.
be the owner thereof. He must, however, be
actually living or dwelling therein even for a b. trespass to dwelling
temporary duration or purpose. c. violation of domicile.

3. The victim may be the owner, the lessee, a boarder, 6. What aggravates in the Commission of the Crime in
a stay-in employee, or a temporary visitor. One‘s Dwelling
a. The abuse of confidence which the offended
Dwelling can be aggravating even if it is not owned party reposed in the offender by opening the
by the offended party, provided that the offended door to him; or
party is considered a member of the family who
owns the dwelling and equally enjoys peace of b. The violation of the sanctity of the home by
mind, privacy and comfort. trespassing therein with violence or against
the will of the owner.
4. The aggravating circumstance of dwelling requires
that the crime be wholly or partly committed 7. Meaning of Provocation: It must be:
therein or in any integral part thereof. a. Given by the owner of the dwelling;
b. Sufficient; and
This is also present in the following: c. Immediate to the commission of the crime.
i). when the accused actually entered the dwelling
and committed a crime therein, whether the Note: If all these conditions are present, the
commission was previously intended or not. offended party is deemed to have given
ii). When the accused was outside, the act was provocation and the fact that the crime is
committed outside but the effect or crime was committed in the dwelling of the offended party is
produced inside the dwelling. E.g. the accused NOT an aggravating circumstance.
hiding in the bushes aimed his gun to the
victim who was inside the house and REASON: When it is the offended party who
thereafter killed the latter. provoked the incident, he loses his right to the
iii). When the crime was started outside but it respect and consideration due him in his own
continued and was consummated inside the house.
dwelling.
iv). When the crime started in the dwelling even if
continued and consummated outside the Paragraph 4 With Abuse of Confidence or
dwelling. Obvious Ungratefulness
v). When the victim was taken from inside the
dwelling and then brought outside where the That the act be committed with abuse of
crime was committed on his person. confidence or obvious ungratefulness.

5. This is not present when : NOTES:

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1. There are 2 aggravating circumstance which must
be independently appreciated if present in the Examples: the accused pick pocketed the doctor who
same case. save his life; a guest attacked his host; the accused
2. While one may be related to the other in the stole from one who loaned money to pay off a debt;
factual situation in the case, they cannot be boxing the finder of one‘s lost property or who
lumped together as abuse of confidence requires a protected a missing relative.
special confidential relationship between the
offender and the victim, but this is not so in
ungratefulness. Paragraph 5 Commission of a Crime in Certain
3. Abuse of confidence requires the existence of a Places
relationship between the accused and victim by
reason of which the victim reposed trust and had That the crime be committed in the palace of the Chief
confidence on the accused, but which the accused Executive, or in his presence, or where public
abused or took advantage of in order to commit authorities are engaged in the discharge of their duties
the crime. or in a place dedicated to religious worship.

i. The relationship which involved trust may be: The specified places are:
1. palace of the chief executive even IF ABSENT, i.e
a). Created by contract such as malacanang and the mansion, These represent the
employment: as in the case of a body guard, seat of sovereign authority and must therefore be
baby sitter, secretary, house help and respected
domestic helps, a lawyer 2. any other place where the president is present,
b). Created by law as an appointed Guardian, provided that the crime was committed within his
an adoptive parent view or hearing or so near as to disrupt or disturb
c). By Blood, such as between close relatives the president; like when the president is making
d) By Affinity as between in-laws the rounds in the market to check on prices ,or
e) By close association and membership in some where he goes to cut ribbons, or even play golf
common organization or group as fraternal
group, teacher-pupil, church leaders- Note: Actual performance of duties not necessary
members, when crime is committed in palace or in the
f) By Human relationships such as between presence of the chief executive.
lovers, friends, roommates
3. where public authorities are in the actual
Requisites of Abuse of Confidence performance of their functions, as in their offices
1) the offended party has trusted the offender; 4. in a place dedicated to religious worship, even if no
2) the offender abused that trust by committing a religious ceremony is going on.
crime against the offended party; and
3) the abused of trust facilitated the commission of NOTE: Any of these places must have been purposely
the crime. sought for or they were deliberately chosen. Example:
a thief who plies his trade inside church while victims
Note: If the confidence is reposed by another, the are busy with their prayers.
offended party is different from the one who reposed
the confidence and abuse of confidence in that case is Except for the third, the other places mentioned are
not aggravating. aggravating per se even if no official duties or religious
worship are being conducted.
Abuse of confidence is inherent in the crime of
malversation (Art 217), qualified theft (Art 310), estafa Cemeteries are not considered as place dedicated to
by conversion or misappropriation (Art. 315), and worship of God.
qualified seduction (Art. 337)
Requisites Regarding Public Authorities
Requisites of Obvious Ungratefulness 1. crime occurred in the public office
1. the offended party has trusted the offender; 2. public duties are actually performing their public
2. the offender abused that trust by committing a duties.
crime against the offended party; and
3. the act be committed with obvious ungratefulness.. Par 5. Where Par 2.
public Contempt or
Note: Obvious ungratefulness or ingratitude authorities are insult to public
presupposes that the accused was the recipient of engaged in authorities
some gratuitous act or benevolence or liberality from the discharge
the victim for which he ought to have been grateful, of their duties
but instead he committed a crime against the said Public Same
victim. authorities in the
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performance of public establishment, even if dimly lighted as in
their official night clubs.
duties c). That the crime was at night time should not be an
Place where In their office. Outside of their accidental fact.
pubic duty is office.
performed d). The two test to determine its presence :
The offended May or may not Public authority (i) The Subjective Test: that the accused
party be the public should not be purposely sought the night. He could have
authority. the offended committed the crime during day time but he
party. waited for night time.
(ii) The Objective Test: the accused took
advantage of it in order to (a) facilitate the
Requisites (Place Dedicated to Religious commission of the crime (b) hide his identity
Worship) (c) prevent aid from coming to the victim (d)
1. the crime occurred in the place dedicated to minimize the defenses of the victim or (e)
worship of God regardless of religion; facilitate his escape.
2. The offender must have decided to commit the
crime when he entered the place of worship. e). GENERAL RULE: Nighttime is absorbed in
treachery.

Paragraph 6 (a) Nocturnity (b) Uninhabited EXCEPTION: Where both the treacherous mode
place and (c) band of attack and nocturnity were deliberately decided
upon in the same case, they can be considered
That the crime be committed in the nighttime or in an separately if such circumstances have different
uninhabited place, or by a band, whenever such factual bases. Thus:
circumstances may facilitate the commission of the  In People vs. Berdida, et. al. (June 30, 1966),
offense. nighttime was considered since it was
purposely sought, and treachery was further
Whenever more than three armed malefactors shall appreciated because the victim‘s hands and
have acted together in the commission of an offense, it arms were tied together before he was beaten
shall be deemed to have been committed by a band. up by the accused.
 In People vs. Ong, et. al. (Jan. 30, 1975),
NOTES: If all these aggravating circumstances concur there was treachery as the victim was stabbed
in the commission of the crime, all will constitute one while lying face up and defenseless, and
aggravating circumstance. nighttime was considered upon proof that it
facilitated the commission of the offense and
HOWEVER, if their element are distinctly palpable and was taken advantage of by the accused.
can subsist independently, they shall be considered
independently. UNINHABITED PLACE OR SOLITUDE
(DESPOBLADOR) - One where there are no houses
When should these Circumstances Aggravating at all; a place at a considerable distance from town, or
1. When it facilitated the commission of the crime; or where the houses are scattered at a great distance
2. When especially sought for by the offender to from each other. Thus help to the victims difficult to
insure the commission of the crime or for the come by. Examples: athletic bowl; the road from the
purpose of impunity; or gate of Club John Hay to EPZA; Kennon Road; long
3. When the offender took advantage thereof for the stretches of highway; the farms in the provinces.
purpose of impunity.
As in night time, the place must have been purposely
NOCTURNITY OR NIGHTTIME - refers to the period sought for to better attain the criminal purpose.
of darkness between sunset and sunrise or from dawn
to dusk. What should be considered is whether in the place of
the commission of the offense, there was a reasonable
NOTES: possibility of the victim receiving some help.
a). The crime must be wholly committed at night and
not when it started at daytime and ended at night BAND (CUADRILLA) - exists when MORE THAN
time or that it began at night time and was THREE armed malefactors (bad elements) shall have
consummated at daytime. In short it began and acted together in the commission of the crime. Thus,
ended at night. there must be four or more armed men.
b). The emphasis is the absence of day light hence
night time is not appreciated if the place is well The requisite four armed persons contemplated in this
lighted or illuminated, or it takes place inside a circumstance must all be principals by direct
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participation who acted together in the execution of the necessary that the offender took advantage of the
acts constituting the crime. calamity or misfortune.

If one of them was a principal by inducement, there Paragraph 8. With the Aid of Armed Men or
would be no cuadrilla but the aggravating circumstance Persons Who Insure or Afford Impunity
of having acted with the aid of armed men may be
considered against the inducer if the other two acted That the crime be committed with the aid of armed
as his accomplice. men or persons who insure or afford impunity.

Requisites:
NOTES: 1) armed person took part in the commission of the
(a) Armed means all of the accused, not just some, crime, directly or indirectly.
are provided with weapons or means of violence or 2) accused availed of their aid or relied upon them
instruments or tools capable of causing injury to a when the crime was committed.
person. E.g. bladed weapons, stones, sticks
(b) This is not applicable in crimes against chastity but NOTES: There is no conspiracy between the accused
considered in crimes against property, persons, and the armed men. He merely calls upon them to
illegal detention and treason. intimidate, threaten or break the resistance of the
(c) It is distinguished from Organized Syndicated victim. The armed men participate in some minor
Crime Group which was a creation of R.A. 7659 capacity. Thus, they are merely accomplices.
and placed under Article 62. The latter refers to a
group of two or more persons collaborating, If there are four-armed men, aid of armed men is
confederating or mutually helping one another for absorbed in employment of a band.
purposes of gain in the commission of the crime
(d) It is absorbed in the circumstance of abuse of Aid of armed men includes armed women.
superior strength. This is inherent in brigandage.
It is not aggravating:
Paragraph 7. On the Occasion of a Calamity or 1) where the offender and the offended party are
Misfortune equally armed.
2) if the person committing the crime and the
That the crime be committed on the occasion of a armed men are in conspiracy.
conflagration, shipwreck, earthquake, epidemic, or 3) When the others were only casually present
other calamity or misfortune. and the offender did not avail himself of any of
their aid or when he did not knowingly count upon
Elements: their assistance in the commission of the crime.
1. The crime was committed when there was calamity
or misfortune; Par 6. By a Par 8. With
2. The offender took advantage of the state of band the Aid of
confusion or chaotic condition from such Armed men
misfortune. As to their Requires more At least two
number than 3 armed
NOTES: malefactors i.e.
The calamity or misfortune must be serious such as at least four
conflagration, shipwreck, earthquake, epidemic, As to their More than 3 This is present
tsunami, volcanic eruption, resulting to widespread action malefactors shall even if one of
panic, chaos, confusion and a break down of discipline have acted the offenders
due to actual or impending danger to lives or to together in the merely relied on
property. commission of their aid, for
the offense. actual aid is not
May be due to an action of nature or to the action of Thus, band necessary.
man. Example: looting stores abandoned due to flood. members are all Armed men are
principals. mere
If the offender was provoked by the offended party accomplices.
during the calamity or misfortune, this aggravating may
not be considered. Paragraph 9. That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one
Reason for the aggravation: crime, shall have been previously convicted by final
The debased form of criminality met in one who, in the judgment of another crime embraced in the same title
midst of a great calamity, instead of lending aid to the of this Code.
afflicted, adds to their suffering by taking advantage of
their misfortune to despoil them. Therefore it is
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REPETITION OF CRIMES Exception: if the accused does not object and he
admits in his confession and on the witness stand.
The four forms of repetition of crimes, or those which
involve at least two convictions, are: NOTES:
a. It is important that: (a) there be two separate
1. RECIDIVISM (REINCIDENCIA)– where a person, on convictions so that it can not be considered in
separate occasions, is convicted of 2 offenses contemporaneous convictions (b) both be felonies
embraced in the same title in the RPC. This is and are found in the same title i.e. Crimes against
ordinary or generic aggravating and is treated persons, against property, against chastity and (c)
under Paragraph 9 of Article 14 the convictions must follow the chronology of the
2. HABITUALITY or REITERACION – where the commission of the crimes.
offender has been previously punished for an b. It does not prescribe no matter how far ago was
offense to which the law attaches an equal or the first conviction.
greater penalty or for two or more crimes to which c. The accused need not serve the penalty of his first
it attaches a lighter penalty. This is also ordinary or conviction as he may have been pardoned or
generic and is treated under paragraph 10 of placed under probation because what matters is
article 14. the fact of conviction and not service of sentence.
3. HABITUAL DELINQUENCY OR MULTI-RECIDIVISM – The first penalty may be a fine.
where a person within a period of 10 years from d. Amnesty extinguishes the penalty and its effects.
the date of his release or last conviction of the HOWEVER, pardon does not obliterate the fact that
crimes of serious or less serious physical injuries, the accused was recidivist. Thus, even if the
robbery, theft, estafa or falsification, is found guilty accused was granted pardon in the first offense
of the said crimes a third time or oftener. This is but he commits another felony embraced in the
an extraordinary aggravating circumstance and is same title of the RPC, the first conviction is still
covered under Article 62 par 5. An additional counted to make him a recidivist. This is true even
penalty is added o the penalty for the crime pardon is absolute, because pardon only excuses
committed. the service of the penalty, but not the conviction.
4. QUASI-RECIDIVISM – where a person commits a e. The purpose/reason is to prevent specialization of
felony before beginning to serve or while serving crimes. The implication is that the offender is
sentence on a previous conviction for a felony. This specializing on such kind of crime and the law
is a special aggravating in that it cannot be offset wants to prevent any specialization.
by mitigating circumstances and is covered under f. Being an ordinary aggravating, recidivism affects
Article 160. only the periods of a penalty, EXCEPT in
prostitution and vagrancy (Art 202) and gambling
RECIDIVIST - Is one who, at the time of his trial for (PD 1602) wherein recidivism increases the
one crime, shall have been previously convicted by final penalties by degrees. No other generic aggravating
judgment of another crime embraced in the same Title produces this effect.
of the RPC. g. In recidivism, it is sufficient that the succeeding
offense be committed after the commission of the
Requisites: preceding offense PROVIDED that at the time of
1. Offender is on trial for an offense; his trial for the second offense, the accused had
2. He was previously convicted by final judgment of already been convicted of the first offense.
another crime; h. If both offenses were committed on the same
3. Both the first and second offenses are embraced in date, they shall be considered as only one, hence,
the same title of the Code; they cannot be separately counted in order to
4. Offender is convicted of the new offense. constitute recidivism. Also, judgments of
convictions handed down on the same day shall be
Meaning of “at the time of his trial for one considered as only one conviction. This is because
crime” the RPC requires that to be considered separate
convictions, at the time of trial for one crime the
It is employed in its general sense, including the accused shall have been previously convicted by
rendering of the judgment. It is meant to include final judgment of the other.
everything that is done in the course of the trial, from
arraignment until sentence is announce in open court.

What is controlling is at the time of trial not at the time Paragraph 10. Habituality or reiteracion
of the commission of the crime.
That the offender has been previously punished for an
General Rule: To prove recidivism, it is necessary to offense to which the law attaches an equal or greater
allege the same in the information and attached penalty or for two or more crimes to which it attaches
thereto certified copy of the sentences rendered a lighter penalty.
against the accused.
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Requisites: (NOTE: THE CIRCUMSTANCES COVERED UNDER
1. The accused is on trial for an offense; PARAGRAPHS 11 TO 18 ARE LIKEWISE THE
2. He previously served sentence for another offense QUALIFYING CIRCUMSTANCES OF MURDER
to which the law attaches an equal or greater UNDER ARTICLE 148)
penalty or for 2 or more crimes to which attaches a
lighter penalty than that for the new offense; Parragraph 11. In consideration of a Price,
3. He is convicted of the new offense. Promise or Reward

NOTES: That the crime be committed in consideration of a

a. The prior offenses may be violations of special price, reward, or promise.
laws
b. Its appreciation is discretionary with the court Requisites:
1. There are at least 2 principals
a. Principal by Inducement (one who offers)
Habitual Recidivism Reiteracio Quasi- b. Principal by Direct Participation (accepts)
delinquen n/ recidivis 2. The PPR should be previous to and in consideration
cy Habituality m of the criminal act.
Found It is enough Offender One prior
guilty a that a final served conviction Whose Liability is Aggravated
third time judgment sentence for 1. If alleged as a general circumstance – only the
or oftener. has been the 1st liability of the receiver is affected.
rendered in offense. 2. If alleged as a qualifying circumstance – both the
the 1st liability of the giver and receiver are affected.
offense.
Serious/les An offense Not Any NOTES:
s serious embraced in embraced in offense a. This circumstance affects both principals.
physical the same the same b. This deals with the motive. It involves the giver of
injuries, Title of the title. One the price, promise or reward known as the
Robbery, RPC. offense Principal by Inducement and the actor as Principal
theft, which the by Direct Participation.
estafa, or law attaches c. ―In consideration‖ means the PPR was the sole
falsification an equal or reason for the commission of the crime. Had it not
greater been for the PPR the accused would not have
penalty or committed the crime. The actor should not have
two offenses his own reasons for committing the crime. Thus
to which the motive is essential.
law attaches d. The PPR may be in any form: money, chattels,
a lighter material services. It need not be actually delivered,
penalty. it being sufficient that the inducement is accepted.
Extraordina Generic Generic Special The recipient may be the actor himself or a person
ry aggravating aggravating aggravatin closely associated with him such as: promise of a
aggravating g. promotion or employment of a family member.
. e. If the reward is given after the commission of the
Imposition crime without previous promise as an appreciation
of for the aid shown by the other accused, it cannot
additional be considered for the purpose of increasing the
penalty. penalty.
10 years Imprescripti Imprescripti 2nd felony
prescriptive ble ble must be Paragraph 12. By Means of Inundation, Fire,
period committed Poison, Explosion etc
after
conviction That the crime be committed by means of inundation,
by final fire, poison, explosion, stranding of a vessel or
judgment intentional damage thereto, derailment of a locomotive,
of the 1st or by the use of any other artifice involving great waste
but before and ruin.
sentence
begins or NOTES:
while 1. The circumstances under this paragraph will only
serving be considered aggravating if used by offender as a
sentence. means to accomplish a criminal purpose.
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2. These artifices used involve great waste,
destruction and ruin. Conditions/Requisites which the Prosecution
3. These may be (a) inherent in the crime as in must Prove:
Crimes Involving Destruction under Article 332 or 1) the time when the accused determined to
(b) they constitute the crimes in themselves, as in commit the crime.
Arson. 2) an act manifestly indicating that the accused
4. In cases where both burning and death occurs, in has clung to his determination.
order to determine what crime/crimes was/were 3) sufficient lapse of time between such
perpetrated- whether arson, murder, or arson and determination and execution, to allow him to
homicide/murder, it is de rigueur to ascertain the reflect upon the consequences of his act and to
main objective of the malefactor, thus: allow his conscience to overcome the resolution of
a). If the main objective is the burning of the his will.
building or edifice, ( or enclosure for that
matter) but death results by reason or on the NOTES:
occasion of arson, the crime is simply arson, a. The essence of evident premeditation is that the
and the resulting homicide is absorbed. execution of the criminal act is preceded by cool
b). if the main objective is to kill a particular thought and reflection upon the resolution to carry
person who may be in a building or edifice ( or out the criminal intent within a space of time
enclosure) when fire is resorted to as a means sufficient to arrive at a calm judgment. (PEOPLE
to accomplish such goal, the use of fire vs. ABADIES, GR No. 135975, August 14, 2002)
becomes a qualifying aggravating b. Evident premeditation is presumed to exist when
circumstance and the crime is murder only conspiracy is directly established. When
even if a property is burned. conspiracy is merely implied, evident premeditation
c). if the objective is to kill particular person, and cannot be presumed, the latter must be proved like
in fact the offender has already done so, but any other fact. (PEOPLE vs. SAPIGAO, et. al., GR
fire is resorted as a means to cover up the No. 144975, June 18, 2003)
killing, then there are two separate and c. This is however inherent in crimes against
distinct crimes committed- homicide/murder property, such as in theft, robbery and estafa. But
and arson. ( PP. vs. Malngan 503 SCRA 294, in Robbery with Homicide, the premeditation must
Sept. 26, 2006) be to cause death in the course of the robbery.
d) If a person is killed, then the corpse is burned, d. In cases of aberration ictus, it does not apply
the burning constitutes the qualifying unless the accused determined to kill not only the
circumstance of scoffing or ignominy and the intended victim but others who might help or
crime would be murder interpose a resistance.
d) If the body of the dead is placed in an enclosure e. When the offender decides to kill a particular
as a car or a house person and premeditated on the killing of the
5. When another aggravating already qualifies the latter, but when he carried out his plan he actually
crime, any of these circumstances shall be killed another person, it cannot properly be said
considered as generic aggravating. that he premeditated on the killing of the actual
6. Examples: opening the irrigation canal to flood the victim. Unnless the accused determined to kill not
crops or to drown animals; placing a bomb under a only the intended victim but others who might help
bus; parricide/infanticide by poison or interpose a resistance.
f. But if the offender premeditated on the killing of
Par 12. “by means of Par 7. “on the occasion any person, it is proper to consider against the
inundation, fire, etc. of conflagration, offender the aggravating circumstance of
shipwreck, etc. premeditation, because whoever is killed by him is
The crime is committed by The crime is committed contemplated in his premeditation.
means of any such acts on the occasion of g. Premeditation is absorbed by reward or promise. It
involving great waste or calamity or misfortune. is also absorbed in kidnapping for ransom; robbery
ruin. with force upon things where there is entry into
the premises of the offended party; estafa through
Paragraph 13. Evident Premeditation false pretenses where the offender employs
insidious means which cannot happen accidentally.
That the act be committed with the evident
premeditation. h. Examples: Assassinations, ambuscades, assaults
due to a desire for vengeance
Note: (pre is prior, meditate is to think or to reflect)
this means the commission of the crime was the result
of cool thought and reflection. The accused carefully Paragraph 14. Craft, Fraud or Disguises
planned and deliberated on the crime. The commission
is not the result of a reflex action or an-on-the-spur of That craft, fraud, or disguise be employed.
the moment decision.
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Note: These are referred to as the intellectual means craft.
of committing a crime because they involve cunning,
deception and the use of the intellect.
DISGUISE (DISFRAZ) – resorting to any device to
Requisite: enable the offender to conceal his identity and to
The offender must have actually used craft, fraud, or escape liability.
disguise to facilitate the commission of the crime.
Notes: The test is whether the device or contrivance
CRAFT (ASTUCIA) - intellectual cunning or trickery. resorted to by the offender was intended to or make
identification more difficult.
Examples of Craft: luring the victim to the killing
place; pretending to be relatives or employees of the If he is recognized or identified, the disguise will not be
Post Office to gain entry; pretending to be collecting considered aggravating.
agents; pretending to be legitimate passengers of
taxicabs and thereafter the driver is robbed and killed; Disguise includes all attempt to hide one‘s identity in
pretending a person needs help and thereby vehicles the commission of a crime. It is not limited to wearing
are stopped in the highway only to be robbed; the mask, moustaches, false glasses but also hiding one‘s
modus operandi of carnappers of telling the driver to identity in crimes of libel as hiding under the name‖
stop due to a defect and then taking over the car when concerned citizen‖ or the use of assumed name; or
the driver stops muffling one‘s voice.

FRAUD (FRAUDE) - insidious words or machinations

used to induce the victim to act in a manner which Paragraph 15 Taking Advantage of Superior
would enable the offender to carry out his dsign. Strength

Examples of fraud: inducing a victim to sleep in That advantage be taken of superior strength, or
one‘s house; sending a letter purportedly written by a means be employed to weaken the defense.
friend of the victim to lure the victim to come to the
place where he is robbed; Telling a maid to give money Note: This paragraph contemplates 2 aggravating
and valuables as his employer met an accident and circumstances, either of which qualifies a killing to
needs money for hospitalization; courting a lady and murder.
pretending to be an ardent suitor
ADVANTAGE BE TAKEN – the deliberate use of
Notes: Fraud is inherent in estafa by means of deceit excessive force out of proportion to the means of
Both craft (trickery) and fraud (deception) are intended defense available to the victim. It connotes inequality
to catch the victim unaware and to throw him off of forces based on factors such as: (a) superiority in
guard. numbers (b) weapons used (c) physique, body built,
age, sex (d) others such as the weakened condition of
Craft and fraud may be absorbed in treachery if they the victim on account of illness, physical defect ort
have been deliberately adopted as the means, methods diminished reasoning (e) skill of the accused in
or forms for the treacherous strategy, or they may co- unarmed combat or martial arts
exist independently where they are adopted for a
different purpose in the commission of the crime. Test for Abuse of Superior Strength
The relative strength of the offender and his victim and
Illustration: whether or not he took advantage of his greater
strength.
In Pp vs San Pedro, Jan 22, 1980, where the accused
pretended to hire the driver in order to get his car, it NO Advantage of Superior Strength in the
was held there was craft directed to the theft of the Following
vehicle, separate from the means subsequently used to 1. One who attacks with passion and obfuscation
treacherously to kill the defenseless driver. does not take advantage of his superior strength.
2. When a quarrel arose unexpectedly and the fatal
In Pp. vs Masilang, July 11, 1986, there was also craft blow was struck at a time when the aggressor and
where after hitching a ride, the accused requested the his victim were engaged against each other as man
driver to take them to a place to visit somebody, when to man.
in fact they had already planned to kill the driver.
By a Band Abuse of Superior
CRAFT FRAUD Strength
The Act of the accused When there is a direct The element of band is The gravamen of this
done in order not to inducement by insidious appreciated when the circumstance is the taking
arouse the suspicion of words or machinations, offense is committed by advantage by the culprits
the victim constitutes fraud is present. more than 3 malefactors of their collective strength
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regardless of the to overpower their safety from the defensive or retaliatory act of
comparative strength of relatively weaker victim/s. the victim for the latter is not in a position to
the victim/s. defend himself at the time of the attack;
Hence, what is taken into 2. such means, method or form of execution is
account here is not the consciously or deliberately adopted by the
number of the aggressors accused (not an on-the spur-of-the-moment
and the fact that they are decision).
armed, but their relative
physical strength vis-a-vis The attack comes without warning and in a swift,
the offended party. deliberate and unexpected manner, affording the
hapless, unarmed, and unsuspecting victim no chance
Note: Abuse of Superior Strength absorbs to resist or escape.
cuadrilla/band.
Test: It is not only the relative position of the parties
Abuse of superior strength is inherent in the crime of but, more specifically, whether or not the victim was
parricide where the husband kills the wife. It is forewarned or afforded the opportunity to make a
generally accepted that the husband is physically defense or to ward off the attack.
stronger than the wife.
NOTES:
Abuse of superior strength is also present when the a. This is the qualifying circumstance of murder which
offender uses a weapon which is out of proportion to is preferred over the others and it usually absorbs
the defense available to the offended party. the other circumstances which have relation to the
means or method of attack such as nighttime,
uninhabited place, use of poison or explosion, fire
MEANS EMPLOYED TO WEAKEN DEFENSE – the or evident premeditation. If they are not absorbed
offender employs means to materially weaken the they are appreciated as ordinary aggravating
resisting power of the offended party. b. Applicable only to crimes against persons.
c. Means, methods or forms need not insure the
Examples: accomplishment of the commission of the crime.
1. Where one, struggling with another, suddenly d. Applies even if the crime against persons is
throws a cloak over the head of his opponent and complexed with other crimes, such as direct
while in this situation he wounds or kills him. assault.
2. One who, while fighting with another, suddenly e. Killing a child is always treacherous.
cast sand or dirt upon the latter‘s eyes and then f. Rule as to Frontal Attacks:
wounds or kills him. GENERALLY: there is no treachery as the victim
3. When the offender who had the intention to kill the cannot be said to be unaware as he is face-to-face
victim, made the deceased intoxicated, thereby with his attacker.
materially weakening the latter‘s resisting power. EXCEPTIONS:
4. Covering the face of the victim with a sack; pulling i. if the attack was so sudden, deliberate and
down his pants; putting a sleeping pill to get him unexpected and consciously adopted or
drowsy. ii. if the victim was forced into a position where
he is defenseless, as in the Teehankee case
This circumstance is applicable only to crimes against g. In case the attack was preceded by a quarrel:
persons, and sometimes against person and property, there is no treachery
such as robbery with physical injuries or homicide. h. In case of Attack from Behind: Generally
considered as treacherous if this mode was
consciously adopted.
Paragraph 16. Treachery i. Other situations where victim is said to be
defenseless: a) where he was preoccupied: as
That the act be committed with treachery (alevosia). when he was busy studying or eating or watching
an ongoing activity or was answering the call of
TREACHERY (alevosia) – is present when the nature, or was working; b) victim was asleep or
offender commits any of the crimes against the person, resting; c) body was found with hands tied.
employing means, methods or forms in the execution j. In case of several accused, treachery affects only
thereof which tend directly and specially to insure its those who had prior knowledge of or were aware
execution, without risk to himself arising from the of it, that is, in case of conspiracy.
defense which the offended party might make.
When Must Treachery be Present
Elements: 1. When the Aggression is Continuous – it must be
present in the beginning of the assault.
1. the malefactors employ such means, methods
or manner of execution that ensures his or her
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2. When the Aggression is NOT Continuous – it is Meaning Of “Which Add Ignominy To The
sufficient that it was present at the moment the Natural Effects Of The Act”
fatal blow was given. It means adding mental torture or insult to the injury.
The means employed or the circumstances brought
Note: Rule in case of a continuous attack or if about must tend to make the effects of the crime more
there was a break in the attack. Applies to humiliating to victim or to put the offended party to
situations where, at the time of the infliction of the shame, or add to his moral suffering. Thus it is
wound, the victim was defenseless a). There is no incorrect to appreciate ignominy where the victim was
treachery if there was no treachery at the inception already dead when his body was dismembered, for
of the attack b) Even if there be no treachery at such act may not be considered to have added to the
the inception of the attack but there was a break in victim‘s moral suffering or humiliation. (People vs.
the attack, then treachery is to be appreciated Carmina, G.R. No. 81404, January 28, 1991)

Treachery Shall be Considered Even if: NOTES:

1. The victim was not predetermined BUT there was a a. This is appreciated in crimes against persons,
generic intent to treacherously kill any 1st 2 chastity, honor, coercion, unjust vexation.
persons belonging to a class. (same rule for b. Examples: kissing a girl in public; hanging the
evident premeditation) victim in a tree; throwing the body in a urinal or
2. There was aberratio ictus (rule is different for garbage pit; removing the pants; boxing the priest
evident premeditation) who is saying mass; committing rape dog style.
3. There was error in personae (rule is different for c. This is the only aggravating which may arise after
evident premeditation) the commission of the crime; as chopping off the
arms and legs or sex organ of the victim after
REASON FOR THE RULE: When there is treachery, killing him.
it is impossible for either the intended or the actual
victim to defend himself against the aggression. Ignominy Cruelty
Shocks moral conscience Physical
What Circumstances Absorbed by Treachery Moral effect of a crime Pertains to the physical
1. Craft and it pertains to the suffering of the victim so
2. Abuse of Superior Strength moral order, whether or the victim has to be alive.
3. Employing means to weaken the defense not the victim is dead or
4. Band alive
5. Aimed of armed men Paragraph 18. Unlawful Entry
6. Nighttime
Treachery cannot co-exist with passion and That the crime be committed after an unlawful entry.
obfuscation.
There is an unlawful entry when an entrance is
Treachery Abuse of Means effected by a way not intended for the purpose.
Superior Employed to
Strength Weaken the UNLAWFUL ENTRY – when entrance is effected by a
Defense way not intended for a purpose. The passage is other
Means, No means Means employed than the door.
methods, or employed. to materially
forms employed Offender merely weaken the Reason for the Aggravation
to make it takes advantage resisting power
difficult on the of his superior of the offended One who acts, not respecting the walls erected by men
part of the strength. party. to guard their property and provide for their safety,
offended party shows a greater perversity, a greater audacity, hence
to defend the law punishes him with more severity.
himself.
NOTES:
a. Unlawful entry must be a means to effect entrance
Paragraph 17. Ignominy and not for escape.
b. The entry must be to commit a crime and not just
That means be employed or circumstances brought to violate the dwelling else the unlawful entry
about which add ignominy to the natural effects of the becomes trespass .
act. c. This is inherent in crimes of trespass to dwelling,
robbery with force upon things.
IGNOMINY – is a circumstance pertaining to the
moral order, which adds disgrace or obloquy to the Paragraph 19. Breaking of a Wall, Roof, Floor,
material injury caused by the crime. Window
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That as a means to the commission of a crime a wall,
roof, floor, door, or window be broken. Meaning of “or Other Similar Means”
Should be understood as referring to motorized
NOTES: vehicles or other efficient means of transportation
a. These pertains to the wall, roof, floor of a dwelling similar to automobile or airplane.
and the breaking is for the purpose of gaining NOTES:
ENTRY in order to commit a crime inside. Else it is a) Must be used to commit, or to facilitate the
attempted trespass or malicious mischief. If the commission of the crime
wall, etc. is broken in order to get out of the place, b) If used to kill a person as by hitting running over
it is not aggravating. him, this may qualify the killing to murder
b. It is not necessary that the offender should have c). Examples: (i) transporting the victim on board a
entered the building. Thus, if the offender broke car as in abduction or kidnapping (ii) widespread
the window to enable himself to reach a purse robbery using a vehicle to go around the
which he took while his body was outside the neighborhood.
building, the crime of theft was attended by this
aggravating.
c. It is inherent in Robbery With Force Upon Things Paragraph 21 By Inflicting Another Wrong Not
Necessary to the Commission (Cruelty)
Par 19 Par 18
It involves the breaking Presupposes that there is That the wrong done in the commission of the crime be
(rompimiento) of the no breaking. deliberately augmented by causing other wrong not
enumerated parts of the necessary for its commission.
house.
CRUELTY - making the victim suffer slowly and
Breaking In is Lawful in the following deliberately. It is synonymous to torture or slow death
1. An officer, in order to make an arrest, may break or acts of sadism. It is usually done by inflicting
open a door or window of any building in which wounds on the victim while the victim is still alive and
the person to be arrested is or is reasonably at intervals of time to cause maximum pain. Or that the
believed to be. method of killing involves lingering pain or suffering.
2. An officer, if refused admittance, may break open Example: death by skinning him alive, or by slow fire.
a door or window to execute the search warrant or (Memory Aid: Pinikpikan)
liberate himself.
3. Replevin, S4, Rule 60 of the Rules of Court. Requisites:
1. The injury caused be deliberately increased by
causing other wrong;
Paragraph 20. (a) With the Aid of a Minor and 2. The other wrong be unnecessary for the execution
(b) Use of a Motor Vehicle of the purpose of the offender.

That the crime be committed with the aid of persons NOTES:

under fifteen years of age, or by means of motor a. Other crimes such as rape, unnecessary deaths or
vehicle, airships, or other similar means. physical injuries are appreciated as aggravating the
crimes of robbery with homicide.
With the Aid of a Minor b. There must be evidence showing the accused
inflicted the alleged wounds slowly and gradually
MINOR – is one below 15. Suppose the accused is a while the victim is still alive to prolong his suffering
minor over 15 but below 18? and that he is delighted in seeing the victim suffer
in pain. In the ABSENCE of this effect, there is no
Reason of the Aggravation cruelty.
The purpose is to prevent the corruption of minors. c. Cruelty is not inherent in crimes against persons.
d. Cruelty cannot be presumed.
Use Of Motor Vehicle, Airships, Or Other Similar e. If the victim was already dead when the acts of
Means mutilation were being performed, this would also
qualify the killing to murder due to outraging of his
MOTOR VEHICLE - refers to modes of transporting corpse.
people and goods ran by motor energy not muscle
effort. A bicycle to which is attached a motor is a motor IGNOMINY (PAR.17) CRUELTY (PAR. 21)
vehicle. Involves moral suffering Refers to physical suffering

Reason of the Aggravation

It is intended to counteract the great facilities found by Chapter 5
modern criminals in said means to commit crime and ALTERNATIVE CIRCUMSTNACES
flee and abscond once the same is committed.
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ascendant, step-parent, guardian, relative by
Article 15. Alternative Circumstances consanguinity or affinity within the third civil
ALTERNATIVE CIRCUMSTANCES - are those which degree, or the common-law-spouse of the
must be taken into consideration as aggravating or parent of the victim.
mitigating according to the nature and effects of the
crime, and the other conditions attending its Relationship is Mitigating
commission. 1. As a rule in crimes against property (as in case by
a mother- in- law who stole from his son-in –law;
They are: robbery, usurpation, fraudulent insolvency, and
1) relationship arson)
2) intoxication 2. In less grave or light offenses where the victim is a
3) degree of instruction and education of the relative of a lower degree
offender.
Relationship is Aggravating
RELATIONSHIP - it shall be taken when the offended a. In crimes against person
party is the: i. It is aggravating where the offended party is a
a) spouse relative of higher degree than the offender or
b) ascendant when the offender and the offended party are
c) descendant relatives of the same level.
d) legitimate, natural or adopted brother or
sister, or ii. BUT when it comes to physical injuries
e) relative by affinity in the same degree of the 1. It is aggravating when serious physical
offender. injuries even if the offended party is
descendant of the offender. It is also
Note: Under Article 15, relatives by consanguinity aggravating if the offended party is a
within the 4th civil degree are not included. Also relative of higher degree of the offender.
not included is the relationship of uncle and neice. 2. It is mitigating when less serious or slight
physical injuries, if the offended party is a
Other Relatives Included (By Analogy) relative of a lower degree.
1. The relationship of step parents and step
children. iii. In the crime of Homicide or Murder, relationship
REASON: It is the duty of stepparents to is aggravating even if the victim is a relative of
bestow upon there stepchildren a lower degree.
mother‘s/father‘s affection, care and
protection. iv. In Rape, relationship is aggravating when a
2. The relationship of adopted parent and stepfather raped his stepdaughter or a father
adopted child. raped her daughter.

b. In crimes against chastity, relationship is always

Effect of Relationship In general: aggravating regardless of whether the offender is a
i). As basis for a justifying circumstance relative of higher or lower degree of the offended
ii). As an absolutory cause under Articles 20, 247 and party.
332 c. In crimes against honor
iii). As an alternative circumstance under Article 15 d. Where the offense is a grave felony
e. If the offense is a less grave or light felony, it is
Relationship is Exempting when: aggravating if the victim is a relative of an equal or
a) accessory is related to the principal (Art. 20) higher degree
b) a spouse does not incur criminal liability for a crime
of less serious physical injuries or serious physical
injuries if it was inflicted after having surprised the INTOXICATION - is ipso facto mitigating, thus if the
offended spouse and the paramour actually in the prosecution wants to deny the offender the benefit of
act of having sex. (Art. 247) this mitigating, they should prove that it is HABITUAL
c) in the crimes of theft, malicious mischief and and INTENTIONAL.
estafa, if the offender is the spouse, ascendant , or
descendant or if the offender is a sister or brother- Presupposes that when the accused committed the
in-law of the offended party and they are living crime, he had taken in alcohol in such quantity as to
together. (Art. 332) This is an absolutory cause. have affected his mental faculties, blurred his
reasoning and diminished his self control.
Relationship is Qualifying when:
a) Qualified seduction: brother (Art. 337) There is no fixed rule as to the minimum quantity of
b) Rape (Art. 335): when the victim is under 18 alcohol in-take required before it is said that a person‘s
years of age and the offender is a parent, mental faculties had been affected. This is dependent
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on several factors such as the type or kind of liquor When the accused has a high degree of education
taken in i.e. hard vs. soft liquor or wine, brandy vs. gin which he used or availed of to commit or facilitate the
vs. scotch vs. beer; manner of in-take e.g. straight or commission of the crime. Examples are:
on the rocks or food is taken; as well as the personal i) A law student who used his knowledge to defraud
factors such as sex, age, state of health and other another
factors affecting the alcohol tolerance of a person. ii) Physician who kills his patients
iii) A handwriting expert who falsifies using his
Test: (i) external conduct of a person (ii) breathalyzer knowledge
to determine if a person was driving under the iv) A Financial Analyst defrauding a business entity
influence of liquor (iii) Rhomberg test and tandem gait, v) Computer expert who hacks
etc

When It is Mitigating Title 2

PERSONS CRIMINALLY LIABLE FOR FELONIES
It is Mitigating if intoxication is not habitual; or
intentional such that the crime is said to be the result
of an impulse or urge or delusion due to the effects of WHO ARE CRIMINALLY LIABLE
alcohol or if not subsequent to the plan to commit a
felony. Article 16. The following are criminally liable for
GRAVE AND LESS GRAVE FELONIES:
When It is Aggravating 1) Principals
2) Accomplices
It is aggravating when the intoxication is intentional i.e. 3) Accessories
to strengthen the resolve or to use as shield or excuse;
or habitual i.e the accused is used to taking in alcohol The following are criminally liable for LIGHT FELONIES:
as to be alcoholic. However the drinking of wine as an 1) Principals
appetizer is not included. 2) Accomplices
NOTES:
NOTE: When it is proven that the accused was a. The classification into principals, accomplices and
intoxicated when he committed the crime, the accessories is based on the Degree of
presumption is in favor of mitigation and it is for the Participation in the commission of a crime where
prosecution to prove it was intentional or habitual. at least two persons participated.

DEGREE OF INSTRUCTION AND EDUCATION b. This classification does not apply to violations of
special laws where the violators are referred to
What is involved is whether or not the accused finished plainly as offenders, violators, culprits or criminals
formal education or schooling. However what is EXCEPT if the latter provides for the same
considered is not so much the illiteracy or literacy but graduated penalties as those of RPC.
the level of intelligence. The emphasis is the lack of
sufficient intelligence and knowledge of the full c. The classification into the three major classes does
significance of one‘s actions not apply if the several offenders acted in
conspiracy as all will be considered as principals.
NOTES:
a. Some are naturally intelligent and mentally alert d. The purposes of the classification is to determine
though illiterate while some literates are densely the proper penalty to be imposed upon the
ignorant accused. This is one of the factors in determining
b. Note that the rule does not apply to persons 15 the proper penalty to be actually imposed.
years of age or below even if naturally intelligent
or gifted in secondary school because they are e. When there are several participants, the first thing
presumed to be incapable of forming criminal to do is find out if there is CONSPIRACY. However,
intent. if the participation of 1 is so insignificant, such that
even without his cooperation, the crime would be
When it is Mitigating committed just as well, then notwithstanding the
existence of a conspiracy, such offender may be
Generally it is mitigating, especially to crimes mala regarded only as an accomplice. The reason for
prohibita, but not to crimes universally condemned as this is that the law favors a milder form of criminal
evil or those which are mala in se or where the natural liability if the act of the participant does not
law posits the general and obvious rule that said crime demonstrate clear perversity.
should not be done, like rape, murder, or robbery.
f. Accessories are not liable for light felonies.
When it is Aggravating
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REASON: In the commission of light felonies, the 2. A corporation also incurs criminal liability for
social wrong as well as the individual prejudice is the acts of its employees or agents if (i) the
so small that penal sanction is unnecessary. employee or agent committed the offense
while acting within the scope of his
employment and (ii) the offense was
PRINCIPLES OF CRIMINAL LIABILITY committed with at least an intent to benefit
the employer ( PP. vs. Chowderry, 235 SCRA
a. To be guilty of a crime, one must commit the crime 572)
himself (principal) or if committed by another, he
must, in some manner, participate either in its Who are liable if the violation was made by a
commission ( accomplice) or in the fruits thereof ( juridical entity?
accessory).
Per Ching vs. Secretary of Justice ( Feb. 06, 2006)
b. A person cannot escape punishment when he the principles maybe summarized as follows
participates in the commission of a crime on the
ground that he simply acted as an agent or 1. The juridical entity itself where the penalty is
representative of a party. one which can properly be imposed on it, such
as fine or revocation of license
c. Criminally liability is purely personal and is limited
to the acts/omissions of an accused and not for the 2. The officers, employees or agents who actually
acts or omissions of third persons ( res inter executed the prohibited act or incurred the
alios acta rule) .Except when there exists a omission
conspiracy between two or more persons where
the act of one becomes the act of all resulting to a Example: LLamado vs. CA ( 270 SCRA 423) it
joint criminal responsibility or collective liability. was held that even if the officer of the
corporation had no involvement in the
d. There are 2 Parties in all crimes negotiation of the transaction for which he, as
treasurer of the corporation, issued a
ACTIVE SUBJECT (THE CRIMINAL) – those postdated check which bounced, he is liable
enumerated under Article 16. for Violation of B.P. 22.

AS A RULE only natural persons who are alive can 3. The person specifically mentioned by law
be held criminally liable. violated to be held liable.

REASONS: Examples:
(i) The element of mens rea can only be found in a). Section 8 of R.A. 8042 (Migrant and
natural persons: malice in intentional felonies Overseas Filipino Act of l995) provides:
and indifference in culpable felonies are ―In cases of juridical persons the offices
attributes of natural persons i.e. because of having control, management, and
the highly personal nature of the criminal direction of their business shall be held
responsibility. liable‖
(ii) juridical persons cannot be arrested b). P.D. 1612 (Anti Gambling Law) provides
(iii) the principal penalties consisting of that the President shall be liable if
deprivation of life or of liberty, restriction of gambling is carried on by a juridical entity
liberty, deprivation of rights, and the accessory c). In case of libel under Art. 360 the persons
penalties of disqualification, cannot be served liable shall be the editor of a book or
by juridical persons. pamphlet, business manager of a daily
newspaper, magazine or serial publication
When may a juridical entity be held d). when the President of the corporation fails
criminally liable? to remit contributions to PAG-IBIG

A juridical entity may be prosecuted and held liable 4. a). An employee or officer even if not among
if the offense is punishable by a fine. those enumerated by the law violated, if, with
e.g. cancellation of license or franchise knowledge of the illegal act/business, he
consciously contributes his efforts to its
For what acts may a juridical person be held conduct or promotion ( PP. vs. Chowderry)
liable?
b). The culpability of the employee hinge on
1. For acts committed by its responsible officers, his knowledge of the offense and his active
policy makers or those having charge of the participation on its commission. Where it is
management and operation of the entity. shown that the employee was merely acting
under the direction of his superiors and was
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unaware that his acts constituted a crime, he actually executed the act so that all may be held
may not be held criminally liable for an act equally liable.
done for and in behalf of his employer ( PP.
vs. Corpuz, October 1, 2003) Requisites:
1. That they participated in the criminal resolution;
5. Those who, by virtue of their managerial and
position or similar relations to the corporation 2. That they carried out their plan and personally
could be deemed responsible for its took part in its execution by acts which directly
commission, if by virtue of their relations to tended to the same end.
the corporation, they had the power to
prevent the act (crime by omission) NOTE: If The 2nd element is absent, those who did not
participate in the commission of the of the acts of
Where the act is a violation by a juridical execution cannot be held criminally liable, UNLESS the
entity, the officers or employee cannot put crime agreed to be committed is treason, sedition,
up the following defenses: coup d‘etat, or rebellion.
1. It is no defense that he did not benefit from the
act Meaning of “personally took part in its
2. The accused cannot hide behind the principle of execution”
separate corporate personality of the juridical 1. That PDP must be at the scene of the crime,
entity in order to escape liability personally taking part in its execution.
2. Under conspiracy, although he was not present in
PASSIVE SUBJECT (THE INJURED PARTY) – the scene of the crime, he is equally liable as PDP.
is the holder of the injured right: the man, the
juristic person, the group, and the State. To hold two or more persons as principals by direct
participation, it must be shown that there exists a
GENERAL RULE: Corpses and animals cannot be conspiracy between and among them. This is not the
passive subjects because they have no rights that conspiracy punished as a crime but the conspiracy as a
may be injured. mode or manner of incurring criminally or that legal
relationship whereby, in the eyes of the law, it may be
EXCEPTION: Under A253, RPC, the crime of said that the act of any one is the act of all.
defamation may be committed if the imputation
tends to blacken the memory of one who is dead. For conspiracy to exist, there must be an intentional
felony, not a culpable felony, and it must be proved
that all those to be considered as PDPs performed the
Article 17. PRINCIPALS following:

THREE TYPES OF PRINCIPALS A. Unity of Intention - They participated, agreed, or

1) those who take a direct part in the execution concurred in the criminal design, intent or
of the act; purposes or resolution.
2) those who directly force or induce others to
commit it; 1. This participation may be prior to the actual
3) those who cooperate in the commission of the execution of the acts which produced the
offense by another act without which it would not crime ( Anterior Conspiracy ) or it may be
have been accomplished. at the very moment the acts are actually being
executed and carried out ( Instant
NOTE: There are three kinds of principals Conspiracy).
depending on the nature of their participation in 2. Hence it is not necessary to prove that before
the commission of the crime. However, irrespective the commission of the crime, the several
of what type of principal they belong, their penalty accused actually came and met together to
will be the same. plan or discuss the commission of the crime.

3. ―Spontaneous agreement or active cooperation

Par 1. PRINCIPAL BY DIRECT by all perpetrators at the moment of the
PARTICIPATION (PDP) commission of the crime is sufficient to create
a joint criminal responsibility‖ (Sim Jr. vs. CA,
PRINCIPAL BY DIRECT PARTICIPATION (PDP) - 428 SCRA 459)
refers to those who actually and directly take part in
the execution of the act. In all crimes there must B. Unity of Action - All participated in the execution
always be those who actually perform the act which or carrying out of the common intent, design,
brings about the crime. They may be only one person purpose or objective by acts intended to bring
or more. Whenever there are two or more involved in a about the common objective.
crime, it becomes necessary to find out those who
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1. Each must have performed an act, no matter
how small or insignificant so long as it was Direct proof of conspiracy is not necessary. The
intended to contribute to the realization of the existence thereof maybe inferred under the Doctrine of
crime conspired upon. This requires that the Implied Conspiracy which directs that if two or more
principal by direct participation must be at the persons:
crime scene, except in the following instances: (v) Aimed by their acts towards the
(still a principal by direct participation) accomplishment of the same unlawful object.
(vi) Each doing a part so that their acts, though
a). When he is the mastermind apparently independent, were in fact
b). When he orchestrates or directs the actions connected and cooperative.
of the others from some other place (vii) Indicating a closeness of personal association
c). His participation or contribution was and a concurrence of sentiment.
already accomplished prior to the actual (viii) A conspiracy maybe inferred though
carrying out of the crime conspired such: no actual meeting among them to concert is
his role was to conduct surveillance or to proved.
obtain data or information about the place
or the victims; to purchase the tools or Effect of Conspiracy
weapons, or the get away vehicle, or to
find a safe house There will be a joint or common or collective criminal
d). His role/participation is to be executed liability, otherwise each will be liable only to the extent
simultaneously but elsewhere, such as by of the act done by him.
creating a diversion or in setting up a
blocking force (e.g. to cause traffic). For what crime will the co-conspirators be
e). His role/participation is after the execution liable?
of the main acts such as guarding the 1. For the crime actually committed if it was the crime
victim; looking for a buyer of the loot; agreed upon.
―laundering‖ the proceeds of the crime. 2. For any other crime even if not agreed upon,
provided it was the direct, natural, logical
Participation In Both (Intention And Action), consequence of, or related to, or was necessary to
Why Necessary: effect, the crime agreed upon (e.g.killing the
guard). Otherwise only the person who committed
3. Mere knowledge, acquiescence or agreement to the different crime will be held liable (e.g. killing a
cooperate, is not enough to constitute one as a stranger)
party to a conspiracy, absent any active
participation in the commission of the crime, with a When is a co-conspirator freed from liability?
view to the furtherance of the criminal design and
purpose. Conspiracy transcends companionship. a. Only if he has performed an overt act either to:
4. He who commits the same or similar acts on the 1. Disassociate or detach himself from the plan
victim but is a stranger to the conspiracy is 2. Prevent the commission of the second or
separately liable. Simultaneous acts by several different or related crime
persons do not automatically give rise to
conspiracy. b. Likewise, if for any reason not attributable to the law
enforcement agents, he was not able to proceed to
Examples: the crime scene and/or execute an act to help
1. X joined in the planning of the crime but was realize the common objective, then he cannot be
unable to join his companions on the day of held liable as a co-conspirator. Thus he is not liable
the crime because he was hospitalized. He is if he got sick, overslept, or forgot about it, but not
not liable. when law agents took him into custody to prevent
2. X is the common enemy of A and B who are him from doing his part of the agreement.
strangers to one another. Both A and B
chanced upon X. A stabbed X while B shot Thus in Robbery with Homicide, all who conspired
him. A and B will have individual liabilities. in the robbery will be liable for the homicide unless
one of the conspirators proved he tried to prevent
EXCEPTION: When a person joins a conspiracy the homicide.
after its formation, he thereby adopts the
previous acts of the conspirators which are
admissible against him. This is under the Par 2. PRINCIPALS BY INDUCEMENT (PI)
Principle of Conspiracy by Adoption.
PRINCIPALS BY INDUCEMENT (PI) - those who
Proof of Conspiracy induce PDP to commit a crime. One strong enough that
the person induced could hardly resist. This is
Best proof of conspiracy: express conspiracy tantamount to an irresistible force compelling the
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person induced to carry out the execution of the crime. 3. Must be made directly with the intention of
Advised language is not enough, unless he who made procuring the commission of the crime and
such remark or advise is a co-conspirator in the crime is therefore the determining cause and it
committed. thus precedes the crime
4. They do not include thoughtless or
Requisites: imprudent utterances. Mere advises,
counsel or suggestions or exhortations.
1. that the inducement be made directly with the 5. Command prior to the commission.
intention of procuring the commission of the 6. Executor had no personal reason.
crime.
2. that such inducement be the determining  By the use of Inciting Words. These are words
cause of the commission of the crime. uttered while a crime is going on by one who
is present and are directed to a participant in
NOTES: the crime, such as the words ― sige pa, kick
 The one who induced is merely an accomplice him, kill him, bugbugin mo‖. The following
if he merely goaded or provided encouragement to must however be considered
the offender. 1. Whether the words were uttered by one
with moral ascendancy over the accused
 If the inducement was made while the crime is and to whom obedience is due from the
already taking place, inducement cannot be said to accused
be the reason for the felonious act. 2. Whether the utterances were the result of
the excitement generated by the situation
 One cannot be held guilty of having instigated (not inciting word) or that the utterer was
the commission of the crime without first being caught up in his own excitement or
shown that the crime was actually committed or emotion, or whether the utterer was coolly
attempted by another. and deliberately uttering such words with
the intention that they be acted upon
 NO PI or PIC unless there is PDP. But there (inciting word)
can be PDP without PI or PIC. 3. Whether the crime would be committed
anyway even without the utterances (not
Ways of becoming a principal by inducement: inciting word), or if such utterances were
the moving cause of the crime (inciting
1. by directly forcing another to commit a crime word)
 by using irresistible force;
 by causing uncontrollable fear.  By earnest and persistent solicitation or
cajoling amounting to moral force by one with
Note: The PDP may set up the use of force as authority or influence over the accused
an exempting circumstance. (Sir Sagsago)
E.g. everyday W tells H that she hates C and
2. by directly inducing another to commit a crime. The that H must kill C. after 2 years, H actually
inducement assumes several forms such as the killed C.
following:
Principal by induction Offender who made
 By the giving of a price, promise or reward. proposal to commit a
This must be made with the intention of felony
procuring the commission of the crime and not There is an inducement to Same.
as an expression of appreciation. The same commit a crime
must be the sole reason for the commission of Becomes liable only when The mere proposal to
the crime. the crime is committed by commit a felony is
PDP. punishable in treason or
This also serves as an aggravating rebellion. However, the
circumstance which will affect both the giver person whom the
and the recipient. proposal is made should
not commit the crime.
 By giving Words of Command. Otherwise, the proponent
1. The utterer must have an ascendancy or becomes PI.
influence over the PDP, or is one entitled Involves any crime. The proposal to be
to obedience from the PDP punishable must involve
2. The words must be so direct, so efficacious, only treason or rebellion.
so powerful and persistently made, as to
amount to physical or moral force Effects of Acquittal of PDP Upon Liability of PI
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1. Conspiracy is negatived by the acquittal of co-
defendant. c. Through Negligent Acts such as
2. One cannot be held guilty of having instigated the 1. The bank employee who failed to ascertain
commission of the crime without first being shown the identity of the presenter of a check
that the crime was actually committed or and who initials it
attempted by another. 2. The guarantor who failed to ascertain the
identity of the holder of a check presented
BUT if the one charged is PDP is acquitted because for encashment
he acted without intent or malice, his acquittal is 3. A security guard whose laxity enabled a
not a ground for the acquittal of the PI. killer to enter the compound and kill an
occupant therein
REASON: In exempting circumstance, such as
when the act is not voluntary because of lack of NOTE: The basis is the importance of the cooperation
intent on the part of the accused, there is a crime to the consummation of the crime. If the crime could
committed only that there is no criminal. hardly be committed without such cooperation, then
such cooperation would bring about a principal. But if
Par 3. PRINCIPALS BY INDISPENSABLE the cooperation merely facilitated or hastened the
COOPERATION ( PIC) consummation of the crime, this would make the
cooperator merely an accomplice.
PRINCIPALS BY INDISPENSABLE COOPERATION
( PIC) - those who cooperate in the commission of the In case of doubt, favor the lesser penalty/liability.
offense by another act without which it would not have
been accomplished. There must be a community of ART. 18. ACCOMPLICES
design or common purpose between the PIC and the
PDP, but not a conspiracy. The PIC knows or is aware ACCOMPLICES - those persons who, not being
of the intention or purpose of the PDP and he included in article 17, cooperate in the execution of the
cooperates or concurs in its realization by performing offense by previous or simultaneous acts. They are also
an act without which the offense would not have been referred to as the” Accessories Before the Fact”.
accomplished.
Requisites:
Requisites:
1. Participation in the criminal resolution, that is, a) that there be community of design; i.e.,
there is unity of criminal purpose and intention knowing the criminal design of the principal by
immediately before the commission of the crime direct participation, he concurs with the latter
charged. in his purpose;
2. Cooperation in the commission of the offense by b) that he performs previous or simultaneous acts
performing another act, without which it would not that are not indispensable to the commission
have been accomplished. of the crime; and
c) that there be a relation between the acts done
The cooperation may be: by the principal and those attributed to the
person charged as an accomplice.
a. By moral cooperation such as (i) providing
technical advise, expertise on how to execute NOTES:
the crime such as on how to avoid security 1. There is no conspiracy between the accomplice
arrangements (ii) revealing the combination and the PDP but there is community of design
numbers of a bank vault, or the location of between them i.e the accomplice knows and is
warning devices (iii) revealing the aware of the intent, purpose or design of the PDP.
whereabouts of a victim. He then concurs, or approves of the intent of the
PDP by cooperating in the accomplishment of the
b. By Physical external acts such as: purpose through an assistance given the PDP.
1. Providing the weapon or tools, or the key to 2. The cooperation of the accomplice is not
open the building indispensable in that the crime would still be
2. Providing the mode of transportation to accomplished even without his cooperation. His
enable the accused to reach the place of cooperation or assistance may facilitate or make
the scene of the crime easier the commission the crime but the crime
3. Dragging he victim to the place of execution would still be accomplished anyway. The acts of
4. Leaving open the doors, giving the key to the accomplice must however be related to the
open the building acts of the PDP but they merely show that the
5. Holding on to a victim to preventing him accomplice agrees, approves or concurs with what
victim from resisting or drawing a weapon the PDP intends to do or what he has done.
6. Holding back a person from going to the 3. The cooperation may be in the following forms:
assistance of a victim
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a. Moral cooperation as in word of execution of the offense by previous and/or
encouragement or advises simultaneous acts by means of which they aided or
b. Through external acts which are either facilitated the execution of the crime but without
previous or simultaneous to the execution of indispensable act for its accomplishment. They are
the criminal acts, such as : merely accomplices.
1. Giving of additional weapons or ammunition
or a faster mode of transportation, or food Further, the crime could have been accomplished even
to the accused without the participation of X and Y. ― In some
2. Blocking, or tripping a person who intends exceptional cases, having community of design with
to assist the victim the principal does not prevent a malefactor from being
3. Throwing stones, spitting, kicking, or regarded as an accomplice if his role in the
delivering a blow, at the victim perpetration of he crime was…of minor character‖.
4. Continuing to choke the victim after seeing
that a deadly or fatal blow had been NOTE: Had it been that the victim as not immobilized
inflicted on the victim and could still escape, then X and Y would be
considered as principals as they would still be
Note: The act of the accomplice should not be considered as detaining and preventing the escape of
more fatal or more deadly or mortal than that the victim.
delivered by the PDP
Accomplice Co-conspirator
Example: (PP. vs. Cual, Mach 9, 2000). X Liability is 1 degree lower Liability is collective, not
and the victim Y were fighting and grappling than that of the principal. individual.
for the possession of a steel pipe. B arrived Came to know of the Know of the criminal
and hacked at Y who ran away. X stood by criminal intention after the intention as he is one of
while B pursued Y and killed him. Is X an principals have reached a the authors.
accomplice? decision.
Merely concur and Decide to commit the
Accomplice Principal By cooperate in the crime.
Indispensable commission of the crime.
Cooperation Merely the instruments Authors of the crime.
Acts of an accomplice cooperation of the PIC is who perform acts not
are not indispensable to one without which the essential for the
the consummation of offense would not have perpetration of the
the offense in that the been accomplished. offense.
crime would still be Acts are not Acts are indispensable.
consummated even indispensable.
without his cooperation.
No conspiracy between Conspiracy exist between
the accomplice and the the PIC and the PDP. Article 19. ACCESSORIES
PDP.
ACCESSORIES - are those who, having knowledge of
Example: PP. vs. Roland Garcia: Jan. 15, 2002 the commission of the crime, and without having
participated therein, either as principals or accomplices,
FACTS: In a case of kidnapping for ransom, the police take part subsequent to its commission in any of the
arrested the accused who received the money from the following manners:
wife of the victim. They learned the victim was kept in
a house. The police proceeded to the house where 1. by profiting themselves or assisting the
they surprised X and Y who were seated and who tried offender to profit by the effects of the crime.
to enter a room to get guns. The two were not among 2. by concealing or destroying the body of the
the four who actually kidnapped the victim. The victim crime, or the effects or instruments thereof, in
was found in a room handcuffed and blindfolded. order to prevent its discovery.
3. by harboring, concealing or assisting in the
QUESTION: What is the criminal liability of X and Y? escape of the principals of the crime, provided the
accessory acts with abuse of his public functions or
HELD: At the time X and Y were caught, the victim whenever the author of the crime is guilty of
had already been rendered immobile, his eyes treason, parricide, murder, or an attempt to take
blindfolded and his hands handcuffed. He could not the life of the Chief Executive, or is known to be
have gone elsewhere and escaped. It is clear X and Y habitually guilty of some other crime.
were merely guarding the house for purpose of either
helping the other accused in facilitating the successful NOTE: They are referred to as the Accessories
denoument of the crime or repelling any attempt to Proper or the Accessories- After- the-Fact. This is
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after the crime has been committed by others. It is 6. FENCE – person who commits the act of
only then that they enter into the picture. fencing. He is not accessory but a principal
Requirement of Scienter: All 3 kinds of accessories in the crime defined and punished by Anti-
require that they must have knowledge of the Fencing Law.
commission of the crime otherwise they are not liable 7. Mere possession of anything of value
even if they did an act described in Article 19. which has been the object of robbery or
theft shall be prima facie evidence of
KINDS: fencing.
8. if committed by juridical person, the
1. The First Kind: By profiting themselves or President, General Manager or any officer
assisting the offender to profit by the effects who knows the commission of the crime
of the crime. shall be liable
9. Fencing includes the situation where there
a. The effects of the crime includes the property is failure of any establishment to obtain
taken as well as the price, promise or reward the necessary permit regarding things
given as the determining cause of the crime. obtained from unlicensed dealer.
b. ―Profiting themselves” include any act of
dealing with the property including accepting e. If the property was the proceeds of Highway
as a gift, donation, security or purchasing it a Robbery or Piracy, the dealer is not liable as
lower price. The transaction involving the an accessory but for Violation of P.D. 532 for
property however must be mutual and the crime of Aiding/Abetting Brigands or
voluntary with whosoever the accessory dealt Pirates
with otherwise he is liable as the principal in
theft or robbery. 2. The Second Act: By concealing or destroying
the body of the crime or the effects or
Example: X pick-pocketed the money stolen by instruments in order to prevent its discovery.
Z from another. X is not an accessory even if
he profited himself but is liable for theft. Or if a. To conceal or destroy the body of the crime
X poked a gun at Z and took the money, he includes all manner of interfering with, or
would be liable for robbery. If Z dropped some altering the original conditions of the crime
of the money he stole which X picked up, X is scene, or of anything therein which may be
liable for theft not as an accessory. considered as evidence, prior to a completion
of the evidence gathering by the law
c. ―Assisting the offender profit” includes enforcers.
acts of looking for a buyer, though no Examples:
commission is received, or of secreting it away 1. Changing the position of the body of the
or joining in its disposal. victim
2. Placing a weapon or removing one or
d. Relation to Pres. Decree No. 1612 or ―The Anti replacing a weapon
Fencing Law‖ 3. Throwing pieces of evidence as cigarettes
butts
1. If the crimes involve theft or robbery, the 4. Washing off the blood stains or cleaning
acts may be punished as ―FENCING‖ i.e. the crime scene
the act of any person ― who, with intent to 5. Placing a suicide note
gain for himself or for another, shall buy, 6. Making unnecessary foot prints
receive, possess, etc. or in any manner
deal in any article, item, object, or b. The object or purpose must be to prevent the
anything of value which he knows or authorities from discovering what truly
should be known to him, to have been transpired such as the number and identity of
derived from the proceeds of robbery or the assailants; how the crime was committed,
theft‖ and all matters related to the solution of the
2. The knowledge (scienter) may be actual or crime and prosecution of the offenders.
constructive
3. The venue is where the property is found 1. Thus one who help moved the body not
4. The prior conviction of the thief/robber is knowing the reason why is not an
not required to convict the fence. But it be accessory
proved the property came from 2. One who acted out of curiosity or who
robbery/theft, not any other offense such moved the body for fear of reprisal or of
as estafa, malversation, kidnapping. being blamed as the killer is not an
5. An accessory cannot again be prosecuted accessory
for fencing and vise-versa
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3. The Third Act: By harboring, concealing or Once the principal is later tried but the case against the
assisting in the escape of the principal. accessory has not yet been terminated, the trial against
the accessory must be suspended to await the out
a. There are two kinds of accessories under this come of the trial against the principal. However the
mode: two cases maybe consolidated and tried jointly, if
1. A Public Officer- he must abuse his public proper.
function and the crime by the principal
maybe any crime. If there was no abuse Instances when an accessory may be convicted
then he will be considered as a private without conviction on the part of the principal:
person.
1. if the act committed by the accessory is under
Example: The Mayor hides a suspect in his subsection 1 and 2;
office to prevent identification or provides 2. if the principal is acquitted by reason of an
a false alibi for him exempting circumstance;
3. if the principal is not in the custody of proper
2. A Private Person- the principal must be authorities;
guilty of treason, parricide, murder, 4. if the accessory helped the principal to escape.
attempt on the life of the chief executive,
or is habitually guilty of some other crime. NOTE: Neither the letter nor spirit of the law
requires that the principal be convicted first before
b. Meaning of the term‖ guilty‖. For purposes of one may be punished as an accessory. As long as
charging a person as an accessory, the term the corpus delicti is proved and the accessory‘s
does not mean a judicial pronouncement of participation is shown, he can be held criminally
guilt but means ‖probably guilty of‖. But where liable.
the court later finds that the crime committed
by the principal is not any of the enumerated If the principal is acquitted, should the
offenses, then the private person who assisted accessory be also acquitted?
him escape is not an accessory.
c. The acts include (i) giving of material help If the principal was acquitted by reason of a justifying
such as food, money or clothing (ii) providing circumstance, then the accessory must also be
shelter, a safe house or hideaway (iii) acquitted.
providing a mode of transportation (iv)
providing disguises, false identification papers, If the principal was acquitted due to an exempting
as well as by (v) refusing to cooperate with the circumstance, the accessory may still be convicted.
authorities or to identify the principal or (vi)
giving disinformation or false data If the ground is that the guilt was not proven beyond
d. Under Pres. Decree No. 1829, the same act reasonable doubt, the accessory may still be convicted
maybe punished as ―Obstruction of Justice‖ - if his acts fall under either paragraph (a) or (b)
the crime committed by any person who assist
in the escape of a person who committed any If the principal dies, may the accessory still be
crime. This includes any act that would prosecuted?
prevent the accused from being prosecuted
such as using force, threat, intimidation, undue Yes, if the act is under either paragraph (a) or (b)
influence to prevent a person from being a
witness. But if his act falls under paragraph (c) there are two
views on the matter. The first view holds that he
May the Accessory be tried and declared guilty cannot be prosecuted for in legal contemplation there
ahead of the principal? was no principal whom he assisted. The second view
holds that the accessory may still be prosecuted
As a rule the answer is no because of the principle that because the death merely extinguished the liability of
the liability of the Accessory is Subordinate to that of the principal but the crime remains and the
the Principal. There must first be a person convicted as participation of the accessory in it may still be proved.
a principal before there can be an accessory.

However, the accessory maybe prosecuted ahead of Principal Accessories

the principal even if the principal has not yet been Takes direct part or Does not Take direct part
identified or arrested or has surrendered if: First; the cooperates in, or induces or cooperates in, or
act of the accessory is under either paragraph (a) or the commission of the induces the commission of
(b) or Second; even under paragraph C if the principal crime the crime
has not yet been placed under the jurisdiction of the Cooperates in the Does not cooperate in the
authorities. commission of the offense commission of the
by acts either prior offense.
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thereto or simultaneous PENALTY - is the suffering that is inflicted by the state
therewith for the transgression of a law.
Participates during Participation is
commission of the crime subsequent to the Juridical Conditions of Penalty:
commission of the crime. 1. must be productive of suffering, without
however affecting the integrity of the human
personality
ART. 20. ACCESSORIES EXEMPT FROM 2. must be proportional/commensurate with
CRIMINAL LIABILITY the offense – different crimes must be punished
with different penalties.
Who are Exempt 3. must be personal – no one should be
punished for the crime of another.
The penalties prescribed for accessories shall not be 4. must be legal – it is a consequence of the
imposed if the principal is his: judgment according to law.
a. Spouse, 5. must be certain – no one may escape its
b. Ascendant, effects.
c. Descendant, 6. must be equal for all.
d. Legitimate, natural and adopted brothers and 7. must be correctional.
sisters, or
e. Relatives by affinity within the same degree Purpose of the State in Punishing Crimes

In other words, those who are accessories under The State has an existence of its own to maintain, a
paragraph (b) and (c) if the principal is a relative. With conscience to asset, and moral principles to be
the SINGLE EXCEPTION of accessories falling within vindicated. Penal justice must therefore be exercised
the provisions of paragraph 1 of the next preceding by the State in the service and satisfaction of a duty,
article. and rest primarily on the moral rightfulness of the
punishment inflicted (to secure justice). The basis of
The relatives are the same as those under Article 15 the right to punish violations of penal law is the police
(Relatives by consanguinity within the 4th civil degree power of the state.
are NOT exempted)
Theories Justifying Penalty:

BASIS: This is in recognition of the ties of blood and is 1. PREVENTION – the state must punish the
an absolutory cause. criminal to prevent or suppress the danger to the
state arising from the criminal acts of the offender.
Notes: 2. SELF-DEFENSE – the state has a right to
a. A person is not liable for defending his blood punish the criminal as measure of self-defense so
relatives within the 4th civil degree. But he is liable as to protect society from the threat and wrong
if he helps them escape or if he destroys the inflicted by the criminal.
evidence against them. 3. REFORMATION – the object of punishment
b. Those under paragraph (a) are not exempt in criminal cases is to correct and reform the
because it is presumed what motivated them is offender.
greed, rather than ties of blood. 4. EXEMPLARITY – the criminal is punished to
c. Accessories to a light offense are also exempt. serve as example to deter others from committing
d. Public officers under par 3 of Art 19 are also crimes.
exempt because ties of blood constitutes a more 5. JUSTICE – that crime must be punished by
powerful incentive than the call of duty. the state as an act of retributive justice, a
e. The benefits of the exemption under Art 20 do not vindication of absolute right and moral law violated
apply to PD 1829 which penalizes the act of any by the criminal.
person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehensions of 3-Fold Purpose of Penalty Under the Code
suspects and the investigation and prosecution of 1. Retribution or Expiation – the penalty
criminal cases. is commensurate with the gravity of the offense.
2. Correction or Reformation – shown by
the rules which regulate the execution of penalties
Title 3 consisting in deprivation of liberty.
PENALTIES 3. Social Defense – shown by its
inflexible severity to recidivists and habitual
Chapter 1 delinquents.
PENALTIES IN GENERAL
PENALTIES THAT MAY BE IMPOSED (Article 21,
RPC)
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payment.
RULE: No felony shall be punishable by any penalty not
prescribed by law prior to its commission. In other
words, a felony shall be punishable only by the penalty When Criminal Liability Under the Repealed Law
prescribed by law at the time of its commission. Subsists

This announces the policy of the State as regards 1. When the provisions of the former law are
punishment of crimes. reenacted; or
2. When the repeal is by implication – When a penal
REASON: The law cannot be rationally obeyed UNLESS law which impliedly repealed an old law, is itself
it is first shown. NO act will be considered criminal until repealed, the repeal of the repealing law revives
the Government has made it so by law. the prior penal law, unless the language of the
statute provides otherwise. When the repeal is
RETROACTIVE EFFECT OF PENAL LAWS (Article absolute, criminal liability is obliterated.
22, RPC). 3. When there is a saving clause.

GENERAL RULE: Penal laws are applied prospectively.

EFFECT OF PARDON BY THE OFFENDED PARTY
EXCEPTION: Penal laws shall have a retroactive effect (Article 23, Rpc)
insofar as they favor the person guilty of a felony.
Provided that: GENERAL RULE: A pardon by the offended party does
1. The offender is not a habitual criminal, as this not extinguish criminal liability of the offender.
term is defined in rule 5 of article 62 of this
Code, although at the time of the publication REASON: A crime is committed against the state.
of such laws a final sentence has been Only the Chief Executive can pardon the offenders.
pronounced and the convict is serving the BUT civil liability with regard to the interest of the
same. injured party is extinguished by his express waiver.
2. The new law does not provide against the
retroactive application of the law. EXCEPTIONS: Pardon by the offended party will bar
criminal prosecution in the ff crimes:
The Favorable Retroactive Application of the
Law (if justified) May Find the Defendant in 1 of 1. Adultery and Concubinage (A344, RPC)
the 3 Situations:
1. The crime has been committed and the EXPRESS OR IMPLIED pardon must be given by
prosecution begins. the offended party to BOTH offenders.
2. The sentence has been passed but service has
not begun. Pardon must be given PRIOR to the institution of
3. The sentence is being carried out. the criminal action.

NOTES: 2. Seduction, Abduction, Acts of Lasciviousness

The retroactive effect of criminal statutes does not (A344, RPC)
apply to culprit‘s civil liability.
EXPRESS pardon by the offended party or her
REASON: The rights of the offended persons or parents or grandparents or guardian.
innocent 3rd parties are not within the gift of the
arbitrary disposal of the state. Pardon must be given prior to the institution of the
criminal action. However, marriage between the
An Offense Causes 2 Classes of Injuries victim and the offender EVEN AFTER the institution
of the criminal action or conviction of the offender
Social Injury Personal Injury will extinguish the criminal action or remit the
Produced by the Caused to the victim of penalty already imposed against the offender, his
disturbance and alarm the crime who suffered co-principals, accomplices and accessories.
which are the outcome damage to his person,
of the offense. property, honor or NOTE: Pardon under A344 is only a bar to criminal
chastity. prosecution, it does not extinguished criminal
Is sought to be repaired Repaired through liability. It is not one among the causes under A89.
through the imposition indemnity.
of penalties. 3. Rape (as amended by RA 8353)
Offended party cannot The offended party may
pardon the offender so waive the indemnity The subsequent valid marriage between the victim
as to relieve him of the and the State has no and the offender extinguishes criminal liability or
penalty. reason to insist in its the penalty imposed.
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PRINCIPAL PENALTIES – those expressly imposed
In case the legal husband is the offender, by the court in the judgment of conviction. Principal
subsequent forgiveness by the wife as offended penalties may either be:
party shall also produce the same effect. 1. divisible those that have fixed duration and are
divisible into three (3) periods:
2. indivisible those which have no fixed duration
MEASURES OF PREVENTION OR SAFETY WHICH (death; reclusion perpetua; perpetual absolute
ARE NOT CONSIDERED PENALTIES (A24, RPC): or special disqualification; public censure)

1. The arrest and temporary detention of accused Capital punishment: Death.

persons, as well as their detention by reason of
insanity or imbecility, or illness requiring their Afflictive penalties:
confinement in a hospital.
Reclusion perpetua,
2. The commitment of a minor to any of the institutions Reclusion temporal,
mentioned in article 80 and for the purposes Perpetual or temporary absolute
specified therein. disqualification,
Perpetual or temporary special disqualification,
Where a minor offender was committed to a Prision mayor.
reformatory pursuant to A80 (now PD 603), and
thus while detained he commits a crime therein, he Correctional penalties:
cannot be considered a quasi-recidivist since his
detention was only preventive measure. Quasi- Prision correccional,
recidivism presupposes the commission of a crime Arresto mayor,
during the service of the penalty for a previous Suspension,
crime. Destierro.

Commitment of a minor is not a penalty because Light penalties:

the imposition of sentence in such case is
suspended. Arresto menor,
Public censure.
3. Suspension from the employment or public office
during the trial or in order to institute proceedings. Penalties common to the three preceding
classes:
4. Fines and other corrective measures which, in the
exercise of their administrative disciplinary powers, Fine, and
superior officials may impose upon their Bond to keep the peace.
subordinates.
ACCESSORY PENALTIES
5. Deprivation of rights and reparations which the civil
law may establish in penal form. Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Reasons Why they are NOT Penalties Suspension from public office, the right to vote and
1. Because this gives justification for detaining the be voted for, the profession or calling.
accused. Otherwise, the detention would violate Civil interdiction,
the constitutional provision that no person shall Indemnification,
deprived of life, liberty and property without due Forfeiture or confiscation of instruments and
process of law. And also, the constitutional right of proceeds of the offense,
an accused to be presumed innocent until the Payment of costs.
contrary is proved.
2. Because they are not imposed as a result of AS TO SUBJECT MATTER AS TO GRAVITY
judicial proceedings. Corporal (death) Capital
3. The offender is not subjected to or made to suffer Deprivation of freedom Afflictive
these measures as a punishment for a crime. (reclusion, prision, arresto)
Restriction of freedom Correctional
(destierro)
CHAPTER 2 Deprivation of rights Light
Classification of Penalties (disqualification and
suspension)
CLASSIFICATION OF PENALTY (A25, RPC): Pecuniary fine

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OUTLINE OF ACCESSORY PENALTIES INHERENT Under A9, RPC, where the fine in question is
IN PRINCIPAL PENALTIES: exactly P200, it is a light penalty, thus the offense
is a light felony. Whereas, under A26, RPC, it is a
DEATH RECLUSIO PRISION PRISION correctional penalty, hence the offense involved is
N MAYOR CORRECTIO a less grave felony. This discrepancy shall be
PERPETU NAL resolved liberally in favor of the accused, hence A9
A/ prevails over A26.
TEMPORA
L Article 9 Article 26
Perpetual Civil Temporary Suspension Applicable in Applicable in
absolute interdiction absolute from public determining the determining the
disqualifica for life or disqualifica office, prescriptive period of prescriptive period of
tion during the tion profession or felonies. penalties.
sentence calling

Civil Perpetual That of Perpetual Chapter 3

interdiction absolute perpetual special Duration and Effect of Penalties
during 30 disqualificat special disqualificatio
years, if ion, unless disqualifica n from SECTION 1
not expressly tion from suffrage, if Duration of penalties
expressly remitted in suffrage, the duration
remitted in the pardon unless of DURATION OF EACH DIFFERENT PENALTIES
the pardon of the expressly imprisonment (A27, RPC):
principal remitted in exceeds/ 8
penalty the pardon months, 1. RECLUSION PERPETUA - 20 years and 1 day to
of the unless 40 years.
principal expressly
penalty remitted in 2. RECLUSION TEMPORAL – 12 years and 1 day to
the pardon of 20 years.
the principal
penalty 3. PRISION MAYOR AND TEMPORARY
DISQUALIFICATION – 6 years and 1 day to 12
Note: DESTIERRO has no accessory penalty. years, except when disqualification is accessory
penalty, in which case its duration is that of the
FINE - WHEN AFFLICTIVE, CORRECTIONAL, OR principal penalty.
LIGHT PENALTY (Article 26, RPC)
4. PRISION CORRECTIONAL, SUSPENSION AND
A fine, whether imposed as a single or as an alternative DESTIERRO – 6 months and 1 day to 6 years,
penalty, shall be considered: except when suspension is an accessory penalty, in
which case its duration is that of the principal
1. afflictive penalty - if it exceeds 6,000 pesos penalty.
2. correctional penalty - if it does not exceed
6,000 pesos but is not less than 200 pesos 5. ARRESTO MAYOR – 1 month and 1 day to 6
3. light penalty - if it be less than 200 pesos. months.

NOTES: 6. ARRESTO MENOR – 1 day to 30 days

a. The classification applies if the fine is imposed as a
single (e.g. 200 to 6000) or alternative penalty 7. BOND TO KEEP THE PEACE – the period during
(e.g. arresto mayor or fine from 200 to 1000). which the bond shall be effective is discretionary to
Hence, it does not apply if the fine is imposed the court. (As amended by Section 21, Republic
together with another penalty. Act No. 7659.)
b. HOWEVER, penalty cannot be imposed in the
alternative since it is the duty of the court to DESTIERRO – is a punishment whereby a convict is
indicate the penalty imposed definitely and banished to a certain place and is prohibited from
positively. Thus, the court cannot sentence the entering or coming near that place designed in the
guilty person in a manner such as ―to pay fine of sentence, within a radius not less than 25 kilometers,
P1000, or to suffer an imprisonment of 2 years, nor more than 250 kilometers. It is a principal, divisible
and to pay the cost.‖ and correctional penalty
c. If the fine imposed by the law for the felony is
exactly P200, it is a light felony. If the convict should enter the prohibited places, he
commits the crime of Evasion of Service of sentence
Pp vs Yu Hai, 99 P 725 under ART. 157, RPC.
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(permanent/temporary absolute
DESTIERRO IS IMPOSED IN THE FOLLOWING disqualification, detention. Suspension) is from
SITUATIONS: the day on which the judgment of conviction
becomes final.
1. When a legally person who had surprised his
or her spouse in the act of sexual intercourse REASON: Under A24, the arrest and temporary
with another and while in that act, or detention of the accused is not penalty.
immediately thereafter, should kill or inflict
serious physical injuries upon the other spouse 2. WHEN THE OFFENDER IS NOT IN PRISON –
and/or the paramour or mistress. (Serious the duration of the penalty consisting in
physical injuries or death under exceptional deprivation of liberty, is from the day that the
cases) offender is placed at the disposal of judicial
2. In the crime of grave threat or light threat, authorities for the enforcement of the penalty.
when the offender is required to put a bond
for good behavior but failed or refused to do 3. THE DURATION OF OTHER PENALTIES – the
so under ART. 284, such convict shall be duration is from the day on which the offender
sentenced to Destierro so that he would not be commences to serve his sentence.
able to carry out his threat. (Failure to give a
bond for good behavior) NOTE: If on appeal, the service of sentence should
3. In the crime of concubinage, the penalty commence from the date of the promulgation of the
prescribed for the concubinage is Destierro decision of the appellate court, not from the date the
under ART. 334. judgment of the trial court was promulgated.
4. Where the penalty prescribed by law is Arresto
Mayor but then, the offender is entitled to a PERIOD OF PREVENTIVE IMPRISONMENT
privileged mitigating circumstance and DEDUCTED FROM TERM OF IMPRISONMENT
lowering the prescribed penalty by one (A29, RPC)
degree, the penalty one degree lower is
Destierro. (After reducing the penalty by 1 or Instances When Accused Undergoes Preventive
more degrees, destierro is the proper penalty. Suspension

Death Penalty shall not be imposed in the 1. when the offense charged is
following instances: nonbailable; or
2. even if bailable he cannot furnish the
1. when the guilty person is below 18 years of required bail.
age at the time of the commission of the
crime. NOTES:
2. is more than 70 years of age. a. Offenders or accused who have undergone
3. when upon appeal or automatic review of the preventive imprisonment shall be credited in the
case by the Supreme Court, the required service of their sentence consisting of deprivation
majority vote is not obtained for the imposition of liberty, with the full time during which they
of he death penalty, in which cases the have undergone preventive imprisonment IF the
penalty shall be reclusion perpetua, detention prisoner agrees voluntarily in writing to
abide by the same disciplinary rules imposed upon
Situations in which the execution of death convicted prisoners.
penalty be suspended:
b. If the detention prisoner does not agree to abide
1. if convict is pregnant, or within 1 year after by the same disciplinary rules imposed upon
her delivery convicted prisoners, he shall be credited in the
2. convicts become insane or an imbecile after service of his sentence with four-fifths (4/5) of
conviction the time during which he has undergone
3. court orders suspension by reason of: preventive imprisonment. (As amended by
Republic Act No. 6127, June 17, 1970).
a. doubt as to the identity of the convict
b. there is a request for executive clemency c. Offenders not entitled to be credited with the full
time or 4/5 of the time of their preventive
4. President grants reprieve. imprisonment:
1. When they are recidivists, or have been
convicted previously twice or more times of
RULES FOR THE COMPUTATION OF PENALTIES any crime;
(A28, RPC):
1. WHEN THE OFFENDER IS IN PRISON – the Habitual delinquents are not entitled to credit
duration of temporary penalties of time under preventive imprisonment since
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they are necessarily recidivists or have been 2. the deprivation of the right to vote in any
convicted previously twice or more times of election for any popular elective office or to be
any crime. elected to such office.
3. the disqualification for the offices or public
2. When upon being summoned for the execution employments and for the exercise of any of
of their sentence they have failed to surrender the rights mentioned.
voluntarily. 4. the loss of all rights to retirement pay or other
pension for any office formerly held.
d. In case of youthful offender who has been
proceeded against under the Child and Youth NOTES:
Welfare Code, he shall be credited in the service of  In case of temporary disqualification, the
his sentence with the full time of his actual disqualification in 2 and 3 (not in 1 and 4)
detention, regardless if he agreed to abide by the shall last during the term of the sentence and
same disciplinary rules of the institution or not. is removed after the service of the same.
 In absolute disqualification, all these
e. Duration of Reclusion Perpetua is to be computed effects last during the lifetime of the convict
at 30 years, thus even if the accused is sentenced and even after the service of the sentence.
to life imprisonment, he is entitled to the full time  A plebiscite is not mentioned or contemplated
or 4/5 of the time of preventive suspension. in number 2, hence, the offender may vote in
that exercise, subject to the provisions of
f. Credit is given in the service of sentences pertinent election laws at the time.
consisting of deprivation of liberty, whether
perpetual or temporary. Thus, persons who had EFFECTS OF THE PENALTIES OF PERPETUAL OR
undergone preventive imprisonment but the TEMPORARY SPECIAL DISQUALIFICATION (Arts
offense is punishable by a fine only would not be 31 and 32):
given credit. 1. For public office, profession or calling
a. the deprivation of the office, employment,
g. Whenever an accused has undergone preventive profession, or calling affected;
imprisonment for a period equal to or more than b. the disqualification for holding similar offices
the possible maximum imprisonment of the offense or employments either perpetually or during
charged to which he may be sentenced and his the term of the sentence according to the
case is not yet terminated, he shall be released extent of such disqualification.
immediately without prejudice to the continuation
of the trial thereof or the proceeding on appeal, if 2. For the exercise of the right of suffrage
the same is under review. a. Deprivation of the right to vote in any popular
election for any public office or to be elected
h. In case the maximum penalty to which the accused to such office perpetually or during the term of
may be sentenced is destierro (deprivation of the sentence;
liberty), he shall be released after thirty (30) days b. Cannot hold any public office during the period
of preventive imprisonment. (As amended by of disqualification.
Republic Act No. 6127, and further amended by
E.O. No. 214, prom. July 10, 1987.) This is true EFFECTS OF THE PENALTIES OF SUSPENSION
although destierro has the duration of 6 months FROM ANY PUBLIC OFFICE, PROFESSION OR
and 1 day to 6 years because the accused CALLING, OR THE RIGHT OF SUFFRAGE (Article
sentenced to such penalty does not serve it in 33, RPC)
prison. 1. Disqualification from holding such
office or exercising such profession or
calling or right of suffrage during the
term of the sentence.
2. The person suspended from holding
SECTION 2 public office shall not hold another
Effects of the penalties according to their having similar functions during the
respective nature period of his suspension.

EFFECTS OF THE PENALTIES OF PERPETUAL OR CIVIL INTERDICTION (A34, RPC)

TEMPORARY ABSOLUTE DISQUALIFICATION
(Article 30, RPC) CIVIL INTERDICTION – deprivation from the offender
during the time of his sentence of the rights of parental
1. the deprivation of the public offices and authority, or guardianship, either as to the person or
employments which the offender may have property of any ward, of marital authority, of the right
held even if conferred by popular election. to manage his property and of the right to dispose of
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such property by any act or any conveyance inter keep the peace or for good behavior is imposed as a
vivos. penalty in threats.

Effects of Civil Interdiction PARDON; ITS EFFECT (Article 36, RPC)

Deprivation of the following rights:
1. parental authority 1. Shall not work the restoration
2. guardianship over the person or property of the of the right to hold public office, or the right of
ward suffrage, UNLESS such rights be expressly restored
3. marital authority by the terms of the pardon.
4. right to manage property and to dispose of the 2. Shall in no case exempt the
same by acts inter vivos. culprit from the payment of the civil indemnity
imposed upon him by the sentence.
Note: He can dispose of such property by will or
donation mortis causa. Who Grants Pardon

Civil Interdiction is Accessory to the Following The President of the Republic of the Philippines.
Principal Penalties
Limitations to President‟s Power to Pardon
1. If death penalty is commuted to life 1. Can be exercised only after final
imprisonment; judgment.
2. Reclusion perpetua; 2. Does not extend to cases of
3. Reclusion temporal. impeachment.
3. Does not extinguish civil liability –
EFFECTS OF BOND TO KEEP THE PEACE (Article only criminal liability
35, RPC). - It shall be the duty of any person
sentenced to give bond to keep the peace, to present Effects of Pardon to Accessory Penalties
two sufficient sureties who shall undertake that such
person will not commit the offense sought to be GENERAL RULE: Pardon in general terms does not
prevented, and that in case such offense be committed include accessory penalties.
they will pay the amount determined by the court in its
judgment, or otherwise to deposit such amount in the EXCEPTIONS:
office of the clerk of the court to guarantee said a. If the absolute pardon is granted after the term of
undertaking. imprisonment has expired, it removes all that is left
of the consequences of conviction. However, if the
The court shall determine, according to its discretion, penalty is life imprisonment and after the service if
the period of duration of the bond. (Read also Art. 284) 30 years, a pardon is granted, the pardon does not
remove the accessory penalty of absolute
Should the person sentenced fail to give the bond as perpetual disqualification.
required he shall be detained for a period which shall in b. If the facts and circumstances of the case show
no case exceed 6 months, if he shall have prosecuted that the purpose of the President is precisely to
for a grave or less grave felony, and shall not exceed restore the rights i.e. granting absolute pardon
30 days, if for a light felony. after election to a post but before the date fixed
by law for assuming office to enable him to
Bond to keep peace Bond for good assume the position in deference to the popular
behavior will.
A principal penalty, not an This penalty is not found
accessory penalty. in article 25. Pardon by the Pardon by the
No particular felony where This is a penalty particular Chief Offended
this is prescribed. to article 284- grave or Executive Party (Art 23)
light threats. (Art 36)
The consequence of Failure to put up a bond Crime covered Any crime, Crimes against
failure to put up this bond results in destierro. unless otherwise chastity under
is imprisonment for 6 provided by or RPC only (also
months or 30 days subject to in rape)
depending on whether the conditions in the
felony committed is grave Constitution or
or less grave felony or the laws.
light. Extinguishment Extinguishes Does not
of Criminal criminal liability extinguish
NOTE: Bond to keep the peace is different from bail Liability criminal liability
bond which is posted for the provisional release of a although it may
person arrested for or accused of a crime. Bond to constitute a bar
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to the It is applicable ―in case the property of the offender
prosecution of should not be sufficient for the payment of all his
the offender pecuniary liabilities. Hence, if the offender has
Effect on civil Cannot affect Offended party sufficient or no property, it is not applicable.
liability the civil liability can waive the
ex delicto of the civil liability SUBSIDIARY PENALTY (A39, RPC) - is a subsidiary
offender personal liability to be suffered by the convict who has
When granted Only after Only before the no property with which to meet the fine at the rate of
conviction by institution of one day for each 8 pesos, subject to the rules provided
final judgment criminal action in Article 39.
To whom Any or all of the In adultery and
granted accused concubinage, When Subsidiary Penalty is Proper
must include a. It is proper when the convict is insolvent and:
both offenders 1. when there is a principal penalty of
Whether it can May be absolute Cannot validly imprisonment or any other principal penalty
be conditional or conditional be made subject and carries with it a fine; and
to condition 2. when the penalty is only a fine.

COST; WHAT ARE INCLUDED (Article 37, RPC) Notes:

a. When the penalty prescribed is imprisonment, it is
Costs shall include: the penalty actually imposed by the court, not the
1. Fees; and penalty provided for by the RPC, which should be
2. indemnities in the course of the judicial considered in determining whether or not
proceedings. subsidiary penalty should be imposed.
b. Subsidiary imprisonment is not an accessory
Whether they be fixed or unalterable amounts penalty. Accessory penalties are deemed imposed
previously determined by law or regulations in force, or even when not mentioned, while subsidiary
amounts not subject to schedule. imprisonment must be expressly imposed.

NOTES: Rules As to Subsidiary Penalty

a. Costs (expenses of the litigation) are chargeable to 1. If the principal penalty imposed be prision
the accused in case f conviction. In case of correccional or arresto and fine, he shall remain
acquittal, the costs are de officio, each party under confinement until his fine referred in the
bearing his own expense. preceding paragraph is satisfied, but his subsidiary
b. No costs are allowed against the Republic of the imprisonment shall not exceed one-third of the
Philippines, until law provides to the contrary. term of the sentence, and in no case shall it
c. The payment of costs is fully discretionary on the continue for more than one year, and no fraction
court. or part of a day shall be counted against the
prisoner.
2. When the principal penalty imposed be only a fine,
PECUNIARY LIABILITIES, ORDER OF PAYMENT the subsidiary imprisonment shall not exceed six
(A38, RPC) months, if the culprit shall have been prosecuted
for a grave or less grave felony, and shall not
In case the property of the offender should not be exceed fifteen days, if for a light felony.
sufficient for the payment of all his pecuniary liabilities, 3. When the principal penalty imposed is higher than
the same shall be met in the following order: prision correccional no subsidiary imprisonment
shall be imposed upon the culprit.
1. The reparation of the damage caused. 4. If the principal penalty imposed is not to be
executed by confinement in a penal institution, but
2. Indemnification of consequential damages. such penalty is of fixed duration, the convict, during
the period of time established in the preceding rules,
3. The fine. shall continue to suffer the same deprivation as those
of which the principal penalty consists.
4. The costs of the proceedings. 5. The subsidiary personal liability which the convict
may have suffered by reason of his insolvency shall
NOTES: not relieve him from the fine in case his financial
 1 and 2 are payable to the offended party. circumstances should improve. (As amended by
 3 and 4 are payable to the state. Republic Act No. 5465, April 21, 1969.)
 Order of payment is mandatory.
Penalty Duration of stay
When is it applicable? Prision correccional or Remain under
arresto and fine confinement until his fine
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is satisfied; but it shall not The death penalty, when it is not executed by reason
exceed 1/3 of the term of of commutation or pardon shall carry with it that of:
sentence, and not more a. perpetual absolute disqualification; and
than 1 year. b. civil interdiction during thirty years following the
Fine a. grave or less grave date of sentence, UNLESS such accessory penalties
felony: not more than 6 have been expressly remitted in the pardon.
months.
b. Light: not more than ARTICLE 41. RECLUSION PERPETUA AND
15 days RECLUSION TEMPORAL, THEIR ACCESSORY
Higher than Prision No subsidiary PENALTIES
Correccional imprisonment
Not confinement in a Follow above rules a. civil interdiction for life or during the period of the
penal institution, but sentence as the case may be; and
penalty is of fixed b. perpetual absolute disqualification which the
duration offender shall suffer even though pardoned as to
the principal penalty, UNLESS the same shall have
NOTES: been expressly remitted in the pardon.
 FINE: Subsidiary penalty applies only for the
non-payment of the fine, criminal aspect; and not ARTICLE 42. PRISION MAYOR, ITS ACCESSORY
the civil aspect. The latter is what article 38 PENALTIES
contemplates.
 PUBLIC CENSURE AND FINE: If the a. temporary absolute disqualification; and
penalty is public censure and fine even if the public b. perpetual special disqualification from the right of
censure is a light penalty, the convict cannot be suffrage which the offender shall suffer although
required to pay the fine for subsidiary penalty for pardoned as to the principal penalty, UNLESS the
the non payment of the fine because public same shall have been expressly remitted in the
censure is a penalty that has no fixed duration. pardon.
 DESTIERRO AND FINE: The convict can be
required to undergo the subsidiary penalty, as ARTICLE 43. PRISION CORRECCIONAL, ITS
destierro, though not imprisonment, is still a ACCESSORY PENALTIES
penalty to be served. Hence, subsidiary penalty
applies. a. suspension from public office, from the right to
 TOTALITY OF PENALTY UNDER THE 3- follow a profession or calling; and
FOLD RULE: Do not consider the totality of the b. perpetual special disqualification from the right of
imprisonment that the convict is sentenced to but suffrage, if the duration of said imprisonment shall
consider the totality or the duration of the exceed eighteen months. The offender shall suffer
imprisonment that the convict will be required to the disqualification provided in this article although
serve under the 3-fold rule. If the totality of the pardoned as to the principal penalty, UNLESS the
imprisonment under this rule does not exceed 6 same shall have been expressly remitted in the
years, then even if the totality of the sentences pardon.
without applying the 3-fold rule will go beyond 6
years, the convict shall be required to undergo ARTICLE 44. ARRESTO, ITS ACCESSORY
subsidiary penalty if he could not pay the fine. PENALTIES

Where No Subsidiary Imprisonment is Imposed a. suspension of the right to hold office and the right
of suffrage during the term of the sentence.
1. Penalty imposed is higher than prision
correccional. NOTES:
2. Non-payment of reparation, indemnification,  No accessory penalty for destierro.
and costs. It is only for fines.  Absolute pardon for any crime for which 1 year
3. Non-payment of costs. imprisonment or more was meted out restores the
4. Penalty imposed is a fine and another penalty prisoner to his political rights.
without fixed duration like censure.  Where the penalty is less than 1 year,
disqualification does not attach, EXCEPT when the
crime committed is one against property. The
SECTION 3 nature of the crime is material. Thus, in the latter
Penalties in which other accessory penalties are case, the person convicted of theft for less than 10
inherent months cannot vote unless he is pardoned.
 If the penalty imposed is 1 year imprisonment
ARTICLE 40. DEATH, ITS ACCESSORY PENALTIES or more, the nature of the crime is immaterial.
 The accessory penalties are understood to be
always imposed upon the offender by the mere
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fact that the law fixes a certain penalty for the offense are accessory penalties. Are they not
crime. deemed imposed?)
 The accessory penalties do not affect the  The government cannot appeal the
jurisdiction of the court in which the information is modification of the sentence if the defendant did
filed because they do not modify or alter the not appeal. But if the defendant appeals, it
nature of the penalty provided by law. What removes all bars to the review and correction of
determines jurisdiction in criminal cases is the the penalty even is an increase thereof be the
principal penalty. result.

Reclusion Perpetua Life Imprisonment When Art 45 Cannot Apply

Specific duration of 20 No definite term or 1. The instruments belong to innocent 3rd parties
years and 1 day to 40 accessory penalties 2. Such properties have not been placed under the
years and accessory jurisdiction of the court
penalties 3. When it is legally or physically impossible.
Imposable on felonies Imposable on crimes
punished by RPC punished by special laws
CHAPTER FOUR
Application of Penalties
ARTICLE 45. CONFISCATION AND FORFEITURE
OF THE PROCEEDS OR INSTRUMENTS OF THE SECTION 1
CRIME Rules for the application of penalties to the
persons criminally liable and for the graduation
1. Every penalty imposed for the commission of a of the same
felony shall carry with it the forfeiture of the
proceeds of the crime and the instruments or tools ARTICLE 46. PENALTY TO BE IMPOSED UPON
with which it was committed. PRINCIPALS IN GENERAL
2. Such proceeds and instruments or tools shall be
confiscated and forfeited in favor of the General Rule: The penalty prescribed by law for the
Government, UNLESS they be the property of a commission of a felony shall be imposed upon the
third person not liable for the offense, but those principals in the commission of such felony. (Read
articles which are not subject of lawful commerce also Arts. 50 -51)
(whether it belongs to the accused or 3rd person)
shall be destroyed. Whenever the law prescribes a penalty for a felony in
general terms, it shall be understood as applicable to
NOTES: the consummated felony.
 There cannot be forfeiture or confiscation
UNLESS there‘s a criminal case filed, tried and Exception: When the law fixes a penalty for the
accused is convicted. frustrated or attempted felony. Whenever it is believed
 The court cannot order the forfeiture of the that the penalty lower by 1 or 2 degrees corresponding
goods the owner of which is not indicted although to said acts of execution is not proportionate to the
there is sufficient ground to hold him guilty of the wrong done, the law fixes a distinct penalty for the
acts for which the accused has been convicted. principal in the frustrated or attempted felony.
 Instruments of the crime belonging to
innocent 3rd persons may be recovered through The Graduation of Penalties Refer to:
intervention. a. By Degree
 Confiscation can be ordered only if the 1. Stages of Execution (attempted, frustrated,
property is submitted in evidence or placed at the consummated)
disposal of the court. 2. Degree of the criminal participation of the
 When the order of forfeiture has already offender (principal, accomplice, accessory)
become final, the articles which were forfeited can
not be returned, even in case of acquittal. b. By Period
 Confiscation and forfeiture are additional 1. Minimum, medium, maximum – refers to the
penalties. When the penalty imposed did not proper period of the penalty which should be
include confiscation, the subsequent order of imposed when aggravating or mitigating
confiscation would be an additional penalty, circumstances attend to the commission of the
amounting to an increase of the penalty already crime.
imposed, thereby placing the accused in double
jeopardy. In case the accused appeals, confiscation ARTICLE 47. IN WHAT CASES THE DEATH
not ordered by the trial court may be ordered by PENALTY SHALL NOT BE IMPOSED
the appellate court. (Question: Forfeiture and
confiscation of instruments and proceeds of the
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a. Under Age - guilty person is below eighteen (18) the duty of the judicial officers to respect and
years of age at the time of the commission of the apply the law regardless of their private opinion.
crime.  The trial court must require the prosecution to
present evidence, despite plea of guilty when the
REASON: Minority is always a mitigating crime charged is punished with death.
circumstance.  REPUBLIC ACT NO. 9346 – An Act
Prohibiting the Imposition of Death Penalty
b. Over Age - guilty person is more than seventy in the Philippines
(70) years of age (at the time RTC sentenced him)
In lieu of the death penalty, the following shall be
c. No court Majority - when upon appeal or automatic imposed:
review of the case by the Supreme Court, the Reclusion perpetua – Revised Penal Code
required majority vote is not obtained for the Life imprisonment – Special Laws
imposition of the death penalty, in which cases the
penalty shall be reclusion perpetua. Not eligible for parole under the Indeterminate
Sentence Law: Persons convicted of offenses
Automatic Review Of Death Penalty Cases punished by reclusion perpetua, or whose sentence
will be reduced to reclusion perpetua.
In all cases where the death penalty is imposed by the
trial court, the records shall be forwarded to the ARTICLE 48. PENALTY FOR COMPLEX CRIMES
Supreme Court for automatic review and judgment by
the court en banc (at least 8 justices must concur – RA COMPLEX CRIME - When a single act constitutes 2 or
296), within twenty (20) days but not earlier than more grave or less grave felonies, or when an offense
fifteen (15) days after the promulgation of the is a necessary means for committing the other, the
judgment or notice of denial of any motion for new trial penalty for the most serious crime shall be imposed,
or reconsideration. The transcript shall also be the same to be applied in its maximum period. (As
forwarded within ten (10) days after the filing thereof amended by Act No. 4000.)
by the stenographic reporter. (As amended by Section
22, Republic Act No. 7659.) Although there are 2 or more crimes actually
committed, they constitute only 1 crime in the eyes of
The purpose of the automatic review is to protect the the law as well as in the conscience of the offender
accused to the end that justice and legality of death who has only 1 criminal intent. Hence, there is only 1
penalty is clearly and conclusively determined. penalty imposed for the commission of complex crime.

Justification for the Death Penalty: Social defense Philosophy behind:

and Exemplarity. Not considered cruel and unusual The treatment of plural crimes as one is to be
because it does not involve torture or lingering death. lenient to the offender, who, instead of being made to
suffer distinct penalty only, although it is the penalty
Crimes Punishable by Death Under Death Penalty Law for the most serious one and in the maximum period.
(RA 7659, December 31, 1993) It is in consonance with the doctrine of pro reo.
1. Treason
2. Qualified Piracy Kinds of Complex Crimes
3. Qualified Bribery 1. Compound Crime - a single
4. Parricide act constituting 2 or more grave or less grave
5. Murder felonies. No regard for the gravity of crimes, as
6. Infanticide long as there is only 1 act.
7. Kidnapping and Serious Illegal Detention
8. Robbery – with Homicide, Rape, Intentional Requisites:
Mutilation, or Arson a. that only a single act is performed by the
9. Rape – with the use of a deadly weapon, or by 2 offender;
or more persons; with Homicide; where the victim b. that the single act produces:
became insane i. 2 or more grave felonies
10. Qualified Rape ii. 1 or more grave or 1 or more less grave
11. Destructive Arson felonies
12. Plunder iii. 2 or more less grave felonies.
13. Violation of Certain Provisions of Dangerous Drugs
Act No Single Act in the Following Cases
14. Carnapping a. Several shots from Thomson sub-machine gun
causing several deaths, although caused by a
NOTES: single act of pressing the trigger, are
 Death penalty shall be imposed in all cases in considered several acts. It is not the act of
which it must be imposed under existing law. It is pressing the trigger which should be
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considered as producing the several felonies,
but the number of bullets which actually NOTES:
produced them.  Kidnapping the victim to murder him in a
b. When 2 persons are killed one after the other, secluded place – ransom was not paid so
by different acts, although these 2 killings victim was killed. Kidnapping was a necessary
were the result of a single criminal impulse. means to commit murder. Where the person
The different acts must be considered as kidnapped is killed in the course of the
distinct crimes. detention, regardless of whether the killing
c. When the acts are wholly different, not only in was purposely sought or was merely an
themselves, but also because they are directed afterthought, the kidnapping and murder or
against 2 different persons, as when one fires homicide can no longer be complexed under
his gun twice in succession, killing one and Art 48, nor be treated as separate crimes but
injuring another. shall be punished as a special complex crime
d. Light felonies (like slight physical injuries) under the last paragraph of Art 267, as
produced by the same act should be treated amended by RA 7659. But where the victim
and punished as separate offenses or may be was taken from his home but it was solely for
absorbed by a grave felony (as they are the purpose of killing him and not for detaining
necessary consequence thereof). him illegally or for the purpose of ransom, the
crime is simple murder.
NOTES:  Necessary means does not mean indispensable
 Rape with homicide is a special complex crime means. Indispensable would mean it is an
not covered by Art 48. element of the crime. The crime can be
 When in obedience to an order several committed by another means. The means
accused simultaneously shot many persons, actually employed (another crime) was merely
without evidence how many each killed, there to facilitate and insure the consummation of
is only a single offense, there being a single the crime.
criminal impulse. This is a ruling in Pp vs  When the definition of a felony one offense is
Lawas, June 30, 1955. This is applicable only if a means to commit the other, there is no
there is no evidence at all to show the number complex crime.
of persons killed by each several defendants.  Subsequent acts of intercourse, after forcible
 The ―single criminal impulse,‖ ―same motive‖ abduction with rape, are separate acts of rape.
or the ―single purpose‖ theory has no legal  Not complex crime when trespass to dwelling
basis, for Art 48 speaks of ―a single act.‖ is a direct means to commit a grave offense.
However, the theory is acceptable when it is Trespass will be considered as aggravating (
not certain who among the accused killed or unlawful entry or breaking part of the
injured each of the several victims. dwelling)
 When a complex crime is charged and one  No complex crime, when one offense is
offense is not proven, the accused can be committed to conceal the other.
convicted of the other.  Where the offender had in his possession the
 There is no complex crime of arson with funds which he misappropriated, falsification
homicide under Art 48, Art 320 of the RPC, as of a public or official document involving said
amended by RA 7659, having provided one funds is a separate offense. The falsification
penalty therefor. was made to conceal the malversation. But
 Art 48 is applicable to crimes through when the offender had to falsify a public
negligence. document to obtain possession of the funds
 When 2 crimes produced by a single act are which he misappropriated, the falsification is a
respectively within the exclusive jurisdiction of necessary means to commit the malversation.
2 courts of different jurisdiction, the court of  There is no complex crime of rebellion – with
higher jurisdiction shall try the complex crime. murder, arson, robbery, or other common
Since both crimes were the result of a single crimes. They are mere ingredients of the crime
act, the information cannot be split into 2. of rebellion – absorbed already. But one who,
for some independent or personal motives,
2. Complex Crime Proper - commits murder or other common offenses in
an offense is a necessary means for committing addition to rebellion, may be prosecuted for
another. and convicted of such common offenses.
 Art 48 is intended to favor the accused.
Requisites:  Complex crime proper may be committed by
a. at least 2 offenses are committed two persons, as in seduction through
b. 1 or some of the offenses must be necessary usurpation of official functions.
to commit the other  But when 1 of the offenses, as a means to
c. both or all the offenses must be punishable commit the other, was committed by one of
under the same statute (RPC). the accused through reckless imprudence, that
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accused who committed the offense through 1. Formal or Ideal Plurality – only one
reckless imprudence is liable for his act only. criminal liability.
 When the homicide, physical injuries, and the
burning of a house are the result of one single It is further divided into 3 groups where a person
act of negligence, there is only one penalty, committing multiple crimes is punished with one
but there are three civil liabilities. penalty in the following cases.
 When 2 felonies constituting a complex crime a. When the offender commits any of the
are punishable by imprisonment and fine, complex crimes defined in Art 48 of the RPC.
respectively, only the penalty of imprisonment b. When the law specifically fixes single penalty
should be imposed. for 2 or more offenses committed.
REASON: Fine is not included in the in the list c. When the offender commits continued crimes.
of penalties in the order of severity and it is
the last in the graduated scales in Art 71. 2. Real or Material Plurality – there are
 When a single act constitutes 2 grave or less different crimes in law as well as in the
grave or one grave and one less grave, and conscience of the offender. In such cases, the
the penalty for one is imprisonment while for offender shall be punished for each and every
the other is fine, the severity of the penalty for offense that he committed
the more serious crime should not be judged
by the classification of each of the penalties CONTINUED CRIME - a single crime consisting of a
involved, but by the nature of the penalties. series of overt acts arising from a single criminal
 In the order of severity of penalties, arresto resolution or intent not susceptible of division. Although
mayor and arresto menor are considered more there is a series of acts, there is one crime committed.
severe than destierro and arresto menor is Hence, only one penalty shall be imposed.
higher in degree
 Art 48 applies only to cases where the Code Examples of Continued Crime
does not provide for a definite specific penalty 1. A collector of a commercial firm misappropriates
for a complex crime. for his personal use several amounts collected by
 One information should be filed when a him from several persons. There is only one crime
complex crime is commited. because the different and successive
appropriations are but different moments during
There is NO COMPLEX CRIME in the following: which one criminal resolution arises.
2. Juan steals 2 books belonging to 2 different
1. In case of continuing crime persons. He commits only one crime because there
2. When one offense is committed to conceal the is unity of thought in the criminal purpose of the
other offender.
3. When the other crime is an indispensable part 3. Different acts of sending letters of demand for
or an element of the other offenses as defined money with threats to kill and burn the house of
4. Where one of the offenses is penalized by the offended party constitutes only one offense of
special law grave threats born of a single criminal impulse to
5. When the law provides for a single penalty for attain a definite objective. Thus, the series of acts
special complex crime born of a single criminal impulse may be
perpetrated during a long period of time.
a. Robbery with Homicide
b. Robbery with Rape Test: There must be singularity of act, singularity of
c. Rape with Homicide singular impulse is not written into the law. So long as
d. Kidnapping with serious physical injuries the act or acts complained of resulted in a single
e. Kidnapping with Homicide or murder criminal impulse, it is usually held to constitute a single
offense. The test is not whether one of the two
Composite Crime - are special complex crimes offenses is an essential element of the other.
composed of two felonies, punishable under a
separate article in the RPC. In substance, it is Continued crime is NOT a complex crime
made up of more than 1 crime but in the eyes of
the law there is only a single indivisible crime. A continued crime is not a complex crime because the
offender in continued crime does not perform a single
PLURALITY OF CRIMES – consist in the successive act but a series of acts, and one offense is not a
execution by the same individual of different criminal necessary means for committing the other.
acts upon any of which no conviction has yet been
declared. Not being complex crime, the penalty for continued
crime is not to be imposed in the maximum period
Kinds of Plurality of Crimes
No actual provision in the RPC or any penal law
punishing continued crime – it is applied in connection
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with 2 or more crimes committed with a single 1. Art 49 has reference to Art 4 par 1.
intention. 2. Art 49 has no application to cases where a more
serious consequence not intended by the offender
Continued Crime is Different From a Transitory befalls the same person. Thus, it is not applicable
Crime to cases involving aberratio ictus and praeter
intentionem.
A continued crime must be understood in the light of 3. It is applicable only in cases of error in personae or
substantive law, while transitory/moving crime, in the mistake in identity AND the penalty for the crime
light of procedural law and is only intended as a factor committed is different from that which is intended
in determining the proper venue or jurisdiction for that to be committed. Since only one crime is produced
matter of the criminal action pursuant to Section 14, by the act of the offender, there could be no
Rule 110 of the Rules of Court. This is so because ―a complex crime.
person charged with a transitory offense may be tried 4. In pars 1 and 2, the lower penalty in its maximum
in any jurisdiction where the offense is in part period is always imposed.
committed or where any of the essential ingredients 5. In par 3, the penalty for the attempted or
thereof took place. The singleness of the crime, frustrated crime shall be imposed in its maximum
committed by executing 2 or more acts, is not period. This rule no 3 is not necessary and may
considered. well be covered by Art 48, in view of the fact that
the same act also constitutes an attempt or a
Real/Material Plurality Continued Crime frustration of another crime.
There is a series of acts Same
performed by the Art 49 Art 48
offender. Lesser penalty is to be Penalty for the more or
Each act performed by the Different acts constitute imposed to be applied in most serious crime shall
offender constitutes a only one crime because all the maximum period. be imposed, the same to
separate crime because of the acts performed be applied in its maximum
each act is generated by a arise from one criminal period.
criminal impulse. resolution.
Article 50. Penalty to be imposed upon principals
Plurality of Crime Recidivism of a frustrated crime. - The penalty next lower in
No conviction of any of There must be conviction degree than that prescribed by law for the
the crimes committed. by final judgment of the consummated felony shall be imposed upon the
first or prior offense. principal in a frustrated felony.

ARTICLE 49. PENALTY TO BE IMPOSED UPON Article 51. Penalty to be imposed upon principals
THE PRINCIPALS WHEN THE CRIME of attempted crimes. - The penalty lower by two
COMMITTED IS DIFFERENT FROM THAT degrees than that prescribed by law for the
INTENDED, RULES- consummated felony shall be imposed upon the
principals in an attempt to commit a felony.
1. If the penalty prescribed for the felony committed
be higher than that corresponding to the offense Article 52. Penalty to be imposed upon
which the accused intended to commit, the penalty accomplices in a consummated crime. - The
corresponding to the latter shall be imposed in its penalty next lower in degree than that prescribed by
maximum period. law for the consummated felony shall be imposed upon
the accomplices in the commission of a consummated
2. If the penalty prescribed for the felony committed felony.
be lower than that corresponding to the one which
the accused intended to commit, the penalty for Article 53. Penalty to be imposed upon
the former shall be imposed in its maximum accessories to the commission of a
period. consummated felony. - The penalty lower by two
degrees than that prescribed by law for the
3. The rule established by the next preceding consummated felony shall be imposed upon the
paragraph shall not be applicable if the acts accessories to the commission of a consummated
committed by the guilty person shall also felony.
constitute an attempt or frustration of another
crime, if the law prescribes a higher penalty for Article 54. Penalty to be imposed upon
either of the latter offenses, in which case the accomplices in a frustrated crime. - The penalty
penalty provided for the attempted or the next lower in degree than that prescribed by law for
frustrated crime shall be imposed in its maximum the frustrated felony shall be imposed upon the
period. (Read also Arts. 61, 62, and 65) accessories in the commission of a frustrated felony.

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Article 55. Penalty to be imposed upon b. Illegal Possession and use of a false treasury
accessories of a frustrated crime. - The penalty or bank note. (Art 168)
lower by two degrees than that prescribed by law for c. Using a falsified document. (Art 173, Par 3)
the frustrated felony shall be imposed upon the d. Using a falsified dispatch. (Art 173, par 2)
accessories to the commission of a frustrated felony.
NOTES:
Article 56. Penalty to be imposed upon
accomplices in an attempted crime. - The penalty 1. Bases for the determination of the extent of
next lower in degree than that prescribed by law for an the penalty to be imposed:
attempt to commit a felony shall be imposed upon the a. Stages of Execution
accomplices in an attempt to commit the felony. b. Participation of the Person Liable
c. Presence of Aggravating or Mitigating
Article 57. Penalty to be imposed upon Circumstances
accessories of an attempted crime. - The penalty
lower by two degrees than that prescribed by law for 2. Degree – one entire penalty or one unit of the
the attempt shall be imposed upon the accessories to penalties enumerated in the graduated scales
the attempt to commit a felony. provided for under Art 71.

DIAGRAM for the Application of Arts 50 - 57 3. Period – one of the 3 equal portions, called
minimum, medium, and maximum, of a
Consummat Frustrate Attempte divisible penalty. However, a period of a
ed d d divisible penalty when prescribed by the RPC
Principals Penalty 1 degree 2 degrees as a penalty for a felony, is in itself a degree
Imposed by lower lower (e.g Art 140).
law
Accomplic 1 degree 2 degrees 3 degrees 4. The rules in Arts 53, 55 and 57 do not apply if
es lower lower lower the felony is light because accessories are not
Accessorie 2 degrees 3 degrees 4 degrees liable for the same
s lower lower lower
Degree Period
Exceptions To The Rules Established In Articles Refers to the penalty Refers to the duration of
50 To 57 imposable for a felony the penalty consisting of
committed considering the the maximum, medium
When the law expressly prescribes the penalty stages of execution and and minimum, after
provided for a frustrated or attempted felony, or to be the degree of participation considering the presence
imposed upon accomplices or accessories. (Art 60, of the offender. or absence of aggravating
RPC) e.g. Special penalty for attempted or frustrated circumstances
robbery with homicide. (Art 297, RPC) May refer to both divisible Refers only to divisible
and indivisible penalties. penalties.
2 Cases Where the Accomplice is Punished
with the Same Penalty Imposed upon ARTICLE 58. ADDITIONAL PENALTY TO BE
Principal IMPOSED UPON CERTAIN ACCESSORIES
a. The ascendants, guardians, curators, teachers
and any person who by abuse of authority or NOTES:
confidential relationship, shall cooperate as 1. This Art applies only if the accessories falling within
accomplices in the crimes of rape, acts of the terms of paragraph 3 of article 19 (public
lasciviousness, seduction, corruption of minors, officers) who should act with abuse of their public
white slave trade or abduction. (Art 346) functions. Thus, it is further limited to those whose
b. One who furnished the place for the participation in the crime is characterized by
perpetration of slight illegal detention. (Art misuse of public office or authority.
268) 2. The Art is limited only to grave or less grave
felonies since it is not possible to have accessories
Accessory Punished as Principal liable for light felonies.

Knowingly concealing certain evil practices. (art Additional Penalties for Public Officers who are
142) Accessories:
a. Absolute Perpetual Disqualification - if the principal
Cases Where Penalty Imposed on offender shall be guilty of a grave felony.
Accessories are One Degree Lower Instead b. Absolute Temporary Disqualification - if the
of Two Degrees Lower principal shall be guilty of a less grave felony.
a. Knowingly using counterfeited seal or forged
signature or stamp of the President. (Art 162) ARTICLE 59. PENALTY FOR IMPOSSIBLE CRIME
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immediately following the lesser of the penalties
The penalty is arresto mayor or a fine from 200 to 500 prescribed in the respective graduated scale.
pesos. e.g. One divisible penalty to be imposed to its full
extent is Reclusion Temporal, the penalty immediately
Basis for the Imposition of Proper Penalty following such divisible penalty is prision mayor. 2
1. Social danger; and divisible penalties to be imposed to their full extent are
2. Degree of criminality shown by the offender prision correccional to prision mayor, the penalty
immediately following the lesser of the penalties is
NOTES: arresto mayor.
1. Art 59 is limited to grave or less grave felonies.
2. However, considering Art 4, Art 59 is actually Rule 3. When the penalty is composed of one or
limited to offenses against persons or property. two indivisible penalties and the maximum
period of another divisible penalty - the penalty
ARTICLE 61. RULES FOR GRADUATING next lower in degree shall be composed of the medium
PENALTIES and minimum periods of the proper divisible penalty
and the maximum period of that immediately following
NOTE: The rules provided in this Art should also apply in said respective graduated scale.
in determining the minimum of the indeterminate
penalty under the Indeterminate Sentence Law Two Indivisible Penalties and the Maximum Period of a
(ISLAW). They are also applicable in lowering the Divisible Penalty
penalty by one or two degrees by reason of the e.g. Penalty for murder is Reclusion Temporal in its
presence of privileged mitigating circumstance, or maximum period to Death, Reclusion Perpetua being in
when the penalty is divisible and there are 2 or more between is included in the penalty. Thus, the penalty
mitigating circumstances (generic) and no aggravating consists in 2 indivisible penalties of death and reclusion
circumstance. perpetua and 1 divisible penalty of reclusion temporal
in its maximum. The point of reference is the proper
Graduated Scale in Art 71 divisible penalty which is reclusion temporal. Under the
1. Indivisible Penalties 3rd rule, the penalty next lower is composed of the
a. Death medium and minimum periods of RT and the maximum
b. Reclusion Perpetua of prision mayor.
2. Divisible Penalties (maximum, medium, minimum)
a. Reclusion Temporal One Indivisible Penalty and the Maximum Period of a
b. Prision Mayor Divisible Penalty
c. Prision Correccional e.g. RT in its maximum period RP.
d. Arresto Mayor
e. Destierro Rule 4.
f. Arresto Menor When the penalty is composed of several periods
g. Public Censure (at least 3), corresponding to different divisible
h. Fine penalties - the penalty next lower in degree shall be
composed of the period immediately following the
Rules to be Observed in Lowering the Penalty By minimum prescribed and of the two next following,
1 or 2 Degrees which shall be taken from the penalty prescribed, if
possible; otherwise from the penalty immediately
Rule 1. When the penalty is single and following in the above mentioned respective graduated
indivisible - the penalty next lower in degree shall be scale. In other words, the penalty next lower in degree
that immediately following that indivisible penalty in is the penalty consisting in the 3 periods down in the
the respective graduated scale prescribed in article 71 scale.
of this Code. e.g. The penalty which is composed of several periods
e.g. Reclusion Perpetua, the penalty next lower shall be corresponding to different divisible penalties is PM in its
Reclusion Temporal medium period to RT in its minimum. The period
Rule 2. immediately following the minimum, which is PM in its
When the penalty is composed of two indivisible medium period, is prision mayor in its minimum. The 2
penalties - the penalty next lower in degree shall be periods next following are the maximum and medium
that immediately following the lesser of the penalties periods of PC, the penalty next following in the scale
prescribed in the respective graduated scale. prescribed in Art 71 since it cannot be taken from the
e.g Reclusion Perpetua to Death, the penalty penalty prescribed.
immediately following the lesser of the penalties, which
is reclusion perpetua, is reclusion temporal. Rule 5. When the law prescribes a penalty not
especially provided for in the four preceding
When the penalty is composed of one or more rules - the courts, proceeding by analogy, shall impose
divisible penalties to be imposed to their full corresponding penalties upon those guilty as principals
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extent - the penalty next lower in degree shall be that of the frustrated felony, or of attempt to commit the
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same, and upon accomplices and accessories.(As e.g. Evident premeditation is inherent in robbery and
amended by Com. Act No. 217.) theft.

When the Penalty has Two Periods – the penalty Par 3. Aggravating or mitigating circumstances which
next lower is that consisting of 2 periods down the arise from any of the following shall only serve to
scale. aggravate or mitigate the liability of the principals,
e.g. The penalty next lower than PC in its minimum accomplices and accessories as to whom such
and medium period is Arresto mayor in its medium and circumstances are attendant.
maximum periods.
1. From the moral attributes of the offender
When the Penalty has One Period – the penalty 2. From his private relations with the offended
next lower is the next period down the scale. party
e.g. The penalty immediately inferior to PM in its 3. From any other personal cause
maximum period is PM in its medium period.
Par 4. The following circumstances shall serve to
NOTE: Mitigating and Aggravating Circumstances are aggravate or mitigate the liability of those persons only
Disregarded in the Application of the Rules for who had knowledge of them at the time of the
Graduating Penalties. It is ONLY after the penalty next execution of the act or their cooperation therein:
lower in degree is already determined that the 1. material execution of the act (e.g. with
mitigating and/or aggravating circumstances should be treachery)
considered. 2. means employed to accomplish it (e.g. used of
poison)

SECTION 2 Par 5. Habitual delinquency shall have the following

effects (Additional Penalty for Habitual
Rules For The Application Of Penalties With Delinquency):
Regard To The Mitigating And Aggravating (a) Upon a third conviction the culprit shall be
Circumstances, And Habitual Delinquency sentenced to the penalty provided by law for the
last crime of which he be found guilty and to the
Article 62. RULES REGARDING AGGRAVATING additional penalty of prision correccional in its
AND MITIGATING medium and maximum periods;

Par 1. Aggravating circumstances are NOT to be taken (b) Upon a fourth conviction, the culprit shall be
into account when: sentenced to the penalty provided for the last
1. they themselves constitute a crime specially crime of which he be found guilty and to the
punishable by law additional penalty of prision mayor in its minimum
e.g. by ―means of fire‖ – in arson and medium periods; and

2. they are included by the law in defining a crime (c) Upon a fifth or additional conviction, the culprit
and prescribing the penalty therefor shall be sentenced to the penalty provided for the
e.g. dwelling is not aggravating in robbery with last crime of which he be found guilty and to the
force upon things (Art 299) additional penalty of prision mayor in its maximum
When Maximum of the Penalty shall be period to reclusion temporal in its minimum period.
Imposed Regardless of Mitigating
a. When in the commission of the crime, REASON: If graver punishment for committing the
advantage was taken by the offender of his 2nd offense has proved insufficient to restrain his
public position. proclivities and to amend his life, he is deemed to
b. If the offense was committed by any person have shown a dangerous propensity to crimes.
who belongs to an organized/syndicated crime Hence, he is punished with a severer penalty for
group. committing any of those crimes the 3rd time or
oftener. Moreover, it is to render more effective
ORGANIZED/SYNDICATED CRIME GROUP - a social defense and the reformation of
group of two or more persons collaborating, multirecidivists.
confederating or mutually helping one another
for purposes of gain in the commission of any Total Penalties NOT to Exceed 30 Years
crime.

Par 2. Same rule shall apply with respect to any

aggravating circumstances inherent in the crime to
such a degree that it must be necessity accompany the
commission thereof.
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Notwithstanding the provisions of this article, the total  10 year period to be computed from the time of
of the two penalties to be imposed upon the offender, last release or conviction to the date of conviction
in conformity herewith, shall in no case exceed 30 of subsequent offense (not to the date of
years. The 2 penalties refer to the penalty for the last commission).
crime of which he is found guilty and the additional  Subsequent crime must be committed after
penalty for a habitual delinquent. conviction of the former crime. Cases still pending
are not to be taken into consideration.
HABITUAL DELINQUENT - a person who within a  When the offender has committed several crimes
period of 10 years from the date of his release or last mentioned in the definition of habitual delinquent,
conviction of the crimes of serious or less serious without first convicted of any of them before
physical injuries, robbery, theft, estafa or falsification, committing the others, he is not a habitual
he is found guilty of any of said crimes a third time or delinquent.
oftener. (As amended by Section 23, Republic Act No.  Convictions on the same day or about the same
7659.) time are considered as one only.
 Crimes committed on the same date, although
Requisites of Habitual Delinquency convictions on different dates, are considered only
1. That the offender had been convicted of any of the one.
crimes of serious or less serious physical injuries,  Previous convictions are considered every time a
robbery, theft, estafa or falsification. new offense is committed.
2. That after that conviction or after serving his  Commissions of any of those crimes need not be
sentence, he again committed, and, within 10 consummated. It applies at any stage of the
years from his release or first conviction, he was execution because subjectively, the offender
again convicted of any of the said crimes for the reveals the same degree of depravity or perversity
2nd time. as the one who commits a consummated crime.
3. That after his conviction of, or after serving  Habitual delinquency applies to accomplices and
sentence for the 2nd offense, he again committed, accessories. It applies to all participants because it
and, within 10 years from his last release or last reveals persistence in them of the inclination to
conviction, he was again convicted of any of said wrongdoing and of the perversity of character that
offenses, the 3rd time or oftener. led them to commit the previous crime.
 A crime committed by the offender during minority
Habitual Delinquency Recidivism is not counted because the proceedings as regards
Crimes to be committed Same title that crime are suspended.
are specified  The imposition of the additional penalty for
Within 10 years No time fixed by law habitual delinquents is mandatory NOT
Must be found guilty the 2nd conviction discretionary.
3rd time or oftener  Modifying circumstances applicable to additional
Additional penalty is If not offset by MC, penalty.
imposed. increases penalty to  Habitual delinquency is NOT a crime but simply a
maximum. fact or circumstance which if present gives rise to
the imposition of the additional penalties.
What to be Alleged in the Information  Penalty for habitual delinquency is a real penalty
1. The dates of the commission of the previous that determines jurisdiction.
crimes.  A habitual delinquent is necessarily a recidivist.
2. The date of the last conviction or release.  But in imposing the additional penalty, recidivism is
3. The dates of the other previous convictions or not aggravating inasmuch as recidivism is a
releases. qualifying or inherent in habitual delinquency. The
additional penalty must be imposed in its
Effect of Plea of Guilty When Allegations are minimum.
Insufficient – NOT an admission that the offender  An offender can be a habitual delinquent without
is a habitual delinquent, but only a recidivist. being s recidivist when no 2 crimes committed are
embraced in the same title of the RPC.
Effect of failure to Object to Admission of Decision  The imposition of additional penalties on habitual
showing dates of Previous Conviction – failure to delinquents is constitutional for it is simply a
allege said dates in the information is deemed punishment on future crimes on account of the
cured. criminal propensities of the accused.

NOTES:
 Habitual delinquency has the effect, not only of ARTICLE 63. RULES FOR THE APPLICATION OF
increasing the penalty because of recidivism which INDIVISIBLE PENALTIES
is implied in habitual delinquency, but also of
imposing an additional penalty. 1. Penalty is single indivisible, it shall be applied by
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aggravating circumstances that may have attended Note: When there are 2 aggravating circumstance
the commission of the deed. and no mitigating – the penalty prescribed for the
crime should be imposed in its maximum period.
2. When the penalty is composed of two indivisible
penalties, the following rules shall be observed: 4. Both mitigating and aggravating circumstances are
present - offset those of one class against the
a. When there is only one aggravating other according to their relative weight.
circumstance, the greater penalty shall be
applied. Note: The mitigating must be ordinary, not
b. When there is neither mitigating nor privileged; the aggravating must be generic or
aggravating circumstances in the commission specific, not qualifying or inherent.
of the deed, the lesser penalty shall be
applied. 5. Two or more mitigating and no aggravating -
c. When there is mitigating circumstance and no penalty next lower, in the period applicable,
aggravating circumstance, the lesser penalty according to the number and nature of such
shall be applied. circumstances.

Thus, the penalty cannot be lowered by 1 Do not apply this when there is one aggravating
degree no matter how many mitigating circumstance.
circumstances are present.
Illustration:
Exception: When a privileged mitigating
circumstance under Art 68 or 69 is present. There are about four mitigating circumstances and
one aggravating circumstance. Court offsets the
d. When both mitigating and aggravating aggravating circumstance against the mitigating
circumstances attended the commission of the circumstance and there still remains three
act, the courts shall reasonably allow them to mitigating circumstances. Because of that, the
offset one another in consideration of their judge lowered the penalty by one degree. Is the
number and importance, for the purpose of judge correct?
applying the penalty in accordance with the
preceding rules, according to the result of such No. In such a case when there are aggravating
compensation. circumstances, no matter how many mitigating
circumstances there are, after offsetting, do not go
In this Par 4, moral value and not numerical down any degree lower. The penalty prescribed by
weight shall be taken into account. law will be the penalty to be imposed, but in the
minimum period. Cannot go below the minimum
NOTES: period when there is an aggravating circumstance.
 Art 63 is applicable only when the penalty is either
one indivisible penalty or two indivisible penalties. 6. Whatever may be the number and nature of the
Thus, it is NOT applicable if the penalty is reclusion aggravating circumstances, the courts shall not
temporal in its maximum to death, because impose a greater penalty than that prescribed by
although this penalty includes 2 indivisible law, in its maximum period.
penalties, it has 3 periods.
7. Within the limits of each period, the courts shall
ARTICLE 64. RULES FOR THE APPLICATION OF determine the extent of the penalty according to
PENALTIES WHICH CONTAIN THREE PERIODS the number and nature of the aggravating and
mitigating circumstances and the greater or lesser
In cases in which the penalties prescribed by law extent of the evil produced by the crime.
contain three periods, whether it be a single divisible
penalty or composed of three different penalties, each NOTES:
one of which forms a period in accordance with the  Art 64 applies only when the penalty has 3
provisions of articles 76 and 77, the courts shall periods because they are divisible. If the penalty is
observe for the application of the penalty the following composed of 3 different penalties, each forms a
rules, according to whether there are or are no period in accordance with Art 77.
mitigating or aggravating circumstances:  Art 64 is not applicable when the penalty is (a)
indivisible; (b) prescribed by special law; or (c)
1. No aggravating and no mitigating - medium period. fine.
2. Only a mitigating circumstance is present -  Cases where the attending aggravating or
minimum period. mitigating circumstances are not considered in the
3. Only an aggravating circumstance is present - imposition of penalties:
maximum period. a. Penalty is single and indivisible.
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c. Penalty to be imposed upon a Moro or other a. arresto mayor in its maximum period to prision
Non-Christian inhabitants. correccional in its minimum period - if culprit
d. Penalty is only a fine imposed by an ordinance shall have been guilty of a grave felony
(subject to discretion of court –see Art 66). b. arresto mayor in its minimum and medium
e. Penalties are prescribed by special laws. periods - if culprit shall have been guilty of a
less grave felony.
ARTICLE 65. RULE IN CASES IN WHICH THE
PENALTY IS NOT COMPOSED OF THREE 2. If all the conditions are not present, the act should
PERIODS be considered as reckless imprudence if the act is
executed without taking those precautions or
In cases in which the penalty prescribed by law is not measures which the most common prudence would
composed of three periods, the courts shall apply the require; and simple imprudence, if it is a mere lack
rules contained in the foregoing articles, dividing into of precaution in those cases where either the
three equal portions of time included in the penalty threatened harm is not imminent or the danger is
prescribed, and forming one period of each of the three not openly visible.
portions. 3. The penalty provided under Art 67 is the same as
that in Art 365.
Computation When the Penalty Has 3 Periods
(See Reyes Book 1) ARTICLE 68. PENALTY TO BE IMPOSED UPON A
PERSON UNDER EIGHTEEN YEARS OF AGE
Computation When the Penalty is Not Composed
of 3 Periods (See Reyes Book 1) NOTES:
1. Art 68 is not immediately applicable to a minor
under 18 years of age.
ARTICLE 66. IMPOSITION OF FINES 2. Art 68 applies to such minor if his application for
suspension of sentence is disapproved or while in
1. In imposing fines the courts may fix any the reformatory institution he becomes incorrigible,
amount within the limits established by law. in which case he shall be returned to court for the
2. The court must consider: imposition of the proper penalty. The penalties to
a. The mitigating and aggravating circumstances; be imposed are:
and a. Under 15 but over 9 years of age when acted
b. More particularly to the wealth or means of with discernment - at least 2 degrees lower
the culprit. than that prescribed by law for the crime
3. The following may also be considered by the committed.
court: b. Over 15 (should be 15 or over) and under 18
a. Gravity or seriousness of the crime committed; years of age - the penalty next lower than that
b. Heinousness of its perpetration; prescribed by law shall be imposed, but always
c. Magnitude of its effects on the offender‘s in the proper period. (1 degree lower)
victims.
If the act is attended by 2 or more mitigating
NOTE: When the minimum of the fine is not fixed by and no aggravating, the penalty being
law, the court has the discretion to determine the fine divisible, a minor over 15 and under 18 may
provided it shall not exceed the maximum authorized still get a penalty 2 degrees lower.
by law.
ARTICLE 69. PENALTY TO BE IMPOSED WHEN
ARTICLE 67. PENALTY TO BE IMPOSED WHEN THE CRIME COMMITTED IS NOT WHOLLY
NOT ALL THE REQUISITES OF EXEMPTION OF EXCUSABLE
THE FOURTH CIRCUMSTANCE OF ARTICLE 12
ARE PRESENT A penalty lower by one or two degrees than that
prescribed by law shall be imposed if the deed is not
Requisites of Art 12 par 4: wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt
1. Act causing injury must be lawful; from criminal liability in the several cases mentioned in
2. Act performed with due care; article 11 and 12 (INCOMPLETE JUSTIFYING AND
3. Injury was caused by mere accident; INCOMPLETE EXEMPTING), provided that the majority
4. No fault or intention to cause injury. of such conditions be present. The courts shall impose
the penalty in the period which may be deemed
NOTES: proper, in view of the number and nature of the
1. When all the conditions required in circumstance conditions of exemption present or lacking.
number 4 of article 12 of this Code to exempt from
criminal liability are not present, the following ARTICLE 70. SUCCESSIVE SERVICE OF
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No other penalty to which he may be liable shall be
1. When the culprit has to serve two or more inflicted after the sum total of those imposed equals
penalties, he shall serve them simultaneously if the the same maximum period. (Thus, Subsidiary
nature of the penalties will so permit. imprisonment shall be excluded in computing for the
maximum duration)
The penalties which can be served simultaneously
are: Such maximum period shall in no case exceed forty
a. Perpetual absolute disqualification, years.
b. Perpetual special disqualification, Notes:
c. Temporary absolute disqualification,  The phrase ―the most severe of the penalties‖
d. Temporary special disqualification, includes equal penalties.
e. Suspension from public office, the right to vote  If only 2 or 3 penalties corresponding to
and be voted for, the right to follow a different crimes committed by the convict are
profession or calling, imposed, it is hardly possible to apply the 3-fold
f. Distierro, rule.
g. Public censure,  The 3-fold rule applies only when the convict
h. Fine and bond to keep the peace, has to serve at least four sentences. Sentences
i. Civil interdiction, must be served successively, not simultaneously.
j. Confiscation and payment of costs. It applies although sentences are promulgated by
different courts, at different times, for different
Note: The above penalties, except distierro, crimes, and under separate informations.
can be served simultaneously with  The 3-fold rule must be used only when the
imprisonment. product of the greatest penalty multiplied by 3 is
less than the sum of all the penalties to be
2. Otherwise, the order of their severity shall be imposed.
followed.  For purposes of the rule, indivisible penalties
shall be given an equivalent duration of 30 years,
In such case, they may be executed successively so that if he will have to suffer several perpetual
or as nearly as may be possible, should a pardon disqualification, under the rule, you take the most
have been granted as to the penalty or penalties severe and multiply it by 3. The rule does not
first imposed, or should they have been served apply to the penalty prescribed but to the penalty
out. imposed as determined by the court.

Note: The time of the 2nd sentence will not Different Systems of Penalty
commence to run until the expiration of the first. 1. Material Accumulation System – no limitation
whatsoever, and accordingly all the penalties for all
The respective severity of the penalties is as the violations were imposed even if they reached
follows: beyond the natural span of human life. (e.g. Pars 1
1. Death, to 3 of Art 70)
2. Reclusion perpetua, 2. Juridical Accumulation System – Limited to not
3. Reclusion temporal, more than the 3-fold length of time corresponding
4. Prision mayor, the most severe penalty and in no case to exceed
5. Prision correccional, 40 years.
6. Arresto mayor, 3. Absorption System – the lesser penalties are
7. Arresto menor, absorbed by graver penalties.
8. Destierro,
9. Perpetual absolute disqualification,
10 Temporary absolute disqualification. ARTICLE 71. GRADUATED SCALES
11. Suspension from public office, the right to vote
and be voted for, the right to follow a profession or In the cases in which the law prescribes a penalty
calling, and lower or higher by one or more degrees than another
12. Public censure. given penalty, the rules prescribed in article 61 shall be
observed in graduating such penalty.
In applying the provisions of this rule the duration of
perpetual penalties (penal perpetua) shall be computed The lower or higher penalty shall be taken from the
at thirty years.(As amended by Com. Act No. 217.) graduated scale in which is comprised the given
penalty.
Three-Fold Rule - the maximum duration of the
convict‘s sentence shall not be more than 3 times the The courts, in applying such lower or higher penalty,
length of time corresponding to the most severe of the shall observe the following graduated scales:
penalties imposed upon him.
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SCALE NO. 1
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1. Death, liability – follow chronological order of the dates of
2. Reclusion perpetua, the final judgments.
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional, SECTION 3
6. Arresto mayor,
7. Destierro, Provision Common To The Last Two Preceding
8. Arresto menor, Sections
9. Public censure,
10. Fine. ARTICLE 73. PRESUMPTION IN REGARD TO THE
IMPOSITION OF ACCESSORY PENALTIES
SCALE NO. 2
1. Perpetual absolute disqualification, Whenever the courts shall impose a penalty which, by
2. Temporary absolute disqualification provision of law, carries with it other penalties,
3. Suspension from public office, the right to vote and according to the provisions of Articles 40, 41, 42, 43,
be voted for, the right to follow a profession or calling, 44, and 45 of this Code, it must be understood that the
4. Public censure, accessory penalties are also imposed upon the convict.
5. Fine. Note: Subsidiary imprisonment must be stated in the
Art 25 Art 70 Art 71 decision because it is not considered a accessory
Penalties are Penalties are Provides for the penalty.
classified into classified scale to be
principal and according to observed in ARTICLE 74. PENALTY HIGHER THAN
accessory severity. graduating of RECLUSION PERPETUA IN CERTAIN CASES
penalties. penalties by
Principal is degrees. In cases in which the law prescribes a penalty higher
further classified Penalties are than another given penalty, without specifically
into capital, classified into 2 designating the name of the former, if such higher
afflictive, graduated penalty should be that of death, the same penalty and
correctional, and scales. Scale 1 the accessory penalties of article 40, shall be
light. refers to considered as the next higher penalty.
personal
penalties, while NOTE: If the law or decision says higher than RP or 2
scale 2 refer to degrees higher than RT, then the penalty imposed is
penalties RP or RT as the case may be and not death. Death
consisting in must be designated by name. However, the accessory
deprivation of penalties of death when not executed by reason of
political rights. commutation or pardon shall be imposed..
Destierro is Destierro is Destierro is
placed above placed under above arresto ARTICLE 75. INCREASING OR REDUCING THE
arresto menor arresto menor menor because PENALTY OF FINE BY ONE OR MORE DEGREES
because it is according to it is classified as
classifies as severity. correctional Whenever it may be necessary to increase or reduce
correctional Destierro is penalty which is the penalty of fine by one or more degrees, it shall be
penalty. lighter than higher than increased or reduced, respectively, for each degree, by
arresto menor. arresto menor, a one-fourth of the maximum amount prescribed by law,
light penalty without, however, changing the minimum.

The same rules shall be observed with regard to fines

ARTICLE 72. PREFERENCE IN THE PAYMENT OF that do not consist of a fixed amount, but are made
THE CIVIL LIABILITIES proportional.

The civil liabilities of a person found guilty of two or

more offenses shall be satisfied by following the Fine w/ a Minimum Fine w/o a minimum
chronological order of the dates of the final judgments Maximum is fixed Same
rendered against him, beginning with the first in order Courts cannot change the Court can imposed any
of time. minimum fixed by law amount not exceeding the
maximum
NOTES: When both minimum and When only the maximum
 This Art is applicable in case the person guilty maximum is fixed, court is fixed, court can impose
of 2 or more offenses has 2 or more civil liabilities. can impose an amount any amount not exceeding
 Criminal liability – successive service of higher than the maximum the maximum 10
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form a period; the lightest of them shall be the
ARTICLE 76. LEGAL PERIOD OF DURATION OF minimum, the next the medium, and the most severe
DIVISIBLE PENALTIES the maximum period (Known as the COMPLEX
PENALTY).
The legal period of duration of divisible penalties shall
be considered as divided into three parts, forming Whenever the penalty prescribed does not have one of
three periods, the minimum, the medium, and the the forms specially provided for in this Code, the
maximum in the manner shown in the following table: periods shall be distributed, applying for analogy the
prescribed rules.
TABLE SHOWING THE DURATION OF DIVISIBLE
PENALTIES AND THE TIME INCLUDED IN EACH EXCUTION AND SERVICE OF PENALTY
OF THEIR PERIODS
 ―No penalty shall be executed except by virtue
Penalti Time Time Time Time
of a final judgment‖
es included included include included
 The judgment must be final before it can be
in the in its d in its in its
executed because the accused may still appeal
penalty minimu medium maximu
within 15 days from its promulgation. But if
in its m period period m period
the dependant has expressly waived in writing
entirety
his right to appeal, the judgment becomes
Reclusi From 12 From 12 From 14 From 17
final immediately.
on years and years and years, 8 years, 4
Tempo 1 day to 1 day to months months
RULES IN SUSPENSION OF THE EXECUTION AND
ral 20 years 14 years and 1 and 1 day
SERVICE OF PENALTIES IN CASE OF INSANITY:
and 8 day to to 20
months 17 years years
1. When a convict becomes insane or imbecile
Prision From 6 From 6 From 8 From 10
after final sentence has been pronounced, the
Mayor, years and years and years years and
execution of said sentence is suspended only
absolu 1 day to 1 day to 8 and 1 1 day to
as regards the personal penalty.
te 12 years years day to 12 years
2. If he RECOVERS his reason, his sentence shall
disqual 10 years
be executed, unless the penalty has
ificatio
prescribed.
n and
3. Even if while serving his sentence, the convict
special
becomes insane or imbecile, Article 79 shall be
tempor
observed.
ary
4. But the payment of his civil or pecuniary
disqual
liabilities shall not be suspended.
ificatio
n
Prision From 6 From 6 From 2 From 4
Title 4
Correc months months years, 4 years 2
EXTINCTION OF CRIMINAL LIABILITY
cional, and 1 day and 1 day months months
suspen to 6 years to 2 years and 1 and 1 day
 There are two (2) classifications when
sion and 4 day to 4 to 6 years Criminal Liability are extinguished:
and months years a. TOTAL
destier and 2
b. PARTIAL
ro months
Arresto From 1 From 1 From 2 From 4 CRIMINAL LIABILITY IS TOTALLY
Mayor month month months months 1 EXTINGUISHED AS FOLLOWS:
(does and 1 day and 1 day and 1 day to 6
not to 6 to 2 day to 4 months 1. By the death of the convict as to personal
follow months months months penalties, and as to the pecuniary penalties,
the liability therefore is extinguished only when the
rule) death of the offender occurs before final
Arresto From 1 to From 1 to From 11 From 21 judgment.
Menor 30 days 10 days to 20 to 30
days days
 The death of the convict, whether before or
after final judgment, extinguishes criminal
ARTICLE 77. WHEN THE PENALTY IS A COMPLEX
liability, because one of the juridical conditions
ONE COMPOSED OF THREE DISTINCT
of penalty is that it is PERSONAL. At this
PENALTIES
instance, his civil liability is also extinguished.
 While the case is on appeal, the offender dies, 10
In cases in which the law prescribes a penalty
the case on appeal will be dismissed. The
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offended party may file a separate civil action act of the President must
proclamation of the chief
under the Civil Code if any other basis for be pleaded and proved by
executive with the
recovery of civil liability exists as provided the person pardoned concurrence of Congress,
under Art. 1157 of the Civil Code. is a public act of which
the courts should take
2. By service of sentence judicial notice
* BOTH DO NOT EXTINGUISH THE CIVIL LIABILITY OF
 Crime is debt incurred by the offender as THE OFFENDER
a consequence of his wrongful act and the
penalty is but the amount of his debt. 5. By prescription of the crime.
 Service of sentence does not extinguish
the civil liability.  It is the forfeiture or loss of the right of
the state to Prosecute the offender after
3. By amnesty which completely extinguishes the lapse of a certain time.
the penalty and all its effects  Prescription of the crime begins, as a
general rule on the day of the crime was
AMNESTY, Defined. committed, unless the crime was
It is an act of the sovereign power granting oblivion concealed, not public, in which case, the
or a general pardon for a past offense and is rarely, if prescription thereof would only commence
ever, exercised in the favor of a single individual, and is from the time the offended party or the
usually exerted in behalf of certain classes of persons, government learns of the commission of
who are subject to trial but have not yet been the crime.
convicted.  Prescription of the crime is not waivable.

 Amnesty erases not only the conviction but The prescription of the felony is suspended
also the crime itself. when:
 While amnesty wipes out all traces and 1. When a complaint is filed in a proper
vestiges of the crime, it does not extinguish barangay for conciliation or mediation but
the civil liability of the offender. the suspension of the prescriptive period
is good only for 60 days, after which the
4. By absolute pardon. prescription will resume to run, whether
the conciliation or mediation is terminated
PARDON. Defined. or not.
It is an act of grace proceeding from the power 2. When criminal case is filed in the Fiscal‘s
entrusted with the execution of the laws which Office, the prescription of the crime is
exempts the individual on whom it is bestowed from suspended until the accused is convicted
the punishment of the law inflicts for the crime he has or the proceeding is terminated for a
committed. cause not attributable to the accused.
3. But where the crime is subject to
 Pardon, whether absolute or conditional, is summary Procedure, the Prescription of
in the nature of a deed, for the validity of the crime will be suspended only when the
which delivery is an indispensable information is already filed with the trial
requisite. court. It is not the filing of the complaint,
but the filing of the information in the trial
AMNESTY AND PARDON DISTINGUISHED. court which will suspend the prescription.
PARDON AMNESTY
- includes any crime and - is a blanket of pardon to  The prescription of penalty, the period will
is exercised individually by classes of persons on only commence to run when the convict
the president communities who may be has began to serve the sentence.
guilty of political offenses
Prescription of Crimes
- exercised when the - may be exercised even Reclusion perpetua or temporal 20 years
person is already before trial or Punishable by afflictive penalties 15 years
convicted investigation is had Punishable by correctional penalties 10 years
- pardon looks forward - amnesty looks backward Punishable by Arresto Mayor 5 years
and relieves the offender and abolishes and puts Crime of libel/similar offenses 1 year
from the consequences of into oblivion the offense Oral defamation/slander by deed 6 months
an offense or which he itself. Light Offenses 2 months
has been convicted, that
is its abolishes or forgives  In computing the period for prescription,
the punishment the first day is to be excluded and that 10
- pardon being a private - amnesty being by last day included 8

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 When fine is an alternative penalty higher
than the other penalty which is  This includes the allowance for loyalty
imprisonment – the prescription is based under Article 98 in relation to Article 158.
on the fine
4. By parole.
* Whether it is prescription of crime or penalty, PAROLE, defined.
if the subject left the country, and went in a Parole consists in the suspension of the sentence of
country with which the Philippines has no a convict after serving the minimum term of the
extradition treaty, the prescriptive period shall indeterminate penalty, without granting a pardon,
remain suspended whenever he is out of the prescribing the terms upon which the sentence shall be
country. suspended.

PRESCRIPTION OF PENALTIES  The mere commission not conviction by

Death and Reclusion Perpetua 20 years the Court, of any crime is sufficient to
Afflictive Penalties 15 years warrant parolees arrest and reincarnation.
Correccional Penalties 10 years DISTINCTION BETWEEN CONDITIONAL PARDON
Arresto Mayor 5 years AND PAROLE
Light Penalties 1 year CONDITIONAL PAROLE
7. By the marriage of the offended woman. PARDON
- may be given at anytime - may be given after the

In cases of rape, seduction, abduction or after final judgment prisoner has served the
acts of lasciviousness. Hence, marriage minimum penalty
contracted only to avoid criminal liability is - granted by the Chief - granted by the Board of
devoid of legal effects. Executive under the Pardons and Parole under
CRIMINAL LIABILITY IS EXTINGUISHED AS provisions of the the provision of the
FOLLOWS: Administrative Code Indeterminate Sentence
Law
1. By conditional pardon. - for violation of the - for violation of the terms
conditional pardon, the of the parole, the convict
 Conditional pardon delivered and accepted convict may be ordered cannot be prosecuted
is considered a contract between the rearrested or reincarnated under Art. 159. He can be
sovereign power of the Executive and the by the Chief Executive or rearrested and
convict that the former will release the may be prosecuted under reincarcerated to serve
latter upon compliance with the condition. Art. 159 of the Code the unserved portion of
his original penalty
PRESCRIPTION OF PENALTIES
Death and Reclusion Perpetua 20 years
Afflictive Penalties 15 years OBLIGATIONS OF THE PERSON GRANTED
CONDITIONAL PARDON
Correccional Penalties 10 years
Arresto Mayor 5 years
1) He must comply strictly with the conditions imposed
Light Penalties 1 year
on the pardon.
2. By commutation of the sentence.
2) Failure to comply with the conditions shall result in
the revocation of the pardon.

It is a change in the decision of the Court
made by the Chief Executive by reducing 3) He becomes liable under Art. 159. This is the
the degree of the penalty inflicted upon Judicial remedy.
the conflict, or by decreasing the length of
the imprisonment or the amount of the Title 5
fine. CIVIL LIABILITY
INSTANCES WHERE COMMUTATION IS APPLIED:
Article 20, NCC.
1. When the convict sentenced to death is over ―Every person who, contrary, to law, willfully
70 years of age. or negligently causes damage to another, shall
2. When 10 justices of the Supreme Court fail to indemnify the latter for the same.
reach a decision for the affirmance of the
death penalty Article 1161, NCC
―Civil obligations arising from criminal offenses
3. For good conduct allowances which the shall be governed by the penal laws, subject to the
culprit may earn while he is serving sentence. provisions of Article 2177, and of the pertinent 10
provisions of Chapter 2, Preliminary Title, on Human 9

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Relations and Title XVIII of this book, regulating from a public sale where the law protects
damages/ the buyer.
 Restitution is applicable only to crimes
 The basis of civil liability is the obligation against property.
of everyone to repair or to make whole  The obligation of the offender transcends
the damage caused to another by reason to his heirs, even if the offender dies,
of his act or omission, whether done provided he died after judgment became
intentionally or negligently and whether or final, the heirs shall assume the burden of
not punishable by law. the civil liability, but this is only to the
 If the felony committed could not or did extent that they inherit property from the
not cause any damage to another, the deceased, if they do not inherit, they
offender is not civilly liable even if he is cannot inherit the obligations.
criminally liable for the felony committed.  The right of the offended party transcends
 Extinction of the penal action does not to heirs upon death. The heirs of the
carry with it extinction of the civil liability, offended party step into the shoes of the
unless the extinction proceeds from a latter to demand civil liability form the
declaration in a final judgment that the offender.
fact, from which the civil liability might
arise did not exist. 2. REPARATION

CIVIL LIABILITY MAY EXIST, ALTHOUGH THE  When the stolen property cannot be
ACCUSED IS NOT HELD CRIMINALLY LIABLE, IN returned because it was sold to an
THE FOLLOWING CASES: unknown person, he will be required by
the Court if found guilty to pay the actual
1. Acquittal on REASONABLE DOUBT – when the price of the thing plus its sentimental
guilt of the offender has not been proved value.
beyond reasonable doubt, a civil action for
damages for the same act or omission may be 3. INDEMNIFICATION FOR CONSEQUENTIAL
instituted. DAMAGES
2. Acquittal from A CAUSE OF NON
IMPUTABILITY – the exemption from criminal  It is ordinarily the remedy granted to the
liability in favor of an imbecile insane person, victims of crimes against persons
etc.  Indemnification of consequential damages
3. ACQUITTAL IN THE CRIMINAL ACTION FOR refers to the loss of earnings, loss of profits.
NEGLIGENCE does not preclude, the offended This does not refer only to the consequential
party from filing a civil action to recover damages suffered by the offended part, this
damages, based on the new theory that the also includes consequential damages to third
act is a quasi-delict. party who also suffers because of the
4. WHERE THERE IS ONLY CIVIL commission of the crime.
RESPONSIBILITY – when the Court finds and
so states in its judgment that there is only civil SUBSIDIARY LIABILITY
responsibility, and not criminal responsibility,
and that this finding is the cause of the Requisites:
acquittal. 1. The employer must be engaged in business or
5. IN CASES OF INDEPENDENT CIVIL ACTIONS in trade or industry while the accused was his
under Article 31, 32, 33, 34, and 1167 of NCC. employee.
2. At the time the crime was committed the
CIVIL LIABILITY OF THE OFFENDER FALLS employer-employee relationship must be
UNDER THREE CATEGORIES: existing between the two;
3. The employee must have been found guilty of
1. RESTITUTION AND RESTORATION the crime charged and accordingly held civilly
 Restitution or restoration presupposes that liable; and
the offended party was divested of 4. the writ of execution for the satisfaction of the
property, and such property must be civil liability was returned unsatisfied because
returned. the accused-employee does not have enough
 If the property is in the hands of a third property to pay the civil liability.
person/party, the same shall nevertheless  all the requisites must concur
be taken from him and restored to the  there is no need to file a civil action against
offended party, even though such third the employer in order to enforce the subsidiary
party may be a holder for value and a civil liability for the crime committed by his
buyer in good faith of the property, except employee, it is enough that the writ of
11
when such third party buys the property execution is returned unsatisfied
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years
SUBSIDIARY CIVIL LIABILITY IS IMPOSED IN and 2
THE FOLLOWING: month
s
1. In case of a felony committed under the Arresto From From 1 From From 4
compulsion of an irresistible force. The person Mayor 1 month 2 months
who employed the irresistible force is month and 1 month 1 day
subsidiarily liable. and 1 day to s and to 6
2. In case of a felony committed under an day to 2 1 day months
impulse of an equal or greater injury. The 6 months to 4
person who generated such an impulse is month month
subsidiarily liable. s s
3. The owners of taverns, inns, hotels, motels, Arresto From From 1 From From
where the crime is committed within their Menor 1 to to 10 11 to 21 to
establishment die to non-compliance with 30 days 20 30 days
general police regulations, if the offender who days days
is primarily liable cannot pay the proprietor, or
owner is subsidiarily liable. BOOK II
4. Felonies committed by employers, pupils,
servants, in the course of their employment, TITLE I
schooling or household chores. The employer, CRIMES AGAINST NATIONAL SECURITY AND
master, teacher is subsidiarily liable civilly, THE LAWS OF NATIONS
while the offender is primarily liable.
5. In case the accomplice and the principal Crimes against national security
cannot pay, the liability of the person 1. Treason (Art. 114);
subsidiary liable is absolute. 2. Conspiracy and proposal to commit treason
(Art. 115);
Penalties Time Time Time Time 3. Misprision of treason (Art. 116); and
inclu includ inclu includ 4. Espionage (Art. 117).
ded ed in ded ed in
in the its in its its Crimes against the law of nations
penal minim medi maxim 1. Inciting to war or giving motives for reprisals
ty in um um um (Art. 118);
its period perio period 2. Violation of neutrality (Art. 119);
entir d 3. Corresponding with hostile country (Art. 120);
ety 4. Flight to enemy's country (Art. 121); and
Reclusion From From From From 5. Piracy in general and mutiny on the high seas
Temporal 12 12 14 17 (Art. 122).
years years years, years,
and 1 and 1 8 4 The crimes under this title can be prosecuted even if
day to day to month months the criminal act or acts were committed outside the
20 14 s and and 1 Philippine territorial jurisdiction. However, prosecution
years years 1 day day to can proceed only if the offender is within Philippine
and 8 to 17 20 territory or brought to the Philippines pursuant to an
months years years extradition treaty. This is one of the instances where
Prision From From 6 From From the Revised Penal Code may be given extra-territorial
Mayor, 6 years 8 10 application under Article 2 (5) thereof. In the case of
absolute years and 1 years years crimes against the law of nations, the offender can be
disqualific and 1 day to and 1 and 1 prosecuted whenever he may be found because the
ation and day to 8 years day to day to crimes are regarded as committed against humanity in
special 12 10 12 general.
temporary years years years
disqualific In crimes against the law of nations, the offenders can
ation be prosecuted anywhere in the world because these
Prision From From 6 From From 4 crimes are considered as against humanity in general,
Correccion 6 months 2 years 2 like piracy and mutiny. Crimes against national
al, month and 1 years, months security can be tried only in the Philippines, as there is
suspensio s and day to 4 and 1 a need to bring the offender here before he can be
n and 1 day 2 years month day to made to suffer the consequences of the law. The acts
destierro to 6 and 4 s and 6 years against national security may be committed abroad and
years months 1 day still be punishable under our law, but it can not be tried 11
to 4 under foreign law. 1

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Ways to Commit Treason:
Almost all of these are crimes committed in times of
war, except the following, which can be committed in 1. Levying war against government which requires:
times of peace: a. actual assembling of men
b. for the purpose of executing a treasonable
(1) Espionage, under Article 114 – This is also covered design, by force
by Commonwealth Act No. 616 which punishes
conspiracy to commit espionage. This may be Levying war – must be with intent to overthrow
committed both in times of war and in times of the government as such, not merely to repeal a
peace. particular statute or to resist a particular officer.

(2) Inciting to War or Giving Motives for Reprisals, Not necessary that those attempting to overthrow
under Article 118 – This can be committed even if the government by force of arms should have the
the Philippines is not a participant. Exposing the apparent power to succeed in their design, in
Filipinos or their properties because the offender whole or in part.
performed an unauthorized act, like those who
recruit Filipinos to participate in the gulf war. If It is not necessary that there be a formal
they involve themselves to the war, this crime is declaration of the existence of the state of war.
committed. Relevant in the cases of Flor
Contemplacion or Abner Afuang, the police officer 2. Adherence to enemies – following must concur
who stepped on a Singaporean flag. together:
a. actual adherence
(3) Violation of Neutrality, under Article 119 – The b. give aid or comfort
Philippines is not a party to a war but there is a
war going on. This may be committed in the light Adherence – intellectually or emotionally favors
of the Middle East war. the enemy and harbors sympathies or convictions
disloyal to his country‘s policy or interest
Section 1 – Treason and Espionage
Aid or comfort – act which strengthens or tends
Article 114. Treason to strengthen the enemy of the government in the
conduct of war against the government, or an act
Elements which weakens or tends to weaken the power of
1. Offender is a Filipino or resident alien (owes the government or the country to resist or to
allegiance to the government); attack the enemies of the government or country.
2. There is a war in which the Philippines is involved; The act committed need not actually strengthen
3. Offender either the enemy
a. levies war against the government; or
b. adheres to the enemies, giving them aid or Enemy – applies only to the subjects of a foreign
comfort within the Philippines or elsewhere power in a state of hostility with the traitor‘s
country. It does not embrace rebels in the
Treason – breach of allegiance to the government by insurrection against their own country. The aid or
a person who owes allegiance to it. comfort given to the enemies must be after the
declaration of war between the countries.
Allegiance – obligation of fidelity and obedience
which individuals owe to the government under which Persons liable:
they live or to their sovereign, in return for protection
they receive. 1. Filipino – permanent allegiance; can commit
treason anywhere
 Treason is a war crime – punished by state as a 2. Alien Residing – temporary allegiance; commit
measure of self-protection. treason only while residing in Philippines.

 Committed in times of war (not peace) when Ways to Prove

o There is actual hostiltites
o No need for a declaration of war 1. Treason
a. testimony of at least 2 witnesses to the same
 Mere acceptance of public office and discharge overt act
of official duties under the enemy do not constitute b. judicial confession of accused
per se the felony of treason. But when the position
is policy-determining, the acceptance of public To convict: testimonies must relate to the same
office and discharge of official duties constitute overt act – not two similar acts
treason 11
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If act is separable – each witness can testify to b. adhere to the enemies, giving them aid or
parts of it, but the act, as a whole, must be comfort;
identifiable as an overt act 3. He proposes its execution to some other persons.

Confession must be in open court  GENERAL RULE, conspiracy and proposal to

commit a felony is not punishable (Art 8). Art 115
Reason for 2-witness rule – special nature of the is an exception as it specifically penalizes
crime requires that the accused be afforded a conspiracy and proposal to commit treason.
special protection not required in other cases so as  Two-witness rule – not applicable since this is a
to avoid a miscarriage of justice. Extreme crime separate and distinct from treason.
seriousness of the crime, for which death is one of  If actual acts of treason are committed after the
the penalties provided by law, and the fact that the conspiracy or proposal, the crime committed will
crime is committed in abnormal times, when small be treason, and the conspiracy or proposal is
differences may in mortal enmity wipe out all considered absorbed.
scruples in sacrificing the truth

2. Adherence Article 116. Misprision of Treason

a. one witness
b. nature of act itself Elements
c. circumstances surrounding act
1. Offender must be owing allegiance to the
 Treason is a continuing crime. Even after the government, and NOT a foreigner;
war, offender can still be prosecuted. 2. He has knowledge of conspiracy to commit treason
 No treason through negligence since it must against the government;
be intentional 3. He conceals or does not disclose and make known
 No complex crime of treason with murder – the same as soon as possible to the proper
murder is the overt act of aid or comfort and is authority.
therefore inseparable from treason itself. Treason
absorbs crimes committed in furtherance thereof.  It is a crime of omission. It is an exception to the
Also, no separate crimes. rule that mere silence does not make a person
 Treason committed in a foreign country may be criminally liable.
prosecuted in the Phils.  Crime doesn‘t apply if crime of treason is already
 Treason by an alien must be committed in the committed and it is not reported.
Phils, EXCEPT in case of conspiracy.  Whether the conspirators are parents or children,
and the ones who learn the conspiracy is a parent
 DEFENSES or child, they are required to report the same. The
- duress or uncontrollable fear reason is that although blood is thicker than water
- obedience to de facto government so to speak, when it comes to security of the state,
blood relationship is always subservient to national
 NOT DEFENSES security. Article 20 does not apply here because
- suspended allegiance the persons found liable for this crime are not
- joining the enemy army thus considered accessories; they are treated as
becoming a citizen of the enemy principals.
 The phrase ―shall be punished as an accessory to
Article 115. Conspiracy and Proposal to Commit the crime of treason‖ mentioned in the provision
Treason does not mean that the offender is an accessory to
the crime of treason because he is actually a
Elements of conspiracy to commit treason principal in a crime of misprision of treason. It
simply means that the penalty imposed is that of
1. There is a war in which the Philippines is involved; an accessory to the crime of treason.
2. At least two persons come to an agreement to –
a. levy war against the government; or Article 117. Espionage
b. adhere to the enemies, giving them aid or
comfort; Espionage – is the offense of gathering, transmitting,
3. They decide to commit it. or losing information respecting the national defense
with intent or reason to believe that the information is
Elements of proposal to commit treason to be used to the injury of the Republic of the
Philippines or the advantage of a foreign nation.
1. There is a war in which the Philippines is involved; Modes of Committing Espionage
2. At least one person decides to –
a. levy war against the government; or 1. By entering, without authority, a warship, fort 11
or naval or military establishment or reservation to
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obtain any information, plans, photograph or other 1. Unlawfully obtaining or permitting to be obtained
data of a confidential nature relative to the defense information affecting national defense;
of the Philippines; 2. Unlawful disclosing of information affecting
Elements national defense;
3. Disloyal acts or words in times of peace(i.e causing
1. Offender enters any of the places mentioned; in any manner insubordination, disloyalty, mutiny
2. He has no authority therefore; or refusal of duty of any member of the military,
3. His purpose is to obtain information, plans, naval, or air forces of the Philippines) ;
photographs or other data of a confidential 4. Disloyal acts or words in times of war;
nature relative to the defense of the 5. Conspiracy to violate the foregoing acts;
Philippines. 6. Harboring or concealing violators of law (i.e. the
offender harbors a person whom he knows as
Note: There must be an intention to obtain someone who committed or is about to commit a
information relative to the defense of the Phils., violation of this Act; and the person harbors or
although it is not necessary that the information is conceals such person); and
obtained. 7. Photographing from aircraft of vital information.

2. By disclosing to the representative of a Section 2 – Provoking War Disloyalty in Case of

foreign nation the contents of the articles, data War
or information referred to in paragraph 1 of Article
117, which he had in his possession by reason of Article 118. Inciting to War or Giving Motives
the public office he holds. for Reprisals
Elements
Elements
1. Offender is a public officer;
2. He has in his possession the articles, data or 1. Offender performs unlawful or unauthorized acts;
information referred to in paragraph 1 of 2. The acts provoke or give occasion for –
Article 117, by reason of the public office he a. a war involving or liable to involve the
holds; Philippines; or
3. He discloses their contents to a representative b. exposure of Filipino citizens to reprisals on their
of a foreign nation. persons or property.

Persons Liable  Crime is committed in time of peace.

 Intent of the offender is immaterial.
1. first mode:  In incitng to war, the offender is any person. If the
a. Filipino (being a public officer is aggravating) offender is a public officer, the penalty is higher.
b. alien residing  Reprisals are not limited to military action; it could
2. second mode: be economic reprisals, or denial or entry into their
a. offender is a public officer country
 Example: X burns Chinese flag. If China bans the
 Espionage is not conditioned on citizenship. entry of Filipinos into China, that is reprisal.
 Wiretapping is not espionage if the purpose is not
connected with the defense.
Article 119. Violation of Neutrality
TREASON ESPIONAGE
Both not conditioned by citizenship of offender Elements
Committed in war war and peace time
time 1. There is a war in which the Philippines is not
Limited in two ways Committed in many involved;
of committing the ways 2. There is a regulation issued by a competent
crime: levying war, authority to enforce neutrality;
and adhering to the 3. Offender violates the regulation.
enemy giving him aid
or comfort NEUTRALITY – the condition of a nation that in times
of war it takes no part in the contest of arms between
Commonwealth Act No. 616 – An Act to Punish others.
Espionage and Other Offenses against National
Security  Being a public officer or employee has higher
penalty
Some Acts punished
Article 120. Correspondence with Hostile
11
Country
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Elements Section 3 – Piracy and Mutiny on the High Seas

1. It is in time of war in which the Philippines is Article 122. Piracy in general and Mutiny on the
involved; High Seas or in Philippine Waters
2. Offender makes correspondence with an enemy
country or territory occupied by enemy troops; Piracy – it is robbery or forcible depredation on the
3. The correspondence is either – high seas, without lawful authority and done with
a. prohibited by the government; animo furandi and in the spirit and intention of
b. carried on in ciphers or conventional signs; or universal hostility.
c. containing notice or information which might
be useful to the enemy. Mutiny – the unlawful resistance to a superior, or the
raising of commotions and disturbances on board a
CORRESPONDENCE – is a communication by means ship against the authority of its commander
of letters; or it may refer to the letters which pass
between those who have friendly or business relations. Modes of Committing Piracy in the High Seas or
in Philippine waters
 A hostile country exists only during hostilities or
after the declaration of war 1. Attacking or seizing a vessel on the high seas OR
 Correspondence to enemy country is in Philippine waters (PD 532 as amended 7659);
correspondence to officials of enemy country even 2. Seizing in the vessel while on the high seas or in
if said official is related to the offender Philippine waters the whole or part of its cargo, its
 It is not correspondence with private individual in equipment or personal belongings of its
enemy country complement or passengers, the offenders being
 If ciphers were used, no need for prohibition of the strangers to the vessels
government
 If ciphers were not used, there is a need for Elements of piracy
prohibition of the government.
 Even if the correspondence contains innocent 1. The vessel is on the high seas OR Philippine
matters, if it is prohibited by the government, it is waters;
punishable because of the possibility that some 2. Offenders are neither members of its complement
information useful to the enemy might be revealed nor passengers of the vessel;
unwittingly. 3. Offenders either –
a. attack or seize a vessel on the high seas or in
Qualifying Circumstances Philippine waters; or
b. seize in the vessel while on the high seas or in
1. Notice or information might be useful to the enemy Philippine waters the whole or part of its
2. Offender intended to aid the enemy (crime amounts cargo, its equipment or personal belongings of
to treason) its complement or passengers;
4. There is intent to gain.
Article 121. Flight to Enemy's Country
Elements of mutiny
Elements
1. The vessel is on the high seas or Philippine waters;
1. There is a war in which the Philippines is involved; 2. Offenders are either members of its complement,
2. Offender must be owing allegiance to the or passengers of the vessel;
government; 3. Offenders either raise commotions and
3. Offender attempts to flee or go to enemy country; disturbances on board a ship against the authority
4. Going to the enemy country is prohibited by of its commander or make unlawful resistance to a
competent authority. superior officer.
High seas – any waters on the sea coast which are
Persons liable without the boundaries of the low water mark although
1. Filipino citizen such waters may be in the jurisdictional limits of a
2. Alien residing in the Philippines foreign gov‘t; parts of the sea that are not included
in the exclusive economic zone, in territorial seas, or in
 mere attempt consummates the crime the internal waters of a state, or in archipelagic waters
 there must be a prohibition. If there is none, even of an archipelagic state (US convention on the Law of
if one went to enemy country, there is no crime the Sea)
 an alien resident may be held guilty for this crime
because an alien owes allegiance to Phil. gov‘t Philippine waters – all bodies of water, such as but
although temporary. not limited to seas, gulfs, bays, around, between and 11
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Archipelago, irrespective of its depth, breadth, length
or dimension, and all waters belonging to the Phils. by
historic or legal title, inc. territorial sea, the seabed, the WITHIN PHIL. WATERS
insular shelves, and other submarine areas over which Art 122, RPC PD 532, Anti-Piracy
the Phils has sovereignty and jurisdiction. (Sec 2, PD offender is an offender crew or a
No. 532) outsider passenger of the
vessel
Piracy in high seas – jurisdiction of any court where
offenders are found or arrested because piracy is a PD 532 (ANTI-PIRACY AND ANTI-HIGHWAY
crime not against any particular state but against all ROBBERY LAW OF 1974)
mankind (Hostis Humanis Generis).
Vessel – any vessel or watercraft used for (a)
Piracy in internal waters – jurisdiction of Philippine transport of passengers and cargo or (b) for fishing
courts
Punishes the act of AIDING OR ABETTING
For purposes of the Anti-Fencing Law, piracy is part of PIRACY
robbery and theft.
Requisites
Piracy is a CONTINUING CRIME, hence the offense
may begin in the high seas and end in the territorial 1. knowingly aids or protects pirates;
waters of a state. 2. acquires or receives property taken by such pirates,
or in any manner derives any benefit;
Those who pose as passengers or crew and then rob 3. directly or indirectly abets the commission of piracy
the passengers are still pirates. They include legitimate
passengers or crews who conspire with the pirates. Note: Under PD 532, piracy may be committed even by
passenger or member of the complement of the vessel.
Considering that the essence of piracy is one of
robbery, any taking in a vessel with force upon things Article 123. Qualified Piracy
or with violence or intimidation against person is
employed will always be piracy. It cannot co-exist with Qualifying Circumstances of Piracy:
the crime of robbery. Robbery, therefore, cannot be a. whenever they have seized a vessel by boarding or
committed on board a vessel. But if the taking is firing upon the same;
without violence or intimidation on persons of force b. whenever the pirates have abandoned their victims
upon things, the crime of piracy cannot be committed, without means of saving themselves; or
but only theft. c. whenever the crime is accompanied by murder,
homicide, physical injuries or rape. (cannot be
PIRACY MUTINY punished as separate crimes, nor can they be
Robbery or forcible unlawful resistance to complexed with piracy)
depredation on the a superior, or the
high seas, without raising of commotions Mutiny is qualified under the following
lawful authority and and disturbances on circumstances:
done with animo board a ship against (1) When the offenders abandoned the victims without
furandi and in the the authority of its means of saving themselves; or
spirit and intention of commander (2) When the mutiny is accompanied by rape, murder,
universal hostility homicide, or physical injuries.
Intent to gain is an Intent to gain is not
element an element Note that the first circumstance which qualifies piracy
Attack from outside. Attack from inside. does not apply to mutiny because the mutineers being
Offenders are Offender is a member already in the vessel cannot seize the vessel by
strangers to the of the complement or boarding or firing upon the same.
vessel a passenger of the
vessel  Parricide or infanticide should be included (accdg
to Judge Pimentel)
 The rape/murder/homicide/ physical injuries must
PIRACY ROBBERY ON HGH have been committed on the passengers or on the
SEAS complement of the vessel
offender is an offender is a member  QUALIFIED PIRACY – a SPECIAL COMPLEX
outsider of the complement or CRIME punishable by reclusion perpetua to death
a passenger of the regardless of the number of victims.
vessel
In both, there is intent to gain and the manner Republic Act No. 6235 (The Anti Hi-Jacking Law) 11
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Anti hi-jacking is another kind of piracy which is
committed in an aircraft. In other countries, this crime Q: The pilots of the Pan Am aircraft were accosted
is known as aircraft piracy. by some armed men and were told to proceed to
the aircraft to fly it to a foreign destination. The
Four situations governed by anti hi-jacking law: armed men walked with the pilots and went on
board the aircraft. But before they could do
(1) usurping or seizing control of an aircraft of anything on the aircraft, alert marshals arrested
Philippine registry (including helicopters) while it is them. What crime was committed?
in flight,or compelling the pilots thereof to change
the course or destination of the aircraft (hi-jacking A: The criminal intent definitely is to take control
of Phil Aircraft) of the aircraft, which is hi-jacking. It is a question
now of whether the anti-hi-jacking law shall
Hi-jacking of Phil Aircraft, How Committed govern.

a. Compelling pilot to change destination. The anti hi-jacking law is applicable in this case.
b. Usurping or seizing control while the plane is Even if the aircraft is not yet about to fly, the
in flight. requirement that it be in flight does not hold true
when in comes to aircraft of foreign registry. Even
The important thing is that before the anti hi- if the problem does not say that all exterior doors
jacking law can apply, the aircraft must be in flight. are closed, the crime is hi-jacking. Since the
If not in flight, whatever crimes committed shall be aircraft is of foreign registry, under the law, simply
governed by the Revised Penal Code. The usurping or seizing control is enough as long as
correlative crime may be one of grave coercion or the aircraft is within Philippine territory, without
grave threat. If somebody is killed, the crime is the requirement that it be in flight.
homicide or murder, as the case may be. If there
are some explosives carried there, the crime is Note, however, that there is no hi-jacking in the
destructive arson. Explosives are by nature pyro- attempted stage. This is a special law where the
techniques. Destruction of property with the use attempted stage is not punishable.
of pyro-technique is destructive arson. If there is
illegally possessed or carried firearm, other special Q: A Philippine Air Lines aircraft is bound for
laws will apply. Davao. While the pilot and co-pilot are taking their
snacks at the airport lounge, some of the armed
Plane is in flight after all exterior doors are men were also there. The pilots were followed by
closed following embarkation until opened for these men on their way to the aircraft. As soon as
disembarkation. This means that there are the pilots entered the cockpit, they pulled out their
passengers that boarded. So if the doors are firearms and gave instructions where to fly the
closed to bring the aircraft to the hangar, the aircraft. Does the anti hi-jacking law apply?
aircraft is not considered as in flight. The aircraft
shall be deemed to be already in flight even if its A: No. The passengers have yet to board the
engine has not yet been started. aircraft. If at that time, the offenders are
apprehended, the law will not apply because the
(2) usurping or seizing control of an aircraft of foreign aircraft is not yet in flight. Note that the aircraft is
registry while within Philippine territory, or of Philippine registry.
compelling the pilots thereof to land in any part of
Philippine territory (hi-jacking of Foreign Aircraft); Q: While the stewardess of a Philippine Air Lines
Hi-jacking of Foreing Aircraft, How Committed plane bound for Cebu was waiting for the
a. Compelling the plane to land in the Phils (not passenger manifest, two of its passengers seated
be the point of destination) near the pilot surreptitiously entered the pilot
b. Usurping or seizing control of the plane even if cockpit. At gunpoint, they directed the pilot to fly
not in flight. the aircraft to the Middle East. However, before
the pilot could fly the aircraft towards the Middle
If the aircraft is of foreign registry, the law East, the offenders were subdued and the aircraft
does not require that it be in flight before the landed. What crime was committed?
anti hi-jacking law can apply. This is because
aircrafts of foreign registry are considered in A: The aircraft was not yet in flight. Considering
transit while they are in foreign countries. that the stewardess was still waiting for the
Although they may have been in a foreign country, passenger manifest, the doors were still open.
technically they are still in flight, because they Hence, the anti hi-jacking law is not applicable.
have to move out of that foreign country. So even Instead, the Revised Penal Code shall govern. The
if any of the acts mentioned were committed while crime committed was grave coercion or grave
the exterior doors of the foreign aircraft were still threat, depending upon whether or not any serious
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open, the anti hi-jacking law will already govern. offense violence was inflicted upon the pilot.
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substance was not done in accordance with the
Qualifying Cicumstances (par 1 & 2) rules and regulations prescribed by the Air
Transportation Office in the matter of shipment of
1. Firing upon the pilot, member of the crew or such things. The Board of Transportation provides
passenger of the aircraft (For ‗firing upon‘ to the manner of packing of such kind of articles, the
qualify the offense, the offender must have quantity in which they may be loaded at any time,
actually fired his weapon. Mere attempt is not etc. Otherwise, the anti hi-jacking law does not
enough. For ‗firing upon‘ to qualify the offense, apply.
the offender need not succeed in hitting the
pilot, crew member or passenger) However, under Section 7, any physical injury or
2. exploding or attempting to explode any bomb damage to property which would result from the
or explosive to destroy the aircraft; or carrying or loading of the flammable, corrosive,
3. the crime is accompanied by murder, homicide, explosive, or poisonous substance in an aircraft,
serious physical injuries, or rape the offender shall be prosecuted not only for
violation of Republic Act No. 6235, but also for the
Q: In the course of the hi-jack, a passenger or crime of physical injuries or damage to property,
complement was shot and killed. What crime or as the case may be, under the Revised Penal Code.
crimes were committed? There will be two prosecutions here. Other than
this situation, the crime of physical injuries will be
A: The crime remains to be a violation of the anti absorbed. If the explosives were planted in the
hi-jacking law, but the penalty thereof shall be aircraft to blow up the aircraft, the circumstance
higher because a passenger or complement of the will qualify the penalty and that is not punishable
aircraft had been killed. The crime of as a separate crime for murder. The penalty is
homicide or murder is not committed. increased under the anti hi-jacking law.

Q The hi-jackers threatened to detonate a bomb in All other acts outside of the four are merely
the course of the hi-jack. What crime or crimes qualifying circumstances and would bring about
were committed? higher penalty. Such acts would not constitute
another crime. So the killing or explosion will only
A: Again, the crime is violation of the anti hi- qualify the penalty to a higher one.
jacking law. The separate crime of grave threat is
not committed. This is considered as a qualifying Note: There is no attempted or frustrated hi-jacking
circumstance that shall serve to increase the even if the hi-jackers are overpowered.
penalty.

(3) carrying or loading on board an aircraft operating R.A. 9372. AN ACT TO SECURE TO SECURE
as a public utility passenger aircraft in the THE STATE AND PROTECT OUR PEOPLE
Philippines, any flammable, corrosive, explosive, or FROM TERRORISM
poisonous substance; and (THE HUMAN SECURITY ACT OF 2007)
(4) loading, shipping, or transporting on board a cargo
aircraft operating as a public utility in the I. It created the crime known as terrorism and
Philippines, any flammable, corrosive, explosive, or declared it to be ―a crime against the Filipino
poisonous substance if this was done not in people, against humanity, and against the law of
accordance with the rules and regulations set and nations‖.
promulgated by the Air Transportation Office on
this matter. II. Defines the crime of terrorism to be the commission
of ―any of the crimes of :
As to numbers 3 and 4 of Republic Act No. 6235,
the distinction is whether the aircraft is a A. Under the Revised Penal Code.
passenger aircraft or a cargo aircraft. In both i. Piracy in general and Mutiny in the High Seas
cases, however, the law applies only to public or in the Philippine Waters
utility aircraft in the Philippines. Private aircrafts ii. rebellion
are not subject to the anti hi-jacking law, in so far iii. Coup d‘etat
as transporting prohibited substances are iv. Murder
concerned. v. Kidnapping and Serious Illegal Detention

If the aircraft is a passenger aircraft, the B. Under Special Laws

prohibition is absolute. Carrying of any prohibited, i. Arson under P.D. 1613
flammable, corrosive, or explosive substance is a ii. Violation of R.A. 6969 ( Toxic Substance ad
crime under Republic Act No. 6235. But if the Nuclear Waste Control)
aircraft is only a cargo aircraft, the law is violated iii. R.A. 5207 ( Atomic Energy Regulatory and
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only when the transporting of the prohibited Liability Act of 1968)
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iv. Hijacking communication, message, conversation,
v. Piracy in Phil. Waters and Highway Robbery discussion, or of spoken or written words
vi. P.D. 1866 ( Possession and Manufacture of between members of (i) a judicially declared
Firearms/explosives) thereby showing and and outlawed terrorist organization or
creating a condition of widespread and association or group, or (ii) of any person
extraordinary fear and panic among the charged with or suspected of the crime of
populace, in order to coerce the government terrorism or conspiracy to commit terrorism
to give in to an unlawful demand.
1. The Judicial Authorization can only be
III. Requirements for Terrorism issued by the Court of Appeals (a) upon a
written application filed by a police or law
A. The accused (maybe a single individual or a enforcement official or members of his
group) must commit any of the enumerated team and (b). after an ex parte hearing
crimes establishing (c). probable cause that
terrorism/conspiracy to commit terrorism
B. There results a condition of widespread and has been committed, or is being
extraordinary fear and panic among the committed, or is about to be committed (
populace note that the wording is not attempted)
i. The extent and degree of fear and panic,
including the number of people affected in 2. The applicant must have been authorized in
order to meet the term ―populace‖, are writing to file the application by the Anti
questions of facts to be determined by the Terrorism Council (The Body created to
courts and on a case to case basis. implement the law and assume
ii. Is the term ―populace‘ to be interpreted as responsibility for the effective
referring to the local inhabitants where the implementation of the anti-terrorism[policy
acts were committed, or does it refer to of the country)
the national population?
3. The Judicial Authority is effective for a
C. The purpose of the accused must be to coerce maximum period not to exceed 30 days
the government to give into an unlawful from date of receipt of the written order
demand and may be extended for another similar
i. The word ―demand‖ is too broad as to cover period
not only political, criminal or monetarial
demands but also those which maybe B. Punishes the act of failure to notify the person
categorized as social or economic. This subject of the surveillance, monitoring or
however is qualified by the word interception, if no case was filed within the 30
―unlawful‖. day period/life time of the Order of Court
authorizing the surveillance
IV. Other Acts/Persons Liable C. Punishes any person who conducts any
A. Conspiracy to commit terrorism. The penalty is unauthorized or malicious interceptions and or
the same as terrorism itself (i.e. 40 years of recording of any form of communications,
imprisonment) messages, conversations, discussions or
spoken or written words
B. Accomplices - he cooperates in the execution of
either terrorism or conspiracy to commit VI. Provides for a Judicial Declaration of Terrorists and
terrorism by previous or simultaneous acts Outlawed organization, association, or group of
(Penalty is 17 yrs. 4 months and one day to 20 persons, by any RTC upon application by the DOJ
years) and upon prior notice to the group affected.

C. Accessory - The acts punished are the same as VII. Procedure when a suspected terrorist is arrested
that under Article 19 of the RPC. The penalty
is 10 yrs. And one day to 12 years A. A suspected terrorist maybe arrested by any
law enforcement personnel provided:
1. The law however adopts the absolutory 1. The law enforcement agent was duly
cause of exemption of accessories from authorized in writing by the Anti Terrorism
liability with respect to their relatives Council
2. The arrest was the result of a surveillance
V. Surveillance of Suspects and Interception and or examination of bank deposits
Recording of Communications
B. Upon arrest and prior to actual detention, the
A. Authorizes the grant of Judicial Authorization to law enforcement agent must present the
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listen, intercept, and record, any suspected terrorist before any judge at the
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latter‘s residence or office nearest the place of
arrest, at any time of the day or night. The 1. Failure to keep official logbook detailing the
judge shall, within three days, submit a written name of the person arrested the date and
report of the presentation to the court where time of initial admission for custody and
the suspect shall have been charged. arrest; state of his health; date and time
of removal from his cell, and his return
C. Immediately after taking custody of a person thereto; date and time of visits and by
charged or suspected as a terrorist, the police whom; all other important data bearing on
or law enforcement personnel shall notify in his treatment while under arrest and
writing the judge of the nearest place of custody
apprehension or arrest, but if the arrest is
made during non-office days or after office 2. Failure to promptly issue a certified true
hours, the written notice shall be served at the copy of the entries of the log book
nearest residence of the judge nearest the
place of arrest C. Using threat, intimidation, coercion, inflicting
physical pain, or torment or mental emotional,
D. Failure to notify in writing is punished by 10 moral or psychological pressure which shall
years and one day to12 years of imprisonment vitiate the free will

VIII. Period of Detention has been extended to three D. Punishes Infidelity in the Custody of Detained
days Persons
1. The penalty is 12 years and one day to 20
A. The three day period is counted from the years if the person detained is a prisoner
moment the person charged or suspected as by final judgment
terrorist has been apprehended or arrested, 2. The penalty is 6 years and one day to 12
detained and taken into custody years if the prisoner is a detention
prisoner
B. In the event of an actual or imminent terrorist
attack, suspects may not be detained for more E. Punishes the act of knowingly furnishing False
than three days without the written approval Testimony, forged document or spurious
of the Human Rights Commission, or judge of evidence in any investigation or hearing under
the MTC RTC, Sandiganbayan or Court of the law (12 yrs and one day to 20 years)
Appeals nearest the place of arrest
X. Prosecution under the Law is a bar to another
C. If arrest was on a nonworking day or hour, the prosecution under the Revised Penal code or any
person arrested shall be brought to the other special law for any offense or felony which is
residence of any of the above named officials necessarily included in the offense charged under
nearest the place of arrest. the law

D. Failure to deliver the person charged or XI. If the suspect is acquitted he is entitled to
suspected as terrorists to the proper judicial; P500,000.00 for every day of detention without a
authority within three days is punished by 10 warrant of arrest.
years and one day to 12 years.
A. Any person who delays the release or refuses to
IX. Other Acts Punished As Offenses (punished by release the amount shall be punished by
imprisonment of 10 years and one day to 12 years) imprisonment of 6 months
which acts are related to the arrest/detention of
suspected terrorists XII. Provisions on the Identity of the Informant

A. Violation of the rights of a person detained A. The officer to whom the name of the suspect
1. Right to be informed of the nature and was first reveled shall record the real name
cause of the arrest; to remain silent; to and specific address of the informant and shall
counsel report the same to his superior officer who
2. To communicate and confer with counsel at shall in turn transmit the information to the
any time without restriction Congressional Oversight Committee within 5
3. To communicate at any time and without days after the suspect was placed under
restrictions with members of family or arrest, or his properties sequestered seized or
relatives and be visited by them frozen.
4. To avail of the services of a physician of
choice B. The data shall be considered confidential and
shall not be unnecessarily revealed until after
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B. Offenses relating to an official log book:
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the proceedings against the suspect shall have
been terminated. In its counterpart in Title IX (Crimes Against Personal
NOTE: It would seem that the confidentiality Liberty and Security), the offenders are private
of the informant‘s identity is not permanent persons.
but may be revealed, not like the provisions of
the Rules of Evidence which considers the Arbitrary Detention
confidentiality as permanent)
The term Detention Includes:
XIII. Territorial Application of the law: a. Lock up – actual deprivation of a person of his
liberty by confinement in a room or any enclosure.
The law applies to any person who commits an act b. Rendering him physically immobile even if the
covered by the law if committed: victim is not confined such as tying him to a post.
c. By placing physical or psychological restraint on
A. Within the terrestrial domain, interior waters, the freedom of locomotion or movement.
maritime zone and airspace of the Philippines
B. Inside the territorial limits of the Philippines Crimes which May Arise if a Person Detains
C. On board a Philippine ship or airship Another
D. Within any embassy, consulate, diplomatic a. Arbitrary Detention (Art 124, RPC)
premises belonging to or occupied by the b. Unlawful Arrest (Art 269, RCP)
Philippine government in an official capacity c. Arbitrary Detention (Art 125)
E. Against Philippine citizens or persons of d. Coercion (Art 286)
Philippine descent where their citizenship or e. Abduction (Art 342)
ethnicity was a factor in the commission of the f. Kidnapping or Illegal Detention (Art 267-268)
crime
F. Directly against the Philippine government. The crime of arbitrary detention assumes several
forms (classes of arbitrary detention)
XIV. The provisions of the law shall be automatically
suspended one month before and two months
after the holding of any election. (1) Detaining a person without legal grounds
(Arbitrary Detention Proper);
(2) Having arrested the offended party for legal
TITLE II grounds but without warrant of arrest, and the
CRIMES AGAINST THE FUNDAMENTAL LAWS OF public officer does not deliver (or delays in the
THE STATE delivery) the arrested person to the proper
judicial authority within the period of 12, 18, or 36
Crimes against the fundamental laws of the State hours, as the case may be; or
1. Arbitrary detention (Art. 124); (3) Delaying release by competent authority with
2. Delay in the delivery of detained persons to the same period mentioned in number 2.
the proper judicial authorities (Art. 125);
3. Delaying release (Art. 126); Note: Detention may either be intentional or through
4. Expulsion (Art. 127); negligence.
5. Violation of domicile (Art. 128);
6. Search warrants maliciously obtained and Article 124. Arbitrary Detention
abuse in the service of those legally obtained
(Art. 129); Elements
7. Searching domicile without witnesses (Art.
130); 1. Offender is a public officer or employee (whose
8. Prohibition, interruption, and dissolution of official duties include the authority to make an
peaceful meetings (Art. 131); arrest and detain persons);
9. Interruption of religious worship (Art. 132); 2. He detains a person;
and 3. The detention is without legal grounds.
10. Offending the religious feelings (Art. 133);
Meaning of absence of legal grounds
Crimes under this title are those which violate the Bill
of Rights accorded to the citizens under the 1. No crime was committed by the detained;
Constitution. Under this title, the offenders are public 2. There is no violent insanity of the detained person;
officers, except as to the last crime – offending the and
religious feelings under Article 133, which refers to any 3. The person detained has no ailment which requires
person; conspires with a public officer; becomes an compulsory confinement in a hospital.
accessory or accomplice. The public officers who may
be held liable are only those acting under supposed Persons Liable
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exercise of official functions, albeit illegally.
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Those vested with jurisdiction to order the detention of 3. Arrest of escapees, whether detention prisoner
another who is accused of committing a crime. or prisoner by final judgment.
Otherwise the crime is Illegal Detention. They Include:
a. Local Executive Officials GOOD FAITH ARREST – the legality of the arrest
b. Punong Barangay does not depend upon the judicial fact of a crime but
c. Judges upon the nature of the deed performed by the person
d. Prosecutors arrested, when its characterization as a crime may
e. Law Enforcement Agents reasonably inferred by the officer.
f. Commissioner on Immigration
g. Private Person in conspiracy with the public  Legality of arrest is not affected by the
officials or who participated as accomplices or subsequent conviction or acquittal of the accused.
accessories The liability of the officer is distinct from the
liability of the person arrested.
Legal Grounds for the Arrest and Detention of A  Arbitrary Detention under Art 124 may be
Person complexed with less serious or serious physical
a. Commission of crime injuries, or with attempted or frustrated
b. Violent insanity homicide/murder.
c. Ailment which requires compulsory  The penalty depends upon the length of the
confinement in a hospital detention. A greater penalty is imposed if the
period is longer
Essence of the Crime  In ADDITION, the arresting officer may be
held liable for violation of RA 7438 or the Law
NO warrant of arrest but a public officer arrests and Providing for the Rights of Person Arrested, under
detains a person without legal grounds or the arrest Investigation or Detained, if the officer:
does not fall under the situation of a warrantless a. Fails to immediately Mirandize the person
arrest. (inform the right to remain silent and to
counsel)
Valid warrantless arrest b. Takes his confession without Mirandizing him
or without the right having been validly waived
1. Arrest in Flagranti – When in the presence of c. Refuses visitation to the person arrested.
the arresting officer, the person arrested has
committed, is actually committing or attempting to  Arrest can be made without warrant because
commit an offense. rebellion is a continuing crime.
Time and place of the arrest is the time and place of
the commission of the crime EXCEPT in cases of HOT Periods of Detention Penalized
PURSUITS. 1. Detention has not exceeded 3 days
2. Detention has continued for more than 3 days
“In his presence” – when the officer sees the but not more than 15 days
offense being committed although at a distance, or 3. Detention has continued for more than 15
hear the disturbance created thereby and proceeds days but not more than 6 months
at once to the scene thereof, or when the offense 4. Detention exceeded 6 months
is continuing, or has not been consummated at the
time the arrest is made, the offense is said to be
committed in his presence. Distinction between arbitrary detention and
illegal detention
2. Arrest Based on Probable Cause – When an
offense has just in fact been committed and he has
1. In arbitrary detention --
probable cause to believe, based on personal
knowledge of facts and circumstances that the
The principal offender must be a public officer.
person to be arrested has committed it.
Civilians can commit the crime of arbitrary
detention (as principal) when they conspire with a
Personal Knowledge of facts and
public officer committing this crime, or become an
circumstances – based on interviews of
accomplice or accessory to the crime committed by
witnesses or complainant or based on facts
the public officer; and
gathered after conducting on-the-spot crime scene
investigation.
The offender who is a public officer has a duty
which carries with it the authority to detain a
There must be an immediacy between the time of
person.
the arrest and the time of the commission of the
crime.
2. In illegal detention --
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The principal offender is a private person. But a
public officer can commit the crime of illegal Article 125. Delay in the Delivery of Detained
detention when he is acting in a private capacity or Persons to the Proper Judicial Authorities
beyond the scope of his official duty, or when he
becomes an accomplice or accessory to the crime Elements
committed by a private person.
1. Offender is a public officer or employee;
The offender, even if he is a public officer, does 2. He detains a person for some legal ground;
not include as his function the power to arrest and
detain a person, unless he conspires with a public 3. He fails to deliver such person to the proper
officer committing arbitrary detention. judicial authorities within –
a. 12 hour for light penalties;
b. 18 hours for correctional penalties; and
Distinction between arbitrary detention and
c. 36 hours for afflictive or capital penalties.
unlawful arrest
 At the beginning, the detention is legal since it is in
(1) As to offender the pursuance of a lawful arrest.
In arbitrary detention, the offender is a public  This article does not apply if the arrest is with a
officer possessed with authority to make arrests. warrant. The situation contemplated here is an
arrest by virtue of some legal ground or valid
In unlawful arrest, the offender may be any warrantless arrest. This is known as citizen‘s
person. arrest.
(2) As to criminal intent If there is valid warrant of arrest, there is no time
limit specified except that the return must be made
In arbitrary detention, the main reason for within a reasonable time. The period fixed by law
detaining the offended party is to deny him of his under Article 125 does not apply because the
liberty. arrest was made by virtue of a warrant of arrest,
he can be detained indefinitely until case is
In unlawful arrest, the purpose is to accuse the decided or he post a bail for his temporary release.
offended party of a crime he did not commit, to
deliver the person to the proper authority, and to  However, the detention becomes arbitrary when
file the necessary charges in a way trying to the period thereof exceeds 12, 18 or 36 hours, as
incriminate him. the case may be, depending on whether the crime
is punished by light, correctional or afflictive
Note: When a person is unlawfully arrested, his penalty or their equivalent.
subsequent detention is without legal grounds.
 The public officer must cause a formal charge or
Q: A had been collecting tong from drivers. B, a application to be filed with the proper court before
driver, did not want to contribute to the tong. One 12, 18 or 36 hours lapse. Otherwise he has to
day, B was apprehended by A, telling him that he was release the person arrested.
driving carelessly. Reckless driving carries with it a
penalty of immediate detention and arrest. B was RATIONALE: To prevent any abuse resulting from
brought to the Traffic Bureau and was detained there confining a person without informing him of his offense
until the evening. When A returned, he opened the cell and without permitting him to go on bail.
and told B to go home. Was there a crime of arbitrary
detention or unlawful arrest? DELIVERY TO PROPER AUTHORITIES - filing the
appropriate charges with the proper judicial authorities.
A: Arbitrary detention. The arrest of B was only
incidental to the criminal intent of the offender to PROPER JUDICIAL AUTHORITIES – refers to the
detain him. But if after putting B inside the cell, he court of justice or judges of said courts vested with
was turned over to the investigating officer who judicial power to order the temporary detention or
booked him and filed a charge of reckless imprudence confinement of a person charged with having
against him, then the crime would be unlawful arrest. committed a public offense. It also includes
The detention of the driver is incidental to the prosecutor‘s office
supposed crime he did not commit. But if there is no
supposed crime at all because the driver was not Where to File Charges
charged at all, he was not given place under booking a. In Chartered Cities – Office of the City Prosecutor.
sheet or report arrest, then that means that the only Direct filing in court is not allowed.
purpose of the offender is to stop him from driving his b. In Provinces
jeepney because he refused to contribute to the tong. 1. Offense requires preliminary investigation 12
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file with the proper officer authorized to the officer was wounded and have himself be
conduct preliminary investigation (Provincial medically attended to.
Prosecutor)  The filing of the information in court beyond the
2. Offense does not require preliminary specified periods does not cure the illegality of
investigation – file with the MTC/MTTC. detention because the violation had already been
committed.
How to Count the Hours  Violation of Art 125 does not affect the legality of
confinement under a warrant subsequently issued
According to Sir Sagsago, the hours should be counted by a competent court.
from the time of arrest continuously and without  To prevent committing this felony, officers usually
interruption, including the hours of the night or non- ask accused to execute a waiver of Art. 125
office days. However, if the last hour ends on a non- which should be under oath and with assistance of
office hour, the charges shall be files upon the start of counsel. Such waiver is not violative of the
the next office hour. constitutional right of the accused

According to Ortega, the period stated herein does not LENGTH OF WAIVER
include the nighttime. It is to be counted only when o light offense – 5 days
the prosecutor‘s office is ready to receive the complaint o serious and less serious offenses – 7 to 10
or information. days (Judge Pimentel)

Under the Rule 114 of the Revised Rules of Court, the  If the offender is a private person – the crime is
arrested person can demand from the arresting officer ILLEGAL DETENTION under Art 267.
to bring him to any judge in the place where he was
arrested and post the bail here. Thereupon, the ARBITRARY DELAY IN DELIVERY
arresting officer may release him. The judge who DETENTION (124) OF DETAINED (125)
granted the bail will just forward the litimus of the case Detention is illegal Detention is legal in the
to the court trying his case. The purpose is in order to from the beginning beginning, but illegality
deprive the arrested person of his right to post the bail. starts from the
expiration of the
Under the Revised Rules of Court, when the person specified periods without
arrested is arrested for a crime which gives him the the persons detained
right to preliminary investigation and he wants to having been delivered to
avail his right to a preliminary investigation, he the proper judicial
would have to waive in writing his rights under authority
Article 125 so that the arresting officer will not
immediately file the case with the court that will
exercise jurisdiction over the case. If he does not want Article 126. Delaying Release
to waive this in writing, the arresting officer will have
to comply with Article 125 and file the case Acts punished
immediately in court without preliminary investigation.
In such case, the arrested person, within five days 1. Delaying the performance of a judicial or executive
after learning that the case has been filed in court order for the release of a prisoner;
without preliminary investigation, may ask for 2. Unduly delaying the service of the notice of such
preliminary investigation. In this case, the public order to said prisoner;
officer who made the arrest will no longer be liable for 3. Unduly delaying the proceedings upon any petition
violation of Article 125. for the liberation of such person.

Circumstances Considered in Determining Elements

Liability of Officer Detaining a Person Beyond
the Legal Period 1. Offender is a public officer or employee;
1. The means of communication 2. There is a judicial or executive order for the
2. The hour of arrest release of a prisoner or detention prisoner, or that
3. Other circumstances such as the time of surrender there is a proceeding upon a petition for the
and the material possibility of the prosecutor to liberation of such person;
make the investigation and file in time the 3. Offender without good reason delays –
necessary information. a. the service of the notice of such order to the
prisoner;
 The officer may set up insuperable cause as a b. the performance of such judicial or executive
defense such as failure to file on time due to order for the release of the prisoner; or
distance and lack of transportation to the nearest c. the proceedings upon a petition for the
court/prosecutor‘s office; fortuitous event; or that release of such person. 12
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 Wardens and jailers are the persons most likely to  If a Filipino who, after voluntarily leaving the
violate this provision. country, is illegally refused re-entry is considered a
 The penalty depends on the length of the delay i.e. victim of being forced to change address
12, 18, or 36 hours.  Threat to national security is not a valid ground to
expel or to compel one to change address
Persons Authorized to Order the Release of A
Person in Custody of the Law Q: Certain aliens were arrested and they were just put
1. The courts when on the first aircraft which brought them to the country
a. Detained person posts bail so that they may be out without due process of law.
b. Case is dismissed Was there a crime committed?
c. Accused is acquitted
d. Petition for habeas corpus is filed and the A: Yes. Expulsion.
court finds no valid reason to detain him.
2. Board of Pardon and Parole Upon the grant of Q: If a Filipino citizen is sent out of the country, what
Parole crime is committed?
3. Office of the President upon the grant of
Presidential Pardon or Amnesty A: Grave coercion, not expulsion, because a Filipino
4. Commissioner of the Board of Immigration and cannot be deported. This crime refers only to aliens.
Deportation
5. Office of the prosecutor with respect to cases they Violation of Domicile
are acting on if
a. No probable cause CASTLE DOCTRINE – there is a penal sanction for
b. Arrest is not proper the violation of a person‘s right to privacy of his home
c. There is meritorious ground (humanitarian or of the sanctity of his dwelling. A man‘s house is his
reasons) castle which the law protects.

Domicile is to be given a broader meaning as that of a

Article 127. Expulsion dwelling.

Acts punished Forms/Kinds of Violation of Domicile

1. Violation of Domicile Proper (Art 128)
1. Expelling a person from the Philippines;or 2. Search Warrant Maliciously Obtained and Abuse in
2. Compelling a person to change his residence. the Service of those Legally Obtained (Art 129)
3. Searching Domicile without Witnesses (Art 130)
Elements
Article 128. Violation of Domicile
1. Offender is a public officer or employee;
2. He either – Acts punished
a. expels any person from the Philippines; or
b. compels a person to change residence; 1. Entering any dwelling against the will of the owner
3. Offender is not authorized to do so by law. thereof;

 The right violated is the liberty of abode and of Lack of consent – not sufficient as the law
changing the same. requires that the offender‘s entry must be over the
 The essence of this crime is coercion but the owner‘s objection.
specific crime is ―expulsion‖ when committed by a
public officer. If committed by a private person, Against the will of owner – presupposes
the crime is grave coercion. opposition or prohibition by the owner, whether
 In Villavicencio v. Lukban, 39 Phil 778, the mayor express or implied and not merely absent of
of the City of Manila wanted to make the city free consent (e.g. door is closed though it is not locked,
from prostitution. He ordered certain prostitutes to oral objection of the owner, owner physically
be transferred to Davao, without observing due blocks entry).
processes since they have not been charged with
any crime at all. It was held that the crime If the door is open and the accused entered, this
committed was expulsion. mode is not committed.
 Only the court by final judgment can order a
person to change his residence. Owner need not be present when entry was made.
 Only the Chief Executive has the power to deport
undesirable aliens It includes surreptitious entry through an opening
 Crime does not include expulsion of undesirable not intended for the purpose.
aliens (PERSONA NON GRATA), destierro or when 12
sent to prison Justified Trespass Even without Court Order
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a. to prevent serious injury to himself, to an
occupant of a dwelling or a third person The order to leave must be given promptly. The
b. to stop an ongoing crime act of entertaining ratifies surreptitious entry.
c. to arrest a criminal in a hot pursuit
d. to render service to humanity or justice If the surreptitious entry had been made through
e. to seize or search the effects of a crime an opening not intended for that purpose, offender
is liable under the first mode since it is an entry
If the offender who enters the dwelling against the over the implied objection of the inhabitant.
will of the owner thereof is a private individual, the
crime committed is trespass to dwelling (Art Inhabitant may be the lawful possessor/occupant
280) using the premises as his dwelling.

2. Searching papers or other effects found therein Common elements

without the previous consent of such owner;
1. Offender is a public officer or employee;
Mere lack of consent – sufficient. 2. He is not authorized by judicial order to enter the
dwelling or to make a search therein for papers or
Even if he is welcome in the dwelling, it does not other effects. (like search warrant, warrant of
mean he has permission to search. arrest, writ of execution, writ of attachment).

Search is not just by looking through a room by Circumstances qualifying the offense (Special
the physical acts of opening rooms, opening of Aggravating Circumstances)
drawers, or handling or lifting of things and
articles. 1. If committed at nighttime; or
2. If any papers or effects not constituting evidence
There are instances when search without a warrant of a crime are not returned immediately after the
is considered valid, and, therefore, the seizure of search made by offender.
any evidence done is also valid. Outside of these,
search would be invalid and the objects seized Article 129. Search Warrants Maliciously
would not be admissible in evidence. Obtained, and Abuse in the Service of Those
(1) Search made incidental to a valid arrest; Legally Obtained
(2) Where the search was made on a moving
vehicle or vessel such that the exigency of the Acts punished
situation prevents the searching officer from
securing a search warrant; 1. Procuring a search warrant without just cause;
(3) When the article seized is within plain view of
the officer making the seizure without making Elements
a search therefore.
1. Offender is a public officer or employee;
If the offender is a private person, the crime would 2. He procures a search warrant;
be unjust vexation or theft if he takes things away. 3. There is no just cause.

When a public officer searched a person ―outside 2. Exceeding his authority or by using unnecessary
his dwelling‖ without a search warrant and such severity in executing a search warrant legally
person is not legally arrested for an offense, the procured.
crime committed by the public officer is either:
o grave coercion if violence or Elements
intimidation is used (Art 286), or
o unjust vexation if there is no 1. Offender is a public officer or employee;
violence or intimidation (Art 287) 2. He has legally procured a search warrant;
3. He exceeds his authority or uses unnecessary
Public officer without a search warrant cannot severity in executing the same.
lawfully enter the dwelling against the will of the
owner, even if he knew that someone in that SEARCH WARRANT – is an order in writing issued in
dwelling is in lawful possession of opium. the name of the People of the Philippines, signed by
the judge and directed to a peace officer, commanding
3. Refusing to leave the premises, after having him to search for personal property described therein
surreptitiously entered said dwelling and after and bring it before the court.
having been required to leave the same
Requisites for the Issuance of Search Warrant
Entry must be done surreptitiously; without this,
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A search warrant shall not issue except upon probable  Validity of the search warrant can be questioned
cause in connection with one specific offense to be only in two courts: where issued or where the case
determined personally be the judge after examining is pending. The latter is preferred for objective
under oath or affirmation of the complainant and the determination.
witnesses he may produce and particularly describing  Art 130 does not apply to searches of vehicles or
the place to be searched and the things to be seized other means of transportation.
which may be anywhere in the Philippines.  Search warrant under the Tariff and Customs Code
does not include dwelling house.
 Search warrant is valid for 10 days from its date of
issue. Article 131. Prohibition, Interruption, and
 The search is limited to what is described in the Dissolution of Peaceful Meetings
warrant, all details must be set forth with
particularity. Elements
 Example of a warrant maliciously obtained: the
applicant has no personal knowledge of the facts 1. Offender is a public officer or employee;
but makes it appear that he does; applicant 2. He performs any of the following acts:
concocts a story in that he has ulterior motives in a. prohibiting or interrupting, without legal
securing a search warrant. ground, the holding of a peaceful meeting, or
dissolving the same (e.g. denial of permit in
The act of executing an affidavit in support of the arbitrary manner);
application or of testifying falsely before the judge b. hindering any person from joining any lawful
are separate offenses of perjury. association, or from attending any of its
meetings;
 Examples of abuse in service of warrant: c. prohibiting or hindering any person from
o X, owner, was handcuffed while search was addressing, either alone or together with
going on others, any petition to the authorities for the
o Tank was used to ram gate prior to correction of abuses or redress of grievances.
announcement that a search will be made
o Persons who were not respondents were Acts punished
searched
o Searching places not specified in the warrant 1. Prohibiting or interrupting, without legal grounds,
o Seizing articles not mentioned in the warrant. the holding of a peaceful meeting, or by dissolving
The destruction of property or injuries arising from the same.
the violence or threat are separate offenses.
Grounds for prohibiting, interrupting or
 An exception to the necessity of a search warrant dissolving a meeting:
is the right of search and seizure as an incident to
a lawful arrest. 1. Lack of a required permit where the meeting is
 Plain view doctrine is inapplicable if the officer was to be held in a public place where peace and
not legally entitled to be in the place where the order will be affected, or when others are
effects where found. Since the entry was illegal, prevented from using the place. Example:
plain view doctrine does not apply. meeting in a street, or bridge or sidewalk

Article 130. Searching Domicile without The requirement of a permit is only for
Witnesses purposes of regulation but not as an exercise
of prohibitory powers. Thus, the refusal to
Elements issue a permit without any valid ground
constitutes prohibition of a peaceful meeting.
1. Offender is a public officer or employee;
2. He is armed with search warrant legally procured; 2. When the meeting constitutes a trespass to
3. He searches the domicile, papers or other private property
belongings of any person;
4. The owner, or any members of his family, or two 3, When the meeting is not peaceful as when it
witnesses residing in the same locality are not becomes chaotic or the participants are
present. enjoined to do acts of destruction of property
or acts of violence , or when the meeting
 Order of those who must witness the search becomes seditious
a. Homeowner
b. Members of the family of sufficient age and  The accused officer must be a stranger, not a
discretion participant in the meeting; otherwise his act
c. Responsible members of the community may either be unjust vexation or tumultuous 12
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 Dissolution is usually in the form of dispersal 131, and tumults and other disturbances, under
or by the arrest of the leaders or the speakers Article 153
 The government has a right to require a
permit before any gathering could be made. (1) As to the participation of the public officer
Any meeting without a permit is a proceeding
in violation of the law. That being true, a In Article 131, the public officer is not a
meeting may be prohibited, interrupted, or participant. As far as the gathering is concerned,
dissolved without violating Article 131 of the the public officer is a third party.
Revised Penal Code.
 If the permit is denied arbitrarily, Article 131 is If the public officer is a participant of the assembly
violated. If the officer would not give the and he prohibits, interrupts, or dissolves the same,
permit unless the meeting is held in a Article 153 is violated if the same is conducted in a
particular place which he dictates defeats the public place.
exercise of the right to peaceably assemble,
Article 131 is violated. (2) As to the essence of the crime
 At the beginning, it may happen that the
assembly is lawful and peaceful. If in the In Article 131, the offender must be a public officer
course of the assembly the participants and, without any legal ground, he prohibits,
commit illegal acts like oral defamation or interrupts, or dissolves a peaceful meeting or
inciting to sedition, a public officer or law assembly to prevent the offended party from
enforcer can stop or dissolve the meeting. The exercising his freedom of speech and that of the
person talking on a prohibited subject at a assembly to petition a grievance against the
public meeting contrary to agreement that no government.
speaker should touch on politics may be
stopped. The permit given is not a license to In Article 153, the offender need not be a public
commit a crime. officer. The essence of the crime is that of
 But stopping the speaker who was attacking creating a serious disturbance of any sort in a
certain churches in public meeting is a public office, public building or even a private place
violation of this article where a public function is being held.
 Those holding peaceful meetings must comply
with local ordinances. Example: Ordinance NOTE: The Provisions of Article 131 should be read in
requires permits for meetings in public places. conjunction with B.P. 880 otherwise known as the
But if a police stops a meeting in a private Public Assembly Act of 1985.
place because there‘s no permit, officer is
liable for stopping the meeting. B.P. 880: AN ACT ENSURING THE FREE
EXERCISE BY THE PEOPLE OF THEIR RIGHT
2. Hindering any person from joining any peaceful PEACEABLY TO ASSEMBLE AND PETITION THE
meeting, such as by threatening to arrest them, GOVERNMENT AND FOR OTHER PURPOSES
unless the meeting is that of criminal associations.
Example: joining the meeting of the CPP is not 1. This is known as ―The Public Assembly Act of l985‖
prohibited, but that of the NPA is prohibited..
II. Declares the policy of the state to ―the ensure the
3. Prohibiting or hindering another from addressing a free exercise of the right of the people to
Petition to the authorities for redress of grievances. peaceably assemble and petition the government
Provided the address is done in an orderly manner for redress of grievances, without prejudice to the
and there is no damage to public peace or order. rights of others to life, liberty and equal protection
of the law‖.
 If the offender is a private individual, the crime
is disturbance of public order III. Defines public assembly to mean: ‖any rally,
 Interrupting and dissolving a meeting of the demonstration, march, parade, procession or any
municipal council by a public officer is a crime other form of mass or concerted action held in a
against the legislative body and not punishable public place for the purpose of presenting a lawful
under this article. cause; or expressing an opinion to the general
public on any particular issue; or protesting or
Criteria to determine whether Article 131 would be influencing any state of affairs whether political,
violated: economic or social; or petitioning the government
(1) Dangerous tendency rule for redress of grievances‖
(2) Clear and present danger rule
A. Public place includes any highway, boulevard,
Distinctions between prohibition, interruption, avenue, road, street, bridge or other
or dissolution of peaceful meetings under Article thoroughfare, park, plaza square, an/or any
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open space of public ownership where the b). He may deny or modify but only on the
people are allowed access ground that there is imminent and
grave danger of a substantive evil
B. It does not cover assemblies for religious (i) The applicant must be informed in
purposes which shall be governed by local writing within 24 hours who may
ordinances and those by workers and laborers be heard or may contest it in a
resulting from labor disputes to be governed court of law
by the Labor Code and BP. 227
VI. Dispersal
IV. Establishes the policy of Maximum Tolerance to be
observed in dealing with public assemblies or in 1. No public assembly with a permit shall be
the dispersal thereof. It means the highest degree dispersed unless it becomes violent ( or when
of restraint from the military, police: and other it becomes seditious, or if held in a private
peace keeping authorities. property against the will of the owner who
requests for its dispersal because there is now
V. As to the requirement of a permit: a trespass to property)

A. A written permit shall be required for any 2. When the public assembly is held without a
person/persons to organize and hold a public permit where a permit is required it may be
assembly in a public place during any election peacefully dispersed
campaign period
Note: It is provided that ―tear gas ,smoke grenades,
B. No permit shall be required: water cannons, or any similar anti-riot device shall
not be used unless the public assembly is attended
i) if the public assembly shall be done or made by actual violence or serious threats of violence, or
in a freedom park duly established by law deliberate destruction of property
or ordinance
ii) If done or made in private property in which VII. Acts Punished include the following:
case only the consent of the owner or the
one entitled to its legal possession is 1. Holding of any public assembly without having
required first secured the written permit , or use of
iii). If done or made in the campus of a such permit for such purposes in any place
government owned and operated other than those set out in the permit.
educational institution which shall be However, the persons liable are the leader or
subject to the rules and regulations of said organizer, but not the participants
educational institution
iv). Political meetings or rallies held during any 2. Arbitrary and unjustified denial or modification
election campaign period of a permit by the Mayor or official acting in
his behalf
C. Procedure for issuance of a permit
i). A Written applications shall be filed with 3. Unjustified and arbitrary refusal to accept or
the office of the mayor at least five (5) acknowledge receipt of the application for a
working days before the scheduled public permit
assembly
ii). The Mayor‘s Office shall acknowledge in 4. Obstructing, impeding, disrupting or otherwise
writing the receipt of the application and denying the exercise of the right to peaceful
Posting of the application by the Mayor‘s assembly
office in a conspicuous place of the
city/municipal building 5. The unnecessary firing of firearms to disperse
the public assembly
a). If the application is acceptance the
application shall post it on the 6. Law enforcers who (i) refuse to provide
premises of the mayor and shall be assistance when requested by leaders or
deemed to have been filed organizers of public assemblies (ii) do not
wear proper and complete uniforms (iii) do not
iii) Action by the Mayor within 2 working days observe maximum tolerance (iv) carry firearms
from date of application . If they fail to act and (v) who use anti riot devises to disperse a
within two days, the permit shall be peaceful public assembly
deemed granted
7. The following acts are prohibited, if committed
a) He may grant within100 meters from the area of activity of
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the public assembly or on the occasion
thereof: D. Until a freedom park shall have been
a).carrying or a deadly or offensive weapon or established, all public parks and plazas of the
devise municipality/city concerned shall in effect be
b) carrying of bladed weapon and the like deemed freedom parks; no prior permit of
c). malicious burning of any object in the whatever kind shall be required to hold an
streets or thoroughfares assembly therein. The only requirement will be
d). carrying of fire arms by members of a law written notices to the police and the mayor‘s
enforcement unit office to allow proper coordination and orderly
e). interfering with or intentionally disturbing activities.
the holding of a public assembly by the
use of a motor vehicle, its horns and loud REMEDIES IN CASE OF VIOLATION OF
sound systems FUNDAMENTAL RIGHTS

VIII. As interpreted in BAYAN vs. EDUARDO ERMITA ( 1. Criminal Case – Title II

April 25, 2006) 2. Civil Case – Art 32
3. Special Extraordinary Remedy
A. BP. 880 is constitutional. It is not an absolute
ban of public assemblies but simply a a. PETITION FOR WRIT OF HABEAS
regulation of the time, place and manner of CORPUS – present the body of a person
the holding of public assemblies. detained and explained why detained and why
he should be further detain.
1. It is a ―content neutral‖ not ―content-based‖
regulation. b. PETITION FOR WRIT OF AMPARO –
amparo came from the word ―amparant‖ which
Note: ―Content-neutral regulations‖ are means to protect.
those imposed without reference to the 1. Amparo Libertat – to protect, similar to
contents of the speech. They are tests habeas corpus
demanding standards and need only a 2. Amparo contra legis – to compel judicial
substantial government interest to support review of constitutionality of statute
them. ―Content-based regulations‖ are 3. Amparo Casacion – to compel judicial
those imposed because of the contents of review of constitutionality of judicial
the speech. They are censorial and bear a decisions
heavy presumption of constitutional 4. Amparo Administrativo – judicial review of
invalidity. They are subject to the test of administrative action
over breadth and vagueness. 5. Amparo agrario – protect rights of
peasants
2. It is not over broad as it regulates the
exercise to peaceful assembly and petition Note: 2 to 5 are covered by certiorari.
only to the extent needed to avoid a clear
and present danger of the substantive Under Philippine Jurisdiction, WRIT OF
evils Congress ahs the right to prevent AMPARO is limited.

3. There is no prior restraint, since the content The petition for a writ of amparo is a remedy
of the speech is not relevant to the available to any person whose right to life,
regulation liberty and security is violated or threatened
with violation by an unlawful act or omission.
4. The delegation of powers to the Mayor
provides a precise and sufficient standard-
the clear and present danger test Who Violates

B. Rallyists who can show the police an application Public official or employee, or of a private
duly filed on a given date can, after two days individual or entity.
from said date, rally in accordance with their
application without the need to show a permit, Coverage
the grant of the permit being then presumed
under the law, and it will be the burden of the a. extralegal killings (e.g. killings without due
authorities to show that there has been a process or judicial safeguards, i.e.
denial of the application salvage)
b. enforced disappearances
C. The so called calibrated preemptive response b.1. arrest, detention, abduction by 13
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private individual with direct acquiescence Department of Justice for admission to the
of government Witness Protection, Security and Benefit
b.2. in case where a person is missing, Program, pursuant to Republic Act No. 6981.
state‘s refusal to disclose whereabouts The court, justice or judge may also refer the
b.3. refusal to acknowledge deprivation witnesses to other government agencies, or to
of liberty accredited persons or private institutions
c. threats – not limited to actual threat but capable of keeping and securing their safety.
may be future threat
It may be filed as independent petition in RTC
Note: The petition need not specify a where act was committed. It may be filed as a
particular relief. The petitioner may asks for motion in a criminal case. If filed prior to the
reliefs he believes appropriate in his case or he filing of the criminal case, it may be
can ask for general prayer. consolidated in the criminal case subsequently
filed.
Interim Reliefs
c. PETITION FOR WRIT OF HABEAS DATA –
(a) Temporary Protection Order. to compel any person to produce any
information he has in his custody like secret
dossiers (compilation of any and all
The court, justice or judge, upon motion or
information even if some are fabricated
motu proprio, may order that the petitioner or
against a person)
the aggrieved party and any member of the
immediate family be protected in a
government agency or by an accredited
person or private institution capable of keeping Crimes In Violation of the Freedom of Religion
and securing their safety. If the petitioner is
an organization, association or institution, the Article 132. Interruption of Religious Worship
protection may be extended to the officers
Concept
involved.
The crime committed by any public officer or employee
It is also seen in VAWC (Violence Against who shall prevent or disturb the manifestations or
Women and Children) ceremonies of any religion.

(b) Inspection Order Elements

The court, justice or judge, upon verified 1. Offender is a public officer or employee;
motion and after due hearing, may order any 2. Religious ceremonies or manifestations of any
person in possession or control of a designated religious are about to take place or are going on;
land or other property, to permit entry for the 3. Offender prevents or disturbs the same.
purpose of inspecting, measuring, surveying,
or photographing the property or any relevant Qualifying Circumstances
object or operation thereon. 1. violence
2. threats
(c) Production Order
Notes
 Manifestation or ceremonies refer to the rituals
The court, justice or judge, upon verified
or rites or practices such as the holding of a mass
motion and after due hearing, may order any
or religious service, baptisms and other sacraments
person in possession, custody or control of any
or prayer meetings.
designated documents, papers, books,
o They may be unorthodox such as crying,
accounts, letters, photographs, objects or
dancing, gyrating or with the use of props
tangible things, or objects in digitized or
o They extend to all kinds of worships so long as
electronic form, which constitute or contain
these are not indecent or violative of laws or
evidence relevant to the petition or the return,
public morals
to produce and permit their inspection,
 The term any religion is broad enough to include
copying or photographing by or on behalf of
not only the institutional religions, whether
the movant.
Christian or not
 Reading of Bible and then attacking certain
(d) Witness Protection Order churches in a public plaza is not a ceremony or
manifestation of religion, but only a meeting of a
The court, justice or judge, upon motion or religious sect. But if done In private home, it‘s a 13
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 Religious Worship includes people in the act of Prohibition, Crime Public If not by
performing religious rites for a religious ceremony Interruptio against officers, public
or a manifestation of religion. Examples: mass, n and the officer
baptism, marriage Dissolution fundame outsider =tumults
 X, a private person, boxed a priest while the priest of ntal law s
was giving homily and maligning a relative of X. is Peaceful of the
X liable? X may be liable under Art. 133 (Offending Meeting state
religious feelings) because X is a private person. (131)
 If the prohibition or disturbance is committed only Interrup- Crime Public If by
in a meeting or rally of a sect, it would be tion of against officers, insider
punishable under Art 131. Religious the =unjust
Worship fundame outsider vexation
Article 133. Offending the Religious Feelings (132) ntal law s
of the if not
Concept or essence state religious
=tumult
The crime committed by any person i.e. a public officer or alarms
or a private person, who performs acts notoriously
offensive to the feelings of the faithful which are if not
committed either: (i) in a place dedicated to religious notoriously
worship or (ii) during the celebration of any religious offensive
ceremony. =unjust
vexation
Elements Offending Crime Public if not
the against officers, tumults
1. Acts complained of were performed Religious public =alarms
a. in a place devoted to religious worship (not Feeling order Private and
necessarily that there is a religious ceremony) (133) persons scandal
or
b. during the celebration of any religious outsider If meeting
ceremony. s illegal at
2. The acts must be notoriously offensive to the onset
feelings of the faithful. =inciting
to
RELIGIOUS CEREMONIES – are those religious acts sedition
performed outside of a church, such as procession and or
special prayers for burying dead person but NOT prayer rebellion
rallies.

Acts notoriously offensive to the feelings of the faithful

- is one which ridicules or makes fun of a practice,
tenet, dogma, ritual or belief as mocking or scoffing or TITLE III
attempting to damage an object of religious CRIMES AGAINST PUBLIC ORDER
veneration; otherwise the offense is unjust vexation.
These may be oral or written statements or actions. Crimes against public order
1. Rebellion or insurrection (Art. 134);
 May be committed by a public officer or a private 2. Conspiracy and proposal to commit rebellion
individual. (Art. 136);
 Whether the act is offensive is to be viewed from 3. Disloyalty to public officers or employees (Art.
the members of the religious group involved. 137);
 There must be deliberate intent to hurt the feelings 4. Inciting to rebellion (Art. 138);
of the faithful, mere arrogance or rudeness is not 5. Sedition (Art. 139);
enough. 6. Conspiracy to commit sedition (Art. 141);
 Example of religious ceremony (acts performed 7. Inciting to sedition (Art. 142);
outside the church): processions and special 8. Acts tending to prevent the meeting of
prayers for burying dead persons but NOT prayer Congress and similar bodies (Art. 143);
rallies 9. Disturbance of proceedings of Congress or
similar bodies (Art. 144);
10. Violation of parliamentary immunity (Art. 145);
CRIME NATURE WHO IF 11. Illegal assemblies (Art. 146);
OF ARE ELEMENT 12. Illegal associations (Art. 147); 13
CRIME LIABLE MISSING 13. Direct assaults (Art. 148); 2

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14. Indirect assaults (Art. 149); body of land, naval, or other armed
15. Disobedience to summons issued by Congress, forces; or
its committees, etc., by the constitutional b. to deprive the Chief Executive or
commissions, its committees, etc. (Art. 150); Congress, wholly or partially, of any of
16. Resistance and disobedience to a person in their powers or prerogatives.
authority or the agents of such person (Art.
151); Historical Concept
17. Tumults and other disturbances of public order
(Art. 153); Rebellion is considered as the last remedy of an
18. Unlawful use of means of publication and oppressed people against an oppressive or tyrannical
unlawful utterances (Art. 154); ruler, as a heroic and noble fight to bring about a
19. Alarms and scandals (Art. 155); change in the social, political and social order for the
20. Delivering prisoners from jails (Art. 156); better. Thus several rebellions or revolutions are
21. Evasion of service of sentence (Art. 157); glorified and considered as historical events such as:
22. Evasion on occasion of disorders (Art. 158); the American Revolution which brought the birth of the
23. Violation of conditional pardon (Art. 159); and USA; the French Revolution which brought an end to
24. Commission of another crime during service of monarchial governments and the rights of Kings; the
penalty imposed for another previous offense Philippine Revolt against Spain.
(Art. 160).
This explains why traditionally rebellion was given a not
The crimes involve political crimes; those crimes so-high penalty. However, the penalty has been
affecting legislative bodies and legislative officers; increased to deter rebels so much so that this blunted
crimes against public officers and crimes causing the ―noble and heroic character‖ of rebellion and has
disturbance of public peace and order. instead been considered as affecting national security.

Political Crimes Proper - refer to the crimes of Rebellion vs. Insurrection

rebellion, coup d‘ etat, sedition and their derivative
lesser offenses of conspiracy, proposal, and inciting. Rebellion is more frequently used where the object of
There used to be a crime known as ―subversion‖ the movement is completely to overthrow and
penalized by martial law decrees but these have been supersede the existing government. It is a crime of the
repealed so that subversion is a non-existent crime. masses, of the multitude.

They are those directly aimed against the political Insurrection is more commonly employed in
order, as well as such common crimes as may be reference to a movement which seeks merely to effect
committed to achieved a political purpose. The decisive some change of minor importance, or to prevent the
factor is the intent ot motive. exercise of governmental authority with respect to
particular matters of subjects (Reyes, citing 30 Am. Jr.
Crimes of Political Coloration – common crimes in 1). It is the localized version of rebellion.
furtherance of political crimes.
How Committed:
Principles Include
 Political crimes are transitory and continuing By Rising Publicly and Taking Up Arms Against
 That of absorption of common crimes with political the Government
coloration, except in the case of sedition. The
offenses absorbed include offenses with higher  It requires a multitude of people. It aims to
penalties and offenses penalized under special laws overthrow the duly constituted government. It
 They maybe committed in times of war and in does not require the participation of any member
times of peace of the military or national police organization or
public officers and generally carried out by
Article 134. Rebellion/Insurrection civilians. Lastly, the crime can only be committed
through force and violence. Rebellion may be
Article 134. Rebellion or Insurrection committed even without a single shot being fired.
No encounter needed. Mere public uprising with
Elements arms enough. If there is no public uprising, the
crime is direct assault in the first form.
1. There is a public uprising AND taking arms
against the government;  This connotes a civil uprising involving the
2. The purpose of the uprising or movement is – masses, a sizable number of people seeking to
a. to remove from the allegiance to the change the established order through force and
government or its laws Philippine violence. The movement is not a passive
territory or any part thereof, or any movement, not just a propaganda war but it
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involves actual fighting with government soldiers
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or policemen, the destruction of public property, b) illegal possession of firearms in furtherance
kidnapping, extortion. of rebellion is absorbed by the crime of
 Modern rebellion however is not confined to rebellion
just an open fight with the government as rebels
resort to all means to achieve their purpose. These c) a private crime may be committed during
include the so called ‖Above Ground‖, or using rebellion. Rape, even if not in furtherance of
legitimate means such as formation of associations rebellion cannot be complexed with rebellion.
or groups sympathetic to the cause of the rebels
among the various sectors of society, such as from 2. Separate crimes: those committed for private
students, laborers, farmers; intellectuals and purposes (without political motivation) PP vs.
professionals. This is coupled by the so called Geronimo
―Under Ground Means” or the use of violence.
a.)if killing or robbing were done for private
Purposes of Rebellion are always political: purposes of for profit, without any political
motivation, the crime would be separately
1. To remove from the allegiance to the government or punished and would not be embraced by
its laws, the territory of the republic or any part rebellion (PP vs. Fernando)
thereof.
3. Is the principle of Complexing applicable?
a. This may either be a complete overthrow of Not under the PP. vs. Hernandez and Enrile vs.
the existing government to be replaced by that Salazar decisions which have not yet been
of the rebels. This is often called a ―power overturned.
grab‖. Examples are the present Communist
Rebellion a). In Gonzales vs. Abaya ( 449 SCRA 445) the
court, aside from recognizing coup d‘ etat as a
b. It may also be a partial overthrow or political crime, affirmed that common crimes
secession. A portion of the territory is taken committed in furtherance of a political crime,
away to form another government different are absorbed.
form and independent of the existing
government. An example is the MILF-MNLF Notes
Secession movement which is to establish a  Mere giving of aid or comfort is not criminal in the
Bangsa Republic in Mindanao and Palawan. case of rebellion. There must be actual
participation.
2. To remove any body of land, naval or other armed  One maybe convicted of rebellion even if he did
forces not engage in actual fighting as when he was in
conspiracy with the rebels and he acted as a
a. The Armed Forces are the instruments of courier, supplier of food and ammunitions and
power, the coercive portion of the government weapons
by which it carries out and imposes its will and  Public officer must take active part, because mere
preserves itself. Alienating the armed forces silence or omission is not punishable as
affects the very existence of the government. rebellion. No crime of misprision of rebellion.
This includes mutiny by soldiers.  in rebellion, it is not a defense that the accused
never took the oath of allegiance, or that they
3. To deprive the chief executive or congress, wholly never recognized the government
or partially, of any of their powers or prerogatives
(This is rarely done) Distinctions between rebellion and sedition
(1) As to nature: In rebellion, there must be taking up
NOTE: purpose of uprising must be shown but it is or arms against the government. In sedition, it is
not necessary that it be accomplished sufficient that the public uprising be tumultuous.

Rule when other crimes are committed during a (2) As to purpose: In rebellion, the purpose is always
Rebellion (known as crimes with political political. In sedition, the purpose may be political
coloration) or social. Example: the uprising of squatters
against Forbes park residents. The purpose in
1. Principle of Absorption: Rebellion absorbs other sedition is to go against established government,
crimes committed in furtherance of rebellion not to overthrow it.
whether they be of a lesser or higher penalty or
punished by special laws. Rebellion vs Treason
1. Rebellion is levying of war against the government
a) diverting public funds is malversation during peace time for any purpose mentioned in
absorbed in rebellion Art 134. While Treason is the levying of war
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against the government if performed to aid the strategy, threat, violence. It is never announced. It
enemy. is always calculated to be over in a matter of days.
2. Rebellion always involves taking up arms against 2. It is initiated principally by soldiers/PNP with or
the government. While treason may be committed without civilian support
by mere adherence to the enemy giving them aid 3. The purpose is either to seize state power ―Power
orcomfort. Grab‖ or to diminish state power i.e to destabilize
and assume a position where the coupters can
Rebellion vs Subversion dictate upon the government
1. Rebellion is a crime against public order. While 4. The centers of attack are the seat of power usually
subversion is a crime against national security. the presidential palace, military establishments,
2. In rebellion, there must be public uprising to communication facilities
overthrow the government. While in the latter,
being officers and ranking members of subversive Distinguished from Rebellion
groups constitute subversive.
1. As to the manner of commission: In rebellion it is
by rising publicly whereas coup makes use of
Article 134-A. Coup d' etat secrecy, stealth and strategy
2. As to the number of participants: rebellion involves
Concept a multitude of people whereas a coup involves a
selected group of members of the AFP/PNP
A swift attack directed against the duly constituted 3. As to civilian participation: in rebellion the rebels
authorities, or any military camp, or installation, are civilians whereas a coup is a move by
communications network, public utilities or facilities military/police members
needed for the exercise and continued possession of 4. As to purpose: rebellion is either to overthrow the
power, in order to seize or diminish state power. government or to secede whereas a coup my be to
cause destabilization or to paralyze the
It may be committed singly or collectively and does not government
require a multitude of people. The objective may not
be to overthrow the government but only to destabilize QUESTION: Can rebellion be complexed with coup d
or paralyze the government through the seizure of ‗etat?
facilities and utilities essential to the continued
possession and exercise of governmental powers. Article 135. Penalty for Rebellion, Insurrection
or Coup d‟etat
The participants are a compact group of people,
selected from the military/PNP or persons holding Persons Liable For Rebellion and Coup D‟etat
public office or employment, with or without civilian and their Penalties
support or participation.
Rebellion or Insurrection
Elements 1. Leaders – reclusion perpetua
a. any person who
1. Offender is a person or persons belonging to the i. promotes;
military or police or holding any public office or ii. maintains; or
employment; iii. heads a rebellion or insurrection
2. It is committed by means of a swift attack
accompanied by violence, intimidation, threat, 2. Participants – reclusion temporal
strategy or stealth; a. Any person who
3. The attack is directed against the duly constituted i. participates; or
authorities of the Republic of the Philippines, or ii. executes the commands of others in
any military camp or installation, communication rebellion or insurrection
networks, public utilities or other facilities needed
for the exercise and continued possession of 3. Deemed Leader – reclusion perpetua
power;
4. The purpose of the attack is to seize or diminish Coup d‟etat
state power. 1. Leaders – reclusion perpetua
a. any person who
Origin: Of French origin: it is said that it was Napoleon i. leads;
who first successfully staged and initiated it . ii. in any manner directs; or
iii. commands others to undertake coup d‘etat
Essential Features
2. Participants (gov‟t)– reclusion temporal
1. The success depends on the elements of surprise, a. any person in the gov‘t service who
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swiftness and secrecy. There is the use of stealth, i. participates; or
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ii. executes directions or commands of others  Only when the Communist advocates action and
in undertaking coup d‘etat actual uprising, war or otherwise, does he become
guilty of conspiracy to commit rebellion (PP vs.
3. Participants (not gov‟t)– prision mayor Hernandez)
a. any person not in the gov.t service who
i. participates;
ii. supports; Article 137. Disloyalty of Public Officers or
iii. finances; Employees
iv. abets; or
v. aids in undertaking a coup d‘etat Acts punished

4. Deemed Leader – reclusion perpetua 1. By failing to resist a rebellion by all the means in
their power (Suppose they are outnumbered and
Who shall be deemed the leader of the rebellion, out armed such that resistance is futile?);
insurrection or coup d‟etat in case he is 2. By continuing to discharge the duties of their
unknown? offices under the control of the rebels (This gives a
semblance of support to the rebels); or
Any person who in fact 3. By accepting appointment to office under rebels.
1. directed the others,
2. spoke for them,  Offender must be a public officer or employee.
3. signed receipts and other documents issued in  There must be actual rebellion for this crime to be
their name, or committed.
4. performed similar acts, on behalf of the rebels  It must not be committed in conspiracy with rebels
or coup plotters for this crime to be committed.
Related Crimes  If position is accepted in order to protect the
people, not covered by this article.
Article 136. Conspiracy and Proposal to Commit
Coup d' etat, Rebellion or Insurrection Article 138. Inciting to Rebellion or Insurrection

Conspiracy to commit rebellion Elements

Elements 1. Offender does not take arms or is not in open

hostility against the government;
1. Two or more persons come to an agreement to 2. He incites others to the execution of any of the
rise publicly and take arms against the acts of rebellion;
government; 3. The inciting is done by means of speeches,
2. for any of the purposes of rebellion; and proclamations, writings, emblems, banners or
3. they decide to commit it other representations tending to the same
end.(public means)
Proposal to commit rebellion.
 To incite is to stir up, to agitate, to encourage. The
Elements words of incitement should have been
premeditated and not just spontaneous outbursts
1. a person who has decided to rise publicly and take else it constitutes merely tumultuous disturbance.
arms against the government;  There is no inciting to coup d „etat.
2. for any of the purposes of rebellion; and  If rebellion is actually committed, the inciter
3. proposes its execution to some other person or becomes a principal by inducement. The inciter
persons should not have taken up arms otherwise he is a
participant in rebellion and the inciting is just part
 The penalty is higher if it relates to coup d ‗etat of the rebellion.
 Organizing a group of soldiers, soliciting  There is no misprision of rebellion or coup d
membership in, and soliciting funds for the etat
organization show conspiracy to overthrow the  Inciting must have been intentionally calculated to
gov‘t seduce others to rebellion
 The mere fact of giving and rendering speeches
favoring Communism would not make the accused Proposal to Inciting to Rebellion
guilty of conspiracy if there is no evidence that the Commit Rebellion (138)
hearers then and there agreed to rise up in arms (136)
against the gov‘t In both, the offender induces another to
 The advocacy of Communism or Communistic commit rebellion
theory is not a criminal act of conspiracy unless In both, the crime of rebellion should not be 13
converted into advocacy of action committed by the persons to whom it is proposed
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or who are incited
If they commit rebellion because of the 1. Offenders rise
proposal or inciting, the proponent or the one a. publicly; and
inciting may become a principal by inducement in b. tumultuously;
the crime of rebellion 2. Offenders employ force, intimidation, or other
The person who It is not required that means outside of legal methods;
proposes has decided the offender has decided 3. Purpose is to attain any of the following objects:
to commit rebellion to commit rebellion a. To prevent the promulgation or execution of
The person who The act of inciting is any law or the holding of any popular election;
proposes the done publicly b. To prevent the national government or any
execution of the provincial or municipal government, or any
crime uses secret public officer from freely exercising its or his
means functions or prevent the execution of an
administrative order;
Article 139. Sedition c. To inflict any act of hate or revenge upon the
person or property of any public officer or
Concept employee;
d. To commit, for any political or social end, any
This consist of making disturbances, commotions, or act of hate or revenge against private persons
resorting to acts of violence or destruction, or violation or any social classes;
of public peace and order, for the purpose of e. To despoil for any political or social end, any
expressing discontent, disagreement, disapproval, person, municipality or province, or the
opposition, criticism to: (i) a government policy, national government of all its property or any
program or course of action, (ii) or to a law, rule or part thereof.
regulation or (iii) to a government official or his official
action or (iv) to members of a social class.  TUMULTUOUS – if caused by more than 3
persons who are armed or provided with the
Sedition is the raising of commotions or disturbances in means of violence.
the State. Its ultimate objects is a violation of the
public peace or at least such a course of measures as  The acts maybe directed to private persons or their
evidently engenders it (PP vs. Perez) property, or to public officials or to property of any
political subdivision.
 Basically this is in the nature of a civil
disobedience. The accused desire to make Examples:
known their discontent, disapproval or protest or 1. Staging a violent demonstration in front of the
dissatisfaction, but instead of availing of the legal SM building to protest the failure to protect
means - such as through the media, the courts, or small and medium scale businessmen.
administrative remedies, the accused resort to 2. Destroying the trucks of illegal loggers.
violence or illegal methods. 3. Vendors stoning the car of the chief of police for
preventing them form selling in side walks
Examples
1). The act of supporters of an official who block  If other crimes are committed, such as killings,
and take over a government building to physical injuries, or destruction of properties, these
prevent the replacement of said official are separate crimes as the principle of absorption
2). Market vendors who fight with personnel of the does not apply to the crime of sedition. Common
engineer‘s office demolishing their illegal crimes are not absorbed in sedition (PP vs.
structures in the city market Umali)
3). Barricading session road to protest increase in  Preventing election through legal means is NOT
passenger fares sedition
 If the purpose of the offenders is to attain the
 The purpose may either be political or social but objects of rebellion or sedition by force or violence,
not the downfall or overthrow of the government. but there is no public uprising, the crime
The accused are not rebelling against the committed is direct assault
government.
Sedition vs Treason
Examples:
to protest the increase in oil prices or the policy on Sedition, in its more general sense, is the raising of
land reform; or against the increase of new taxes; commotions or disturbances in the State. While
or appointment of an official; or cheating in the treason, in its more general sense, is the violation by a
election subject of his allegiance to his sovereign.
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Elements Article 140. Penalty for Sedition
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Note that the Doctrine of Seditious Libel is one of
Persons liable the four crimes serving as limitations to the
freedom of the speech and of the press. The other
1. The leader of the sedition; and three are Prosecutions under Article 154 for
2. Other person participating in the sedition. Unlawful Means of Publication; Obscenity Raps
under Article 201 and a Prosecution for Libel
Article 141. Conspiracy to Commit Sedition against a private person under Article 353.

In this crime, there must be an agreement and a Uttering and Writing (acts Nos 2 and 3), When
decision to rise publicly and tumultuously to attain Punishable
any of the objects of sedition.
1. when they tend to disturb or obstruct any public
 There is conspiracy to commit sedition but no officer in executing the functions of his office; or
proposal to commit sedition 2. when they tend to instigate others to cabal and
meet together for unlawful purposes; or
Article 142. Inciting to Sedition 3. when they suggest or incite rebellious conspiracies
or riots; or
Acts punished (3 ways of inciting to sedition) 4. when they lead or tend to stir up the people
against the lawful authorities or to disturb the
1. Inciting others to the accomplishment of any of the peace of the community, the safety and order of
acts which constitute sedition by means of the gov‘t.
speeches, proclamations, writings, emblems, etc.
4 Aspects of Freedom of Speech
(The enumeration is broad enough to cover any (Chavez v Gonzales, 545 S 441)
means methods or form by which people are 1. Freedom from Prior Restraint – prior to actual
stirred to commit acts constituting sedition. These dissemination free from censorship by the
include text messages and graffiti on walls as well government.
as dramas, radio/television plays or programs)
Prior Restraint may be:
Elements a. Content Neutral – regulation with regard to
the time, manner, place of the meeting. This is
1. Offender does not take direct part in the crime allowed.
of sedition; b. Content Base – based on the subject matter
2. He incites others to the accomplishment of any of the utterance. This is presumed
of the acts which constitute sedition; and unconstitutional. The government must show
3. Inciting is done by means of speeches, clear and present danger.
proclamations, writings, emblems, cartoons,
banners, or other representations tending Speeches which May be Suppressed
towards the same end. 1. caters pornography
2. false and misleading advertisement
2. Uttering seditious words or speeches which tend to 3. advocacy of lawless action
disturb the public peace 4. Pose Danger to National Security

(A guest speaker for instance in a town fiesta Unprotected Speeches

starts lambasting the administration with words 1. libelous
calculated to make the people get angry); 2. lewd and obscene speeches
3. fighting words
3. Writing, publishing, or circulating scurrilous libels
against the government or any of the duly 2. Freedom from punishment subsequent publication.
constituted authorities thereof, which tend to 3. Freedom of Access to Information.
disturb the public peace. 4. Freedom of Circulation.

―scurrilous‖ means low, vulgar, foul, baseless, Tests to determine whether the writing,
mean, libelous publication, or speech, is seditious or protected
exercise of the freedom of speech and press
―Doctrine of Seditious Libel‖- publications or
speeches which tend to overthrow or undermine 1. The Dangerous Tendency Rule: The publication,
the security of the government or weaken the writing or speech is seditious if the words have a
confidence of the people in the government. They tendency to create a danger of public uprising; if
tend to stir up general discontent or induce the they could easily produce disaffection among the
people to resort to illegal means. people and a state of feeling incompatible with a
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disposition to remain loyal and obedient to the constitutional commissions or committees or
laws. divisions thereof, or of any provincial board or city
or municipal council or board;
This is the rule which is often applied in times of 2. Offender, who may be any person, prevents such
emergency. meetings by force or fraud.

2. The Clear and Present Danger Rule: To be  If the force results to physical injuries or damage
seditious the writing or speech must pose a danger to property, or if the fraud consists of falsification
of public uprising state which is not only clear but of documents, these are complexed with violation
is also imminent or at the point of happening, a of Article 143.
certainty. There is probability of a serious injury to  If it is a meeting of congress, the accused may
the state. further be subjected to Congressional Contempt.
Local legislative bodies do not have the inherent
This is the rule applied during normal situations. It right to punish for contempt. This right must be
is more liberal as it allows critics, and political expressly given by law.
opponents of the government, especially during  The offenders are any persons.
election times, to bring to the public what they  Examples: barricading the entrance to Congress;
perceive to be short comings of the government. or sending letters to the committee members that
the meeting is postponed by falsifying the
Thus the written article or the speech may be very signature of the committee chairman.
critical and may use strong language, yet, as long  If by the use of force, these must be no public
as the possibility of an uprising is remote, such uprising else the crime is sedition.
article or speech is not seditious.  Chief of Police and Mayor who prevented the
meeting of the municipal council are liable under
3. The Balancing of Interest Test: The courts Art 143, when the defect of the meeting is not
should weigh between the freedom of speech and manifest and requires an investigation before its
the danger to the state. existence can be determined.

 Article 142 punishes also a person ―who shall

knowingly conceal such evil practices‖ as inciting Article 144. Disturbance of Proceedings
to sedition although this act is that of an
accessory. This is similar to misprision of treason. Elements
 Only non-participant in sedition may be liable.
 Considering that the objective of sedition is to 1. There is a meeting of Congress or any of its
express protest against the government and in the committees or subcommittees, constitutional
process creating hate against public officers, any commissions or committees or divisions thereof, or
act that will generate hatred against the of any provincial board or city or municipal council
government or a public officer concerned or a or board;
social class may amount to Inciting to sedition.
Article 142 is, therefore, quite broad. 2. Offender does any of the following acts:
 The mere meeting for the purpose of discussing a. He disturbs any of such meetings (Example:
hatred against the government is inciting to cutting off the electric power; noise barrage);
sedition. Lambasting government officials to
discredit the government is Inciting to sedition. b. He behaves while in the presence of any such
But if the objective of such preparatory actions is bodies in such a manner as to interrupt its
the overthrow of the government, the crime is proceedings or to impair the respect due
inciting to rebellion. it.(Examples: singing, farting; loud laughter;
(what about sending of a shut-up note?)
Chapter 2 - Crimes Against Popular
Representations NOTE: Complaint must be filed by member of the
Legislative body. Accused may also be punished for
Section 1 - Crimes Against Legislative Bodies contempt by the legislative body.
and similar bodies
Article 145. Violation of Parliamentary
Article 143. Acts Tending to Prevent the Immunity
Meeting of the Congress of the Philippines and
Similar Bodies Acts punished

Elements 1. Using force, intimidation, threats, or frauds to

prevent any member of Congress from attending
1. There is a projected or actual meeting of Congress the meetings of Congress or of any of its
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commissions or committees or divisions thereof, or Chapter 3 – Illegal Assemblies and
from expressing his opinion or casting his vote; Associations

Elements Article 146. Illegal Assemblies

1. Offender uses force, intimidation, threats or Acts punished / Forms of Illegal Assemblies
fraud;
2. The purpose of the offender is to prevent any 1. Any meeting attended by armed persons for the
member of Congress from – purpose of committing any of the crimes
a. attending the meetings of the Congress or punishable under the Code;
of any of its committees or constitutional
commissions, etc.; Elements
b. expressing his opinion; or
c. casting his vote. 1. There is a meeting, a gathering or group of
persons, whether in fixed place or moving;
2. Arresting or searching any member thereof while 2. The meeting is attended by armed persons;
Congress is in regular or special session, except in 3. The purpose of the meeting is to commit any
case such member has committed a crime of the crimes punishable under the Code.
punishable under the Code by a penalty higher
than prision mayor. 2. Any meeting in which the audience, whether
armed or not, is incited to the commission of the
Elements crime of treason, rebellion or insurrection, sedition,
or assault upon person in authority or his agents.
1. Offender is a public officer of employee;
2. He arrests or searches any member of Elements
Congress;
3. Congress, at the time of arrest or search, is in 1. There is a meeting, a gathering or group of
regular or special session; persons, whether in a fixed place or moving;
4. The member arrested or searched has not
committed a crime punishable under the Code 2. The audience, whether armed or not, is incited
by a penalty higher than prision mayor. to the commission of the crime of
treason, rebellion or insurrection, sedition or
 Under Section 11, Article VI of the Constitution, a direct assault.
public officer who arrests a member of Congress
who has committed a crime punishable by prision Two Kinds of Illegal Assembly:
mayor (6 years and 1 day, to 12 years) is not
liable Article 145. 1. A meeting where the purpose is to commit any
According to Reyes, to be consistent with the felony and attended by armed men. If there are
Constitution, the phrase "by a penalty higher than no armed persons, there is no illegal assembly
prision mayor" in Article 145 should be amended to (Example: Persons conspiring to rob a bank were
read: "by the penalty of prision mayor or higher." arrested. Some were with firearms. Liable for
 Parliamentary immunity does not mean illegal assembly, not for conspiracy, but for
exemption from criminal liability, except from gathering with armed men)
a crime that may arise from any speech that the
member of Congress may deliver on the floor 2. A meeting where the audience are incited to
during regular or special session. commit treason, rebellion or insurrection,
 Members of congress enjoy immunity form arrest sedition or assault upon persons in authority or
while congress is in session. Presumably this is to their agents. It is not necessary that there are
enable them to attend to their legislative duties. armed persons.
They cannot therefore be arrested unless it is for a
crime punishable by more than 6 years Persons liable
imprisonment.
 This privilege attaches to the legislator by virtue of 1. The organizers or leaders of the meeting;
his office and is enjoyed by him even if he is not 2. Persons merely present at the meeting, who must
actually joining the sessions of congress. have a common intent to commit the felony of
 The immunity form arrest covers both warrantless illegal assembly. (when presence is out of curiosity
arrest and arrest by virtue of a warrant. They –not liable)
include offenses committed prior to his election.
 Session refers to the year long regular session or When a Person Carries Unlicensed Firearm in the
special session and not the day-to-day session. 1st Assembly
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If any person present at the meeting carries an Illegal associations
unlicensed firearm, it will be presumed as to him that
the 1) purpose of the meeting is to commit a felony 1. Associations totally or partially organized for the
and 2) he will be deemed the leader or organizer of the purpose of committing any of the crimes
meeting. punishable under the Code;
2. Associations totally or partially organized for some
 The gravamen of the offense is mere purpose contrary to public morals.
assembly of or gathering of people for illegal
purpose punishable by the Revised Penal Code. PUBLIC MORALS – refers to matters which affect the
Without gathering, there is no illegal assembly. interest of society and public convenience and is not
 Assembly means a meeting or gathering or group limited to good customs. These are inimical to public
of persons, whether in a fixed place or moving, as welfare; it has nothing to do with decency, not acts of
a meting inside a bus. obscenity.
 If the meeting is to commit an act punished
by special law, such as drug pushing or to Persons liable
engage in gun running, there is no illegal
assembly even if all participants are armed 1. Founders, directors and president of the association;
because the purpose is not violative of the Revised 2. Mere members of the association.
Penal Code.
 If the assembly is in the public places defined by  Be it noted that R.A 1700 which outlawed the
BP. 885, what will apply may be The Public Communist Party of the Philippines and declared it
Assembly Act. an illegal association has been repealed. Hence
membership therein is not punished.
 The association is still illegal even if it is duly
Article 147. Illegal Associations registered with the SEC as what matters is not the
stated purposes in its registration papers but the
Concept actual and hidden purposes.
Illegal Assembly Illegal Association
(146) (147)
Crimes Against Persons in Authority and their
There must be an No need for such
Agents
actual meeting of
armed persons to
Chapter 4 – Assault, Resistance, and
commit any of the
Disobedience
crimes punishable
under the RPC, or of
A. They include: (1) Direct Assault (2) Indirect Assault
individuals who,
(3) Resistance and Disobedience and (4)
although not armed,
Disobedience to Summons of Congress and
are incited to the
Constitutional Commissions
commission of treason,
rebellion, sedition or
B. Distinctions between:
assault upon a person
in authority or his
Public Officer (PO) - any person who takes part
agent
in the performance of public functions in the
Constitutes crime Includes a violation of a
government (Art. 203)
under RPC special law or those
against public morals.
Person in Authority (PIA) - one who is directly
vested with jurisdiction to execute or enforce the
It is the meeting and Act of forming or laws, whether as individual or as a member of
the attendance at organizing and some court or governmental corporation, board or
such that are punished membership in the commission.
association is punished
Persons liable: leaders Persons liable: Agent of Person in Authority (APIA) - one
and those present founders, directors, who, by direct provision of law, by election or by
president and members appointment by competent authority, is generally
charged with the maintenance of peace and order
Those associations organized for the purpose of and the protection and security of life and
committing any felony or for some purpose contrary to property.
public morals. These include the criminal gangs as the
Kidnap for Ransom Gangs, Bahala Na Gang; Siguesigue Hence a public officer is not necessarily a PIA or
Commandos. APIA but the latter are always public officers. 14
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Article 148. Direct Assault because mere laying of hands is sufficient,
such as by pushing or shoving him or pulling
Acts punished at his collar. If he were an APIA, actual
force is required because mere laying of
1. Without public uprising, by employing force or hands would constitute simple resistance.
intimidation for the attainment of any of the  As to intimidation and resistance the
purposes enumerated in defining the crimes of same must be serious and actual
rebellion and sedition. whether the victim is a PIA or APIA
otherwise the offense is resistance and
(This is very rare. It is the second form which is disobedience under article 151. Example is
commonly committed.) pointing a gun

Elements Force Intimidation/

employed Resistance
1. Offender employs force or intimidation; PIA need not be serious
2. The aim of the offender is to attain any of the serious
purposes of the crime of rebellion or any of APIA Serious serious
the objects of the crime of sedition;
3. There is no public uprising. Offended Party Must Be A Pia Or A Apia And
Has Not Yet Been Separated From The
Note: It does not seem to require that the Service
offended party is PIA or APIA.
Thus the crime is committed even if at the time of
2. Without public uprising, by attacking, by employing commission the PIA/APIA is on leave, on vacation,
force or by seriously intimidating or by seriously or under suspension, but no when he has retired
resisting any person in authority or any of his or was dismissed or removed.
agents, while engaged in the performance of
official duties, or on occasion of such performance. The following are PIAs:

a). Any person directly vested with jurisdiction (he

Elements has the power to govern, execute the laws and
administer justice) whether as an individual or
1. Offender makes an attack, employs force, as a member of some court or government
makes a serious intimidation, or makes a corporation, board, or commission (Art. 152)
serious resistance;
2. The person assaulted is a person in authority b). Teachers, professors and persons charged with
or his agent; the supervision of public or duly recognized
3. At the time of the assault, the person in private schools, colleges and universities. They
authority or his agent is engaged in the actual must be within the school premises during
performance of official duties, or that he is school hours or are actually performing the
assaulted by reason of the past performance tasks outside the school premises
of official duties;
4. Offender knows that the one he is assaulting is c). Lawyers in the actual performance of their
a person in authority or his agent in the professional duties or on the occasion of such
exercise of his duties. performance.
5. There is no public uprising.
Note that teachers (under b) and lawyers
Attack Or Employment Of Force Or Serious (under c) are PIAs only for purposes of Direct
Intimidation Assault (A148) and Resistance and
Disobedience (A151) but not for purposes of
This includes any offensive or antagonistic Indirect Assault (A149).
movement of any kind, with or without a weapon.
This may be an actual physical contact or the d). Under the Local Government Code (Sec 388):
instilling of fear or threat of an evil on the person (a) the Punong Barangay, (b) Sanguniang
of the victim, but not on his property. Barangay members and (c) members of the
Lupong Tagapamayapa
 Examples: boxing, pointing a gun, brandishing
a weapon, shouting and berating, challenging e) others: see Art 152
to a fight, throwing an article at him
 The degree of force required depends on The following are APIAS:
whether the victim is a PIA or APIA. In case of
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a PIA actual force is not necessary
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a. Those who, by direct provision of law, or by b. When assault is made by reason of the
election or by appointment by competent performance of his duty there is no need for
authority, are charged with the 1) maintenance actual performance of his official duty when
of public order and 2) the protection and attacked
security of life and property (AGENTS PROPER) c. If not on the occasion then the motive is
(Art 152) such as: important as the assault must be because of
the past performance of official duties by the
(i). Law Enforcement Agents such as the PNP victim. The length of time between the
and the NBI irrespective of their rank performance of the duty and the time of the
(ii). Barangay Tanods, barangay leader assault is immaterial. If the motive cannot be
(iii).Municipal treasurer being the agent of the established, there is no direct assault but some
provincial treasurer; agents of the BIR lesser offense.
(iv). The postmaster being the agent of the d. Instances Not considered in the performance
Director of Posts of Duties:
(v) Malacañang confidential agent i. exceeds his power or acts without authority
(vi) barrio councilman ii. descend to matters which are private in
(vii) barrio policeman nature
iii. agreement to fight
But Members of the AFP are not included
Rule When Material Injury Results
Other brgy officials and members who may be
designated by law or ordinance and charged The crime of Direct Assault aims to punish
with the maintenance of public order, lawlessness and defiance of authority and not the
protection and the security of life, property, or material injury which results from such defiance.
the maintenance of a desirable and balanced When material injury however results, the
environment, and any brgy member who following are the rules:
comes to the aid of PIA
1. Where death, serious or less serious
b. Any person who comes to the aid of PIAs who physical injuries result, they are to be
is under direct assault. (AGENTS BY complexed with direct assault. Example: A
ASSISTANCE) policeman was shot to death while directing
traffic: the crime is Homicide with Direct
Note that if a teacher or lawyer is the person Assault
who comes to the assistance of the PIA, then
he is considered as an APIA. 2. If only slight physical injuries are
committed, the slight physical injury is a
Thus private persons may be victims but to a qualifying circumstance if the victim is a PIA
limited extent: (i). when they are considered but it will be absorbed if the victim is an APIA (
by law as PIAs or APIAs such as teachers and PP. vs. Acierto, 57 Phil. 614)
lawyers (ii). and those who come to the aid of
PIAs When the Attack does not Constitute Direct
Assault
Accused Must Know The Victim As PIA/APIA
Which Fact Must Be Alleged In The 1. If both accused and victim are PIAs/APIAs and
Information they contend or there is conflict arising from
the exercise of their respective functions or
There must be a clear intent on the part of the jurisdictions.
accused to defy the authorities, to offend, injure or
assault the victim as a PIA/APIA (no assault upon or disobedience)

Time Of The Assault PIA Or APIA Is Engaged Examples:

In The Actual Performance Of Official Duties, (a). A fight between the Incumbent Mayor
Or That He Is Assaulted By Reason Of The and the Acting Mayor as to who shall
Past Performance Of Official Duties occupy the office
(b). NBI vs. Police concerning who shall take
a. If the assault is during the occasion of the custody of a suspect
performance of official duties the motive
of the accused is immaterial. As long as 2. Where the PIA/APIA act with abuse of their
the victim was assaulted in his office or in the official functions, or when they exceed their
premises where he holds office, or even while powers they are deemed to be acting in a
on his way to office, it is not required that he private capacity. They become aggressors and
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3. Where they voluntarily descend to matters  Indirect assault can be committed only when a
which are purely personal. But not when the direct assault is also committed.
PIA/APIA is dragged down to purely personal
matters by the accused. Examples:
1. A policeman is having a hard time pushing a
Kinds of Direct Assault of the 2nd Form suspect inside a police car because the suspect is
pulling back. A third person who came to help put
1. Simple Assault the suspect inside the car was kicked by the
2. Qualified Assault suspect. The kicking of the third person constitutes
Physical Injuries merely. The police is not under
Qualifying Circumstances Direct Assault.
a. When the accused lays hand upon the
victim who is a PIA 2. The Mayor is pushed and shoved while on his way
b. When the accused is himself a Public home by an irate person whose house was
Officer or employee demolished. A vendor who pulls the Mayor away is
c. When the assault is with a weapon himself slapped. The crime on the Mayor is direct
assault and the crime on the third person is also
 Even when the PIA or APIA agrees to fight, direct direct assault.
assault is still committed, except when the attack is
made in lawful defense; the character of PIA or But if the third person directs the vendor to stop
APIA is not laid off at will but attaches to him until but the vendor tells him not to interfere, the crime
he ceases to be in office. against the third person would be resistance under
Article 151.
 When the PIA or APIA provoked/attacked first,
innocent party is entitled to defend himself and 3. X came to help The Chief of Police who was being
cannot be held liable for assault or resistance nor pushed and shoved by vendors who were not
for physical injuries, because he acts in legitimate allowed to sell on the sidewalk. X was also kicked
self-defense. and boxed and thrown to the ground. Y came to
help X but was himself kicked and boxed. What is
 Direct assault cannot be committed during the crime against Y?
rebellion

Article 149. Indirect Assault ARTICLE 150. DISOBEDIENCE TO SUMMONS ISSUED BY

CONGRESS, ITS COMMITTEES OR SUBCOMMITTEES, BY THE
Concept: The crime committed by any person who CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES,
uses force or intimidation upon any person coming to SUBCOMMITTEES OR DIVISIONS
the aid of an APIA who is under direct assault.
The person who is assaulted should not be a PIA Acts punished
because the third person automatically becomes an
APIA and the attack on him would constitute direct 1. By refusing, without legal excuse, to obey
assault also. summons of Congress, its special or standing
committees and subcommittees, the Constitutional
Elements Commissions and its committees, subcommittees
1. A (person in authority) or his agent is the victim of or divisions, or by any commission or committee
any of the forms of direct assault defined in Article chairman or member authorized to summon
148; witnesses;
2. A person comes to the aid of such (authority) or
his agent; 2. By refusing to be sworn or placed under
3. Offender makes use of force or intimidation upon affirmation while being before such legislative or
such person coming to the aid of the (authority) or constitutional body or official;
his agent.
3. By refusing to answer any legal inquiry or to
 The APIA is an agent proper such as a law produce any books, papers, documents, or
enforcement agent. Direct Assault is being records in his possession, when required by them
committed against him, not merely Resistance or to do so in the exercise of their functions;
Disobedience.
 A Third person comes to his assistance. It is not 4. By restraining another from attending as a
required that the assistance be by virtue of the witness in such legislative or constitutional body;
order or request of the APIA.
 The third person is himself attacked. This is the 5. By inducing disobedience to a summons or
gist of indirect assault. refusal to be sworn by any such body or official. 14
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 The testimony of a person summoned must be  While being arrested and there‘s serious
upon matters which the legislature has jurisdiction resistance, person resisting must know that the
to inquire. one arresting him is an officer
 Picketing (economic coercion) must be lawful;
ARTICLE 151. RESISTANCE AND DISOBEDIENCE TO A otherwise police can disperse them
PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSON  Disobedience in 2nd par must not be serious;
otherwise it will be under the 1st par
Concept  Resistance must not be serious; otherwise it‘s
direct assault
The crime committed by any person who shall resist or
seriously disobey any PIA or APIA while engaged in the Direct Assault Resistance &
performance of official duties. (148) Disobedience to PIA
or APIA
The essence is the failure to comply with, or refusal to (151)
obey, orders directly issued by the authorities. Such PIA or APIA must be PIA or APIA must be in
orders are peremptory and not merely a declaration of engaged in the actual performance of
facts or rights. They are directed to the accused for performance of official his duties
compliance or implementation without allowing any duties or that he is
exercise of discretion by him. assaulted by reason
thereof
This crime is brought about by creating serious Direct assault (2nd Committed by resisting
disturbances in public places, public buildings, and form) is committed in or seriously disobeying
even in private places where public functions or 4 ways- by attacking, a PIA or APIA
performances are being held. employing force,
seriously intimidating,
Whether it be resistance or disobedience depends upon and seriously resisting
the degree of defiance by the offender a PIA or APIA
Use of force against Resistance – force not
Elements of RESISTANCE AND SERIOUS APIA must be serious serious. Simple
DISOBEDIENCE under the first paragraph and deliberate disobedience – force
against an APIA is not
1. A person in authority or his agent is engaged in so serious.
the performance of official duty or gives a lawful
order to the offender;
2. Offender resists or seriously disobeys such person Chapter 5 - Public Disorders
in authority or his agent; Article 153. Tumults and Other Disturbances of
3. The act of the offender is not included in the Public Order
provision of Articles 148, 149 and 150.
Elements of SIMPLE DISOBEDIENCE under the Acts punished
second paragraph
1. Causing any serious disturbance in a public place,
1. An APIA is engaged in the performance of official office or establishment
duty or gives a lawful order to the offender;
2. Offender disobeys such agent of a person in  This includes those in private places where
authority; public functions or performances are being
3. Such disobedience is not of a serious nature. held.
 Serious disturbance must be planned or
Examples: intended.
1. Refusal to submit to the authority of the police and
proceed to the police station by pushing and Examples:
shoving the police  Challenging people to a fight inside city hall or
2. Refusal to hand over one‘s driver‘s license when at the market; unruly behavior at the
required to do so corridors of Justice Hall
3. Refusal to vacate premises despite writ issued by  Firing a gun within the premises of a public
court to place a party in possession, or disobeying building, and if somebody was hurt there is a
a writ of injunction separate crime of reckless imprudence
4.. Refusal to give up article subjects of lawful seizure resulting to physical injuries
5. But merely questioning the manner of arrest is not
resistance 2. Interrupting or disturbing performances, functions or
gatherings or peaceful meetings, if the act is not
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 The act must not be the crime of Prohibition, Article 154. Unlawful Use of Means of
interruption or dissolution of peaceful Publication and Unlawful Utterances
meetings (Art. 131) or Interruption of
Religious worship ( Art. 132) This is the second limitation to the Freedom of the
 If the act of disturbing or interrupting a Speech and of the Press. Mass media is supposed to
meeting or religious ceremony is NOT provide information on matters of public interest, to
committed by public officers, or if entertain, to serve as medium for the expression and
committed by public officers who are free exchange of opinions and ideas. But when, under
participants therein, this article applies. the guise of dissemination of news and information, it
Art 131 and 132 punish the same acts instead causes disturbance to public peace and order,
committed by public officers who are not then a criminal prosecution is justified.
participants in a meeting
Acts punished
Examples:
 throwing bottles at the stage during a Miss 1. Publishing or causing to be published, by means of
Barangay Coronation; intentional loud singing printing, lithography or any other means of
and derisive laughter by the losing candidates publication, as news any false news which may
during the oath taking of the winning endanger the public order, or cause damage to the
candidates of the school student organization interest or credit of the state.
 If while addressing the employees, the mayor
was stoned by the accused the crime is the  Not any false news gives rise to prosecution.
complex crime of direct assault with Only those which affect public order give rise
disturbance of public order to a prosecution. Yellow journalism or
sensationalism do not ipso facto constitute e a
3. Making an outcry tending to incite rebellion or violation of this article
sedition in any meeting association or public place;  Thus publishing that a woman gave birth to a
fish-baby is not the news contemplated. But
OUTCRY – to shout spontaneously subversive or publishing falsely that the Congress has
provocative words tending to stir up the people so decided to impeach the President is punishable
as to obtain by means of force or violence any of  To publish need not be by print media
the objects of rebellion or sedition. but may be oral, as in radio or TV
announcements.
 The outcry must not be intentional  The offender must know that the news is
premeditated but is an emotional outburst or false, to be liable.
an on-the-spot utterances, otherwise the crime  Actual public disorder or actual damage to the
is inciting to sedition or rebellion if the credit of the state is not necessary. The mere
utterances were pre-planned with the possibility of causing such damage is enough.
expectation that the crowd would react
positively. 2. Encouraging disobedience to the law or to the
constituted authorities or praising, justifying,
4. Displaying placards or emblems which provoke a extolling any act punished by law by the same
disturbance of public order in such place; means or by words, utterances or speeches;.

5. Burying with pomp the body of a person legally  Example: praising the act of the Magdalo
executed. soldiers as a supreme sacrifice worthy of
emulation by all soldiers.
 These persons have been proven guilty
beyond reasonable doubt of a heinous crime. 3. Maliciously publishing or causing to be published
They should not be made martyrs or heroes any official resolution or document without proper
else it would create hatred on the part of the authority, or before they have been published
public. officially (Malicious and unauthorized publication or
premature publication of official resolutions or
Qualifying Circumstance – tumultuous documents.)
The first two acts ( 1 ) and ( 2) are punished with a  These resolutions may still be withdrawn or
higher penalty if it is tumultuous in character i.e. amended. Example: publishing a Resolution of
committed by more than 3 persons who are armed or the City Prosecutor‘s Office before it is officially
provided with means of violence The term ―armed‖ docketed and mailed to the parties. The
does not refer to firearms but includes even big stones intention must be to cause damage.
capable of causing grave injury.  RA 248 prohibits reprinting, reproduction or
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from doing something lawful, it is grave
4. Printing publishing or distributing (or causing the coercion
same) books, pamphlets periodicals, leaflets or any
published material, which do not bear the real 2. Instigating or taking part in any charivari or other
printer‘s name or those classified as anonymous. disorderly meeting offensive to another or
prejudicial to public tranquility.
 These are those publications the subject or
contents of which are prohibited by law, such CHARIVARI - means mock serenade or simply
as obscene materials. making noise from materials, not music, and the
purpose is to disturb public peace. It should not be
ARTICLE 155. ALARMS AND SCANDALS directed to any particular individual else it is unjust
vexation.
Concept: These offenses must be caused in public
places or must affect public peace and tranquility but 3. Disturbing the public peace while wandering about
the disturbances are only of minor degree, or not as at night or while engaged in other nocturnal
serious or tumultuous as those under Article 153. amusements;

The crime alarms and scandal is only one crime. Do  Even if the persons involved are engaged in
not think that alarms and scandals are two crimes. nocturnal activity like those playing patintero
at night, or selling balut, if they conduct their
ALARMS - acts which frighten or scare people, causes activity in such a way that disturbs public
them to panic or to become nervous and tense. peace, they may commit the crime of alarms
and scandals.
SCANDAL - has no reference to acts of indecency or  Examples are:
affecting public morals which are properly the subject a). shouting at night even if by a vendor
of Grave Scandal. b). holding a party in one‘s house but with
loud music
Acts punished c). partying or quarreling in the street
d). jamming or acting as street musicians
1. Discharging any firearm, rocket or firecracker or
other explosive in any town or public place, 4. Causing any disturbance or scandal in public places
calculated to cause (which produces) alarm or while intoxicated or otherwise (which are only
danger; slight and not tumultuous) provided Article 153 is
not applicable.
 The gun should not be pointed at any person .
or in the general direction of a person  This is a catch all phrase.
 It does not matter that the gun was fired within  Public nuisance is covered by this act.
the premises of one‘s house so long as there  As in the case of a drunk walking and bumping
were people who were disturbed. passers-by. Or the act of two people fighting
 It is the result, not the intent that counts. Act each other in the market.
must produce alarm or danger as a
consequence. Article 156. Delivering Prisoners from Jail
 If a gun is pointed at any person the following
are the possible crimes: Concept

(a) Grave threats if the gun is not discharged This is the crime committed by a person who
(not fired) removes/springs a prisoner from jail or helps him
escape.
(bi) Illegal discharge if fired but there is no
intent to kill Elements

(c) If with intent to kill and the gun is fired 1. There is a person confined in a jail or penal
resulting to a harm, it is homicide, establishment;
frustrated or attempted homicide 2. Offender removes therefrom such person, or
depending on the actual material injury helps the escape of such person.

(d) If fired but with intent merely to injure; it is Committed in 2 Ways:

slight, less serious, or serious physical 1. By removing a prisoner confined in jail or penal
injuries institution – to take away a person from
confinement with or withput the active
(e) If the pointing or firing is to compel the participation of the person released.
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 The act of removal may be by any means, But if he himself escaped, some say he does
such as substituting him with another, but if not incur any liability however if he is later
the method used is violence, intimidation or convicted for his crime then he will not be
bribery, then the offense becomes qualified entitled to an Indeterminate Sentence.
and the penalty is higher.
Personal opinion: he is liable for he delivered
2. By helping said person to escape – furnish material himself from jail.
means to facilitate escape.
3. If the crime committed by the prisoner for
 The prisoner may be a mere detention prisoner which he is confined or serving sentence is
or a prisoner by final judgment. treason, murder, or parricide, the act of taking
 This article applies even if the prisoner is in the the place of the prisoner in prison is that of an
hospital or asylum when he is removed or when accessory under Art 19, par 3.
the offender helps him escape, because it is
considered as an extension of penal institution.  This felony may also be committed through
 The offender is usually an outsider to the jail imprudence or negligence
i.e he is not a jail guard. But a jail guard may be
liable if he was not then on duty at that time he Qualifying Circumstance:
removed or assisted in the removal of a prisoner
form jail. Penalty of arresto mayor in its maximum period to
prision correccional in its minimum period is imposed if
Vs. Infidelity In The Custody Of Prisoners violence, intimidation or bribery is used.

a. In both acts, the offender may be a public Mitigating Circumstance:

officer or a private citizen. Do not think that
infidelity in the custody of prisoners can only Penalty decreased to the minimum period if the escape
be committed by a public officer and delivering of the prisoner shall take place outside of said
persons from jail can only be committed by establishments by taking the guards by surprise.
private person. Both crimes may be
committed by public officers as well as private
persons. Chapter 6
Evasion of Service of Sentence
b. In both crimes, the person involved may be a
convict or a mere detention prisoner. EVASION - means to escape or to avoid serving a
penalty. Only prisoners who have been sentenced by
c. If the offender is the custodian at that time, final judgment are liable for evasion. The penalty of the
the crime is infidelity in the custody of accused must be one of imprisonment or destierro.
prisoners. But if the offender is not the
custodian of the prisoner at that time, even 3 Kinds Of Evasion:
though he is a public officer, the crime he 1. Evasion by Escaping under ordinary circumstances
committed is delivering prisoners from jail. (Article 157)
2. Evasion by Escaping on the occasion of a disorder
 If three persons are involved – a stranger, the
or mutiny ( Art. 158)
custodian and the prisoner – three crimes are
3. Evasion by Violation of a Conditional Pardon (Art.
committed:
159)
(1) Infidelity in the custody of prisoners;
(2) Delivery of the prisoner from jail; and
ARTICLE 157. EVASION OF SERVICE OF SENTENCE
(3) Evasion of service of sentence
Concept
 What is the liability of the prisoner who escaped?
The crime committed by a prisoner by final judgment
1. If he is a convict, he is liable for evasion of
who escapes during the term of his imprisonment, or,
service of sentence
having been sentenced to destierro, shall enter the
designated prohibited area. (Note: the escapee is
2. If a mere detention prisoner, Ortega says he
referred to in police/prison parlance as a Jailbird)
is not liable if he does not know of the plan
to remove him from jail but he is liable for
delivering prisoners from jail as a Elements
principal by indispensable cooperation if
such prisoner knows of the plot to remove him 1. Offender is a convict by final judgment;
from jail and cooperates therein by escaping. 2. He is serving sentence which consists in the
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3. He evades service of his sentence by escaping e. mutiny in which he has not participated;
during the term of his sentence. 3. He leaves the penal institution where he is
confined, on the occasion of such disorder or
Qualifying Circumstances during the mutiny;
4. He fails to give himself up to the authorities within
If such evasion or escape takes place – 48 hours following the issuance of a proclamation
by the Chief Executive announcing the passing
1. By means of unlawful entry (this should be ―by away of such calamity.
scaling‖ - Reyes);
2. By breaking doors, windows, gates, walls, roofs or  It is not the act of escaping which constitutes the
floors; evasion because it is normal for people to try to
3. By using picklock, false keys, disguise, deceit, save their lives during a catastrophe or calamity.
violence or intimidation; or What gives rise to the crime is the failure to
4. Through connivance with other convicts or return or to give himself up return within 48
employees of the penal institution. hours.
 If the prisoner returns within 48 hours, he is
 In case of destierro (committed if the convict given a deduction from the remaining period
sentenced to destierro will enter the prohibited of his sentence equivalent to 1/5 of his
places or come within the prohibited radius of 25 original sentence for loyalty.
kilometers to such places as stated in the
judgment), the penalty for the evasion is also If he did not return, an added penalty, also
destierro. This is so because the penalty for the 1/5, shall be imposed but the 1/5 penalty is
evasion can not be more severe than the penalty based on the remaining period of the
evaded. sentence, not on the original sentence. In
no case shall that penalty exceed six
Is there evasion if the prisoner enters the months.
prohibited area due to an emergency? Such as
bringing a loved one to the hospital or attending a Those who did not escape are not given any
burial? NO, because of avoidance of greater evil. deduction.

 In case the prisoner voluntarily returns, his liability  Mutiny is an organized unlawful resistance to a
remains but the penalty maybe mitigated as this is superior officer, a sedition, or a revolt.
analogous to voluntary surrender.
 This is a continuing offense. It does not include prison riots but it includes
 This article does not apply to minor delinquents, subordinate prison officials rising against their
detention prisoners or deportees. superiors. Disarming the guards is not mutiny.
 If the offender escaped within the 15-day appeal Neither does it include mass jail breaks.
period, crime is not evasion because judgment is
not yet final. Mutiny is one of the causes which may authorize a
convict serving sentence in the penitentiary to
Article 158. Evasion of Service of Sentence on leave the jail provided he has not taken part in the
the Occasion of Disorders, Conflagrations, mutiny. If the escapee participated and escaped,
Earthquakes, or Other Calamities he is liable for evasion under Article 157.

Concept: There is a disorder resulting from a  Will the foregoing provision apply to prisoners in
conflagration, earthquake, explosion or similar the provincial or city jails? Yes, by analogy.
catastrophe, or a mutiny in which he has not Suppose it was a death convict who, while awaiting
participated; a prisoner by final judgment escapes or his execution, escaped?
leaves the penal establishment; he fails to give himself
up to the authorities within 48 hours following the Article 159. Other Cases of Evasion of Service of
issuance of a proclamation by the Chief Executive Sentence (Conditional Pardon)
announcing the passing away of the calamity.
Concept: This is in truth Violation of Conditional
Elements Pardon. A convict accepted the grant of a conditional
pardon, which thus becomes a contract between him
1. Offender is a convict by final judgment, who is and the Chief Executive. This has the effect of
confined in a penal institution; suspending the enforcement of a sentence, or which
2. There is disorder, resulting from – exempt the convict from serving the unexpired portion
a. conflagration; of his prison penalty.
b. earthquake;
c. explosion; or Elements Of Violation Of Conditional Pardon 14
d. similar catastrophe; or
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1. Offender was a convict; c) The President may order him to serve his
2. He was granted pardon by the Chief Executive; original sentence. This is upon the
3. He violated any of the conditions of such pardon. discretion of the President.

Additional Requirements 2. If the physical injury was committed after the

1. The violation usually consists of the commission of lapse of 7 years, the convict is not liable for
another offense (even if punishable by special Violation of Conditional Pardon. He will just be
law). (Thus liable under Art 159 and for the crime liable for the new offense he committed.
committed) However, the President may, at his discretion,
order that the convict go back to jail to serve
2. The prisoner must first be convicted by final the remaining 7 years of his original sentence,
judgment of the subsequent offense (before he if so provided in the pardon.
can be prosecuted under Art 159).
 When the penalty remitted is destierro, under no
3. In violation of conditional pardon, as a rule, the circumstance may the penalty for violation of
violation will amount to this crime only if the conditional pardon be destierro
condition is violated during the remaining period of
the sentence. As a rule, if the condition of the Penalties for Violation
pardon is violated when the remaining unserved
portion of the sentence has already lapsed, there 1. Prision correctional minimum if the remitted
will be no more criminal liability for the violation. portion (i.e the portion which was not served) is
However, the convict maybe required to serve the up to 6 years. This is why it is said that Violation
unserved portion of the sentence, that is, continue of Conditional Pardon is a substantive offense.
serving original penalty
2. No new penalty (only the unexpired portion of
 The liability therefore of the accused consists of: his original sentence) if the unserved portion is
(1) Prosecution for the new offense and (2) more than 6 years. This is the reason for the
Prosecution for Violation of Conditional pardon and view that Violation is not a substantive offense.
(3) Administrative, or to serve his sentence upon
order of the President (recommitment). The Is the violation of conditional pardon a
administrative liability is different and has nothing substantive offense?
to do with his criminal liability. Exception: where
the violation of the condition of the pardon will If the remitted portion of the sentence is less than six
constitute evasion of service of sentence, even years or up to six years, there is an added penalty of
though committed beyond the remaining period of prision correccional minimum for the violation of the
the sentence. This is when the conditional pardon conditional pardon; hence, the violation is a
expressly so provides or the language of the substantive offense if the remitted portion of the
conditional pardon clearly shows the intention to sentence does not exceed six years because in this
make the condition perpetual even beyond the case a new penalty is imposed for the violation of the
unserved portion of the sentence. In such case, conditional pardon.
the convict may be required to serve the unserved
portion of the sentence even though the violation But if the remitted portion of the sentence exceeds six
has taken place when the sentence has already years, the violation of the conditional pardon is not a
lapsed. substantive offense because no new penalty is imposed
for the violation.
But under the Revised Administrative Code, no
conviction is necessary. President has the Note: The Supreme Court, however, has ruled in the
power to arrest, and reincarnate offender without case of Angeles v. Jose that this is not a substantive
trial. offense. This has been highly criticized.

Illustration Chapter 7
Article 160. Commission of Another Crime
1. Convict served 5 years of his 12 years sentence During Service of Penalty Imposed for Another
for robbery. and then he accepted a Previous Offense (Quasi-Recidivism)
conditional pardon. He must comply with the
conditions or he should not commit any Elements of Quasi-Residivism
offense during the 7 year period. If within the
7 year period he committed physical injuries, 1. Offender was already convicted by final judgment
then the consequences are as follows: of one offense;
a) He will be prosecuted for Physical Injuries 2. He committed a new felony before beginning to
b) If found guilty then he will be prosecuted serve such sentence or while serving the same.
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 Quasi-Recidivism is a special aggravating 4. Mutilation of coins, importation and uttering of
circumstance where a person, after having been mutilated coins (Art. 164);
convicted by final judgment shall commit a new 5. Selling of false or mutilated coins, without
felony before beginning to serve his sentence for a connivance (Art. 165);
previous offense or while serving the same. It 6. Forging treasury or bank notes or other documents
cannot be offset by ordinary mitigating payable to bearer, importing and uttering of such
circumstance. false or forged notes and documents (Art. 166);
 The first offense may be any crime but the second 7. Counterfeiting, importing and uttering instruments
must always be a felony; i.e. the first crime may not payable to bearer (Art. 167);
be either from the RPC or special laws but he 8. Illegal possession and use of forged treasury or
second crime must belong to the RPC, not special bank notes and other instruments of credit (Art.
laws 168);
 The legal consequence is that the penalty for the 9. Falsification of legislative documents (Art. 170);
new offense will be in its maximum period 10. Falsification by public officer, employee or notary
irrespective of ordinary mitigating circumstances (Art. 171);
 The new offense may be committed: (i) while the 11. Falsification by private individuals and use of
convict is being transported to prison (ii) while in falsified documents (Art. 172);
prison or (iii) during the period of time that he 12. Falsification of wireless, cable, telegraph and
escaped from prison telephone messages and use of said falsified
 If the new offense and previous are both under the messages (Art. 173);
same title of the RPC, it is recidivism. Quasi- 13. False medical certificates, false certificates of merit
recidivism will be favored over recidivism in view of or service (Art. 174);
the intention of the Code to punish those who 14. Using false certificates (Art. 175);
commit an offense even after having been already 15. Manufacturing and possession of instruments or
convicted. implements for falsification (Art. 176);
 The aggravating circumstance of reiteracion, 16. Usurpation of authority or official functions (Art.
on the other hand, requires that the offender shall 177);
have served out his sentence for the prior offense 17. Using fictitious name and concealing true name
 Who Can be Pardoned: General rule: A quasi- (Art. 178);
recidivist may be pardoned at age 70 IF he shall 18. Illegal use of uniforms or insignia (Art. 179);
have already served out his original sentence. 19. False testimony against a defendant (Art. 180);
Exception: unworthy or habitual delinquent. 20. False testimony favorable to the defendant (Art.
 If new felony is evasion of sentence, offender 181);
is not a quasi-recidivist. 21. False testimony in civil cases (Art. 182);
 The penalty maximum period of the penalty 22. False testimony in other cases and perjury (Art.
for the new felony should be imposed. Mitigating 183);
circumstances can only be appreciated if the 23. Offering false testimony in evidence (Art. 184);
maximum penalty is divisible. 24. Machinations in public auction (Art. 185);
 Quasi-recidivism may be offset by special 25. Monopolies and combinations in restraint of trade
privileged mitigating circumstance (e.g. (Art. 186);
minority) 26. Importation and disposition of falsely marked
articles or merchandise made of gold, silver, or
other precious metals or their alloys (Art. 187);
TITLE IV 27. Substituting and altering trade marks and trade
CRIMES AGAINST PUBLIC INTEREST names or service marks (Art. 188);
28. Unfair competition and fraudulent registration of
Concept trade mark or trade name, or service mark;
fraudulent designation of origin, and false
These are crimes which involve deceit, description (Art. 189).
misrepresentation, or falsity against the public at large.
If the misrepresentation or deceit or falsity was The above crimes are grouped into three
purposely availed of against a particular person the categories:
same will constitute estafa.
A. Forgeries: these refer to deceits involving:
Crimes against public interest 1. The seal of the government, the signature and
stamp of the chief executive
1. Counterfeiting the great seal of the Government of 2. Coins
the Philippines (Art. 161); 3. Treasury or bank notes, obligations and
2. Using forged signature or counterfeiting seal or securities of the government
stamp (Art. 162); 4. Documents
3. Making and importing and uttering false coins (Art.
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B. Other Falsities: these are deceits pertaining to :  Offender under this article should not be the
(1). Authority, rank or title (2) Names (3) Uniforms forger or the cause of the counterfeiting.
and insignias and (4) False Testimonies  Under this, the participation of the offender is in
effect that of an accessory. Although the general
C. Frauds or acts involving machinations in rule is that he should be punished by a penalty
public biddings and Combinations and of 2 degrees lower, under Art 162 he is punished
Monopolies in Restraint of Trade and by a penalty only 1 degree lower.
Commerce
II. Those involving coins: (a) Counterfeit/false or
A. FORGERIES (ii) mutilated coins

I. Those involving the seal of the government, A. Counterfeit/false coins- those that are forged
the signature, or stamp of the Chief or not authorized by the Central bank to be
Executive. minted for circulation as legal tender, regardless
if they are of intrinsic value. They include coins
 The acts punished are: (1). The act of which have been demonetized (no longer
counterfeiting the seal of the government (2). circulated) so as to prevent the accused from
Forging the signature of the Chief Executive or using his skill upon genuine coins.
his stamp and (3). Using the forged signature
or counterfeit seal or stamp Article 163. Making and Importing and
Uttering False Coins

Article 161. Counterfeiting the Great Seal of Elements

the Government of the Philippine Islands,
Forging the Signature or Stamp of the Chief 1. There be false or counterfeited coins;
Executive 2. Offender either made, imported or uttered
such coins;
Acts punished 3. In case of uttering such false or counterfeited
coins, he connived with the counterfeiters or
1. Forging the great seal of the Government of importers.
the Philippines;
2. Forging the signature of the President; The acts punished
3. Forging the stamp of the President.
a. The act of counterfeiting, minting or making
 The act of forging the signature is ordinarily COUNTERFEITING – means the imitation of
punished as falsification but it is set apart as a legal or genuine coin.
distinct crime with a much higher penalty
(reclusion temporal) to emphasize its gravity. Q: X has in his possession a coin which was
 The act of counterfeiting or forging the signature legal tender at the time of Magellan and is
must be on what purports to be an official considered a collector‘s item. He
document purporting to have been signed by the manufactured several pieces of that coin. Is
Chief Executive in his official capacity, otherwise the crime committed?
the offense is ordinary falsification.
 Example: (i). In what purports to be an A: Yes. It is not necessary that the coin be of
appointment paper or grant of a pardon bearing legal tender. The provision punishing
the heading of the Office of the President (ii). counterfeiting does not require that the money
Forging the signature in a private thank- you- be of legal tender and the law punishes this
letter is falsification. even if the coin concerned is not of legal
tender in order to discourage people from
Article 162. Using Forged Signature or practicing their ingenuity of imitating money.
Counterfeit Seal or Stamp If it were otherwise, people may at the
beginning try their ingenuity in imitating
Elements money not of legal tender and once they
acquire expertise, they may then counterfeit
1. The great seal of the Republic was counterfeited money of legal tender.
or the signature or stamp of the Chief Executive
was forged by another person; b. The act of importing
2. Offender knew of the counterfeiting or forgery; c. The act of uttering - passing of counterfeited
3. He used the counterfeit seal or forged signature coins as legal tender
or stamp. d. Possession with intent to utter. Thus possession
of coins as a collection is not punished
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 FEIGNING - to represent by false appearance  There must be intention to mutilate. The
when no original exists. offender must deliberately reduce the precious
metal in the coin. Deliberate intent arises only
Kinds of coins the counterfeiting of which is when the offender collects the precious metal
punished dust from the mutilated coin. If the offender
does not collect such dust, intent to mutilate is
1. Silver coins of the Philippines or coins of the absent, but Presidential Decree No. 247 will
Central Bank of the Philippines; apply.
2. Coins of the minor coinage of the Philippines
or of the Central Bank of the Philippines; Presidential Decree No. 247 (Defacement,
3. Coin of the currency of a foreign country. Mutilation, Tearing, Burning or Destroying
Central Bank Notes and Coins)
B. Mutilated Coins- these are genuine coins or
coins of legal tender whose intrinsic value has It shall be unlawful for any person to willfully
been diminished due to the diminution of their deface, mutilate, tear, burn, or destroy in any
metallic contents. manner whatsoever, currency notes and coins
issued by the Central Bank. It also punishes the
Acts punished act of amassing coins in excess of P50.00

1. Mutilating coins or any act upon the coin the Mutilation under the Revised Penal Code is true
purpose of which is to accumulate the metallic only to coins. It cannot be a crime under the
contents, such as by chipping off a portion, Revised Penal Code to mutilate paper bills
scraping its surface or boring a hole. because the idea of mutilation under the code is
2. Selling, Importing or uttering such mutilated collecting the precious metal dust. However,
coins under Presidential Decree No. 247, mutilation is
3. Possession with intent to utter not limited to coins.
Article 164. Mutilation of Coins
Q: The people playing cara y cruz, before they
Requisites of mutilation under the Revised throw the coin in the air would rub the money to
Penal Code the sidewalk thereby diminishing the intrinsic
value of the coin. Is the crime of mutilation
(1) Coin mutilated is of legal tender; committed?
(2) Offender gains from the precious metal dust
abstracted from the coin; and A: Mutilation, under the Revised Penal Code, is
(3) It has to be a coin. not committed because they do not collect the
precious metal content that is being scraped
Acts punished from the coin. However, this will amount to
violation of Presidential Decree No. 247.
1. Mutilating coins of the legal currency, with the
further requirements that there be intent to Q: When the image of Jose Rizal on a five-peso
damage or to defraud another; bill is transformed into that of Randy Santiago, is
there a violation of Presidential Decree No. 247?
 Mutilation – to take off part of the metal
either by filling it or substituting it for A: Yes. Presidential Decree No. 247 is violated
another metal of inferior quality. To by such act.
accumulate the metallic contents, such as by
chipping off a portion, scraping its surface or Q: Sometime before martial law was imposed,
boring a hole. This refers to the deliberate the people lost confidence in banks that they
act of diminishing the proper metal contents preferred hoarding their money than depositing
of the coin either by scraping, scratching or it in banks. Former President Ferdinand Marcos
filling the edges of the coin and the offender declared upon declaration of martial law that all
gathers the metal dust that has been bills without the Bagong Lipunan sign on them
scraped from the coin. will no longer be recognized. Because of this,
the people had no choice but to surrender their
 The coin must be of legal tender or current money to banks and exchange them with those
coins of the Phils. with the Bagong Lipunan sign on them.
However, people who came up with a lot of
2. Importing or uttering such mutilated coins, with money were also being charged with hoarding
the further requirement that there must be for which reason certain printing presses did the
connivances with the mutilator or importer in stamping of the Bagong Lipunan sign themselves
case of uttering. to avoid prosecution. Was there a violation of
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Elements
A: Yes. This act of the printing presses is a
violation of Presidential Decree No. 247. 1. Actually uttering; and
2. Knowledge.
Q: An old woman who was a cigarette vendor in
Quiapo refused to accept one-centavo coins for  Possession or uttering does not require that
payment of the vendee of cigarettes he coins be legal tender
purchased. Then came the police who advised  Crime under this Article includes constructive
her that she has no right to refuse since the possession or the subjection of thing to one‘s
coins are of legal tender. On this, the old control
woman accepted in her hands the one-centavo  R.A. 427 punishes possession of silver or nickel
coins and then threw it to the face of the vendee coins in excess of P50.00. It is a measure of
and the police. Was the old woman guilty of national policy to protect the people from the
violating Presidential Decree No. 247? conspiracy of those hoarding silver or nickel
coins and to preserve and maintain the economy.
A: She was guilty of violating Presidential Decree
No. 247 because if no one ever picks up the III. Forgeries committed upon Treasury or Bank
coins, her act would result in the diminution of Notes, Obligations and Securities
the coin in circulation.
 This is related to Banking and Finance. The
Q: A certain customer in a restaurant wanted to subject matter are papers in the form of
show off and used a P 20.00 bill to light his obligations and securities issued by the
cigarette. Was he guilty of violating Presidential government as its own obligations which are also
Decree No. 247? sued as legal tender.
 Not included are paper bills as the crime relative
A: He was guilty of arrested for violating of to them is ―counterfeiting‖
Presidential Decree No. 247. Anyone who is in  They do not include commercial checks
possession of defaced money is the one who is  The reason is to maintain the integrity of the
the violator of Presidential Decree No. 247. The currency and to ensure the credit and standing
intention of Presidential Decree No. 247 is not to of the government
punish the act of defrauding the public but what  Examples:
is being punished is the act of destruction of
money issued by the Central Bank of the 1. Bonds issued by the Land Bank in connection
Philippines. with the Land Reform Program
2. Postal Money Orders
Note that persons making bracelets out of some 3. Treasury Warrants
coins violate Presidential Decree No. 247. 4.Treasury Certificates
5. Sweepstake Tickets ( Lotto tickets?)
The primary purpose of Presidential Decree No.
247 at the time it was ordained was to stop the The Acts punished
practice of people writing at the back or on the
edges of the paper bills, such as "wanted: pen 1. The act of forging or Forgery
pal". 2. The act of importing or uttering
3. The act of possession or use
Article 165. Selling of False or Mutilated Coin,
without Connivance (a). Possession must be with intent to utter
(b). Possessor must know the notes are forged
Acts punished

1. Possession of coin, counterfeited or mutilated by Article 166. Forging Treasury or Bank Notes or
another person, with intent to utter the same, Other Documents Payable to Bearer;
knowing that it is false or mutilated; Importing and Uttering Such False or Forged
Notes and Documents
Elements
Acts punished
1. Possession;
2. With intent to utter; and 1. Forging or falsification of treasury or bank notes
3. Knowledge. or other documents payable to bearer;

2. Actually uttering such false or mutilated coin, FORGING – is committed by giving to a

knowing the same to be false or mutilated. treasury or banknote or any document payable 15
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and genuine document. Such as the act of Article 168. Illegal Possession and Use of
manufacturing or producing fake treasury False Treasury or Bank Notes and Other
warrants. Instruments of Credit

FALSIFICATION – is committed by erasing, Elements

substituting, counterfeiting, or altering, by any
means, the letters, figures, words or signs 1. Any treasury or bank note or certificate or other
contained therein. (Art 169, RPC) obligation and security payable to bearer, or any
instrument payable to order or other document
 if the note does not resemble a true and of credit not payable to bearer is forged or
genuine document in that it can not possibly falsified by another person;
fool any person the act is considered as 2. Offender knows that any of those instruments is
frustrated forgery forged or falsified;
 Where the accused encashed a treasury 3. He either –
warrant by posing and signing as payee, the a. uses any of such forged or falsified
crime is falsification. instruments; or
b. possesses with intent to use any of such
2. Importation of such false or forged obligations or forged or falsified instruments.
notes;
 The accused has the burden to give a
Bringing the coins into the Phils. It presupposes satisfactory explanation of his possession of
that obligations or notes are forged or falsified in forged bills. Mere possession of false money
a foreign country. bill, without intent to use it to the damage of
another, is not a crime
3. Uttering of such false or forged obligations or
notes in connivance with the forgers or
importers. ART 169 - HOW FORGERY IS COMMMITTED

This means offering obligations or notes knowing How Committed:

them to be false or forged, whether such offer is
accepted or not, with a representation, by words 1) By giving to treasury or bank note or any
or actions, that they are genuine and with an instrument payable to bearer or to order the
intent to defraud. appearance of a true and genuine document

What May be Counterfeited Under Art 166: 2) By erasing, substituting, or altering by any means
1. Treasury or bank notes; the figures, letters, words or signatures contained
2. Certificates; therein
3. Other obligations and securities, payable to
bearer.  Includes falsification and counterfeiting
 Falsifying lotto or sweepstakes ticket constitutes
 Forging PNB checks is not included under the complex crime of attempted estafa through
Article 166. that is falsification of falsification of a gov‘t security
commercial document under Article 172.  Forgery under the Revised Penal Code applies to
 Obligation or security includes bonds, papers, which are in the form of obligations and
certificate of indebtedness, bills, national bank securities issued by the Philippine government as
notes, coupons, treasury notes, certificates of its own obligations, which is given the same status
deposit, checks, drafts for money, and as legal tender. Generally, the word
sweepstakes money ―counterfeiting‖ is not used when it comes to
notes; what is used is ―forgery.‖ Counterfeiting
Article 167. Counterfeiting, Importing, and refers to money, whether coins or bills.
Uttering Instruments Not Payable to
Bearer  The Revised Penal Code defines forgery under
Article 169. Notice that mere change on a
Elements document does not amount to this crime. The
essence of forgery is giving a document the
1. There is an instrument payable to order or other appearance of a true and genuine document. Not
documents of credit not payable to bearer; any alteration of a letter, number, figure or design
2. Offender either forged, imported or uttered such would amount to forgery. At most, it would only
instrument; be frustrated forgery.
3. In case of uttering, he connived with the forger
or importer.  When what is being counterfeited is obligation or
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given a status of money or legal tender, the crime that it is not genuine. It can only be a consummated
committed is forgery. forgery if the document which purports to be genuine
is given the appearance of a true and genuine
Q: Instead of the peso sign (P), somebody replaced it document. Otherwise, it is at most frustrated.
with a dollar sign ($). Was the crime of forgery
committed?
IV. Forgeries Upon Documents
A: No. Forgery was not committed. The forged
instrument and currency note must be given the  The proper term is Falsification
appearance of a true and genuine document. The  Falsification is the commission of any of the eight
crime committed is a violation of Presidential Decree acts mentioned in Article 171 on legislative (only
No. 247. Where the currency note, obligation or the act of making alteration), public or official,
security has been changed to make it appear as one commercial, or private documents, or wireless, or
which it purports to be as genuine, the crime is telegraph messages.
forgery. In checks or commercial documents, this The term forgery as used in Article 169 refers to
crime is committed when the figures or words are the falsification and counterfeiting of treasury or
changed which materially alters the document. bank notes or any instruments payable to bearer
or to order.
Q: An old man, in his desire to earn something,
scraped a digit in a losing sweepstakes ticket, cut out a Note that forging and falsification are crimes under
digit from another ticket and pasted it there to match Forgeries.
the series of digits corresponding to the winning
sweepstakes ticket. He presented this ticket to the  Document (in the legal sense) is :
Philippine Charity Sweepstakes Office. But the
alteration is so crude that even a child can notice that (1) any writing, whether paper based or in any
the supposed digit is merely superimposed on the digit solid surface, which is complete in itself and
that was scraped. Was the old man guilty of forgery? capable of creating rights or extinguishing
obligations, or defining the relations between
A: Because of the impossibility of deceiving whoever persons. Examples: deeds and contracts,
would be the person to whom that ticket is presented, receipts, promissory notes, checks.
the Supreme Court ruled that what was committed was
an impossible crime. Note, however, that the decision (2) a writing used as evidence of the facts
has been criticized. In a case like this, the Supreme contained in the document such as death/birth
Court of Spain ruled that the crime is frustrated. certificates; clearances, medical records, x-
Where the alteration is such that nobody would be rays; driver‘s license.
deceived, one could easily see that it is a forgery, the
crime is frustrated because he has done all the acts of  a customer in a hotel did not write his name
execution which would bring about the felonious on the registry book, which was intended to be
consequence but nevertheless did not result in a a memorial of those who got in and out of that
consummation for reasons independent of his will. hotel. There is no complete document to speak
of.
Q: A person has a twenty-peso bill. He applied Note that a check is not yet a document when it is not
toothache drops on one side of the bill. He has a completed yet. If somebody writes on it, he makes a
mimeograph paper similar in texture to that of the document out of it
currency note and placed it on top of the twenty-peso  A mere blank form of an official document is
bill and put some weight on top of the paper. After not in itself a document
sometime, he removed it and the printing on the  General Classification: (In falsification, it is
twenty-peso bill was reproduced on the mimeo paper. essential to specify the document falsified)
He took the reverse side of the P20 bill, applied
toothache drops and reversed the mimeo paper and 1. Falsification of Legislative Document
pressed it to the paper. After sometime, he removed it punished under Art. 170- bills, resolutions,
and it was reproduced. He cut it out, scraped it a little ordinances whether approved or pending
and went to a sari-sari store trying to buy a cigarette approval, by any legislative body
with that bill. What he overlooked was that, when he a). the act of falsification is limited to
placed the bill, the printing was inverted. He was alterations of a genuine legislative
apprehended and was prosecuted and convicted of document
forgery. Was the crime of forgery committed? b). if by any other means, such as simulating a
legislative document, the offense is
A: The Supreme Court ruled that it was only frustrated ordinary falsification.
forgery because although the offender has performed
all the acts of execution, it is not possible because by 2. Falsification of a Non-Legislative
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simply looking at the forged document, it could be seen Document
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a). Document proper under Article 171 and (ii). those which are intended to form part
172 of the public record (Public by
b). Wireless, Telegram, cablegram, telephone Intention)
Messages under Article 173
c). Certificates under Article 174 Per Monteverde vs. PP ( Aug. 12,
2000) involving falsification of sales
 Kinds of Documents Proper invoices required by the BIR, it was
held: : ― If the document is intended
1. Public Documents: they consists of the by law to be part of the public or
following official record, the preparation of
which being in accordance with rules
a). Those which embody the official acts or and regulations issued by the
records of acts of the sovereign authority, government, the falsification of that
official bodies and tribunals, and of the document, although it was a private
public officers, legislative, judicial and document at the time of the
executive, whether of the Philippines or of falsification ton, is regarded as
a foreign country such as Decisions / falsification of public or official
Resolutions; Administrative Orders; documents‖
Marriage Contract; Oaths of Office (Public
Document Proper) Examples: Falsification of Civil Service
or Bar Exam Booklets; Application
b). Those created, executed, or issued by a letters and personal data sheets sent
public officer or in which he participates, to personnel officers.
virtute officii (by virtue of his office)
such as clearances; certificates of Query: What about attendance sheets
appearance, designation of personnel; during seminars or conferences? If
receipts. These are the so called ―Official the purpose is to use as evidence of
Documents‖. those who attend and reference for
sanction, the crime would be
Public document is broader than the term falsification of public document. If
official document. Before a document only for personal purpose, falsification
may be considered official, it must first be of private document.
a public document. Thus all official
documents are public documents but not Note: In case of falsification of Travel
all public documents are official Documents (Visa, Passport, and any
documents. To become an official document submitted in connection
document, there must be a law which therewith) the law applicable is R.A.
requires a public officer to issue or to 8239 or the Philippine Passport
render such document. Example: A Act.
cashier is required to issue an official
receipt for the amount he receives. The 2. Commercial Documents:
official receipt is a public document which
is an official document. (a) those used by merchants or business
people to promote trade or credit
c). Those acknowledged before a Notary Public transactions or commercial dealings; and
such as deeds and conveyances except
last wills and testaments (b) those defined and regulated by the Code
of Commerce or other commercial laws..
d). Private documents (punished as
falsification of public documents): Examples: commercial checks; sales receipts
i). which already formed part of the public and invoices; trust receipts; deposit and
records (Public by Incorporation) withdrawal slips and bank passbooks; tickets
such as private deeds submitted to issued to passengers; enrollment forms;
the office of the Register of Deeds; grades; warehouse receipts; airway bills; bank
acknowledgment letter sent to the checks, cash files, journals, books, ledgers,
Local \Civil Registrar; Protest letters drafts, letters of credit and other negotiable
to the Assessor‘s Office; libelous instruments.
letters offered as exhibits in a trial;
letters formally seeking opinions  Cash disbursement vouchers or receipts
evidencing payments are not commercial
documents
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.
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3. Private Documents - any other document, a certified true copy of a birth certificate
deed or instruments executed by private but inadvertently copied the wrong entries
persons without the intervention of a notary (iii) a person who signs a check to
public or of other persons legally authorized, accommodate a payee without verifying
by which some disposition or agreement is the payee‘s identification
proved, evidenced or set forth.
b). Thus the accused who is charged with
Examples: unnotarized deeds, letters, private intentional falsification may be convicted
receipts, class cards, time records in private for falsification thru negligence without
employment. Vouchers of business people are amending the Information because the
private, not commercial, documents former includes the latter (see PP vs Uy
(Batulanon vs. PP, 502 SCRA 35) 475 SCRA 248)
3. As to the liability of Heads of Offices as final
Importance of distinguishing Falsification of approving authority if it turns out the
Public from Falsification of Private document to which they affixed their
Documents signatures contains falsities:

1. As to penalty: a higher penalty is imposed for a). The Arias Principle (Arias vs.
falsification of public documents Sandiganbayan, 180 SCRA 315) as
reiterated in Magsuce vs. Sandiganbayan
2. As to modes of commission: there are 8 ways (Jan. 3, 1995) holds: ―All heads of offices
of falsifying a public documents as against 7 as have a right to rely to a reasonable extent
to private documents on their subordinate and on the good faith
of those who prepared the documents,
3. As to complexing with Estafa: Estafa cannot be and are not liable for the falsification‖
complexed with Falsification of Private
document. The reason is because both have a b). Exceptions: (i). Where there is a clear
common element which is damage evidence of conspiracy with the authors
(ii) if through their negligence, they
a). The crime is falsification if the deception brought about the commission of the
cannot be committed without falsification, crime. Thus in PP. vs. Rodis the Head of
i.e. the falsification is committed as a Office was held liable where the document
means to commit estafa. signed by him contained anomalies which
were glaring in the document.
b). It is estafa if the estafa can be committed
without the necessity of falsifying a 4. The following are accepted as defenses
document
a). Good faith and lack of intent to pervert the
4. As to requirement of damage: In falsification of truth. As in the case of a co-employee
a private document the act of falsification who signed for another in the payroll
must be coupled with either (a) actual damage because the latter was sick
even if there was no intent to cause damage
or (b) an intent to cause damage even if no b). Alterations which are in the nature of
actual damage resulted. In falsification of corrections such as changing the civil
public document, the gravamen of the offense status from single to married in a
is the perversion of truth; the loss of faith and Community Tax Certificate
confidence by the public in the document even
if there is no actual damage t the public c). Alterations which do not affect the integrity
or veracity of the document. Example:
Principles Involving Falsification: The Certification by the treasurer that he
paid the salary on July 10 when in truth it
1. The Falsification maybe complexed with the was on July 12
crimes of Estafa (save private documents)
malversation or theft. d) Minor inaccuracies as in a deed of sale
which declared the consideration was paid
2. Maybe committed intentionally or through in cash when it was paid in two
negligence installments

a). Examples through negligence: (i) The 5. Presumption of Authorship of the Falsification:
Register of Deeds who issued a duplicate In the absence of satisfactory explanation, one
title without noting on its back a notice of found in possession of and who used a forged
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the encumbrances (ii) A Clerk who issues document is the forger of said document. If a
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person had in his possession a falsified which normally appears in genuine
document and he made sue of it, taking handwriting
advantage of it and profiting thereby, the clear
presumption is that he is the material author Article 170. Falsification of Legislative
of the falsification. ( Nierva vs. PP. 503 SCRA Documents
114).
Elements
6. There is a ruling that generally, falsification of
public/commercial documents have no 1. There is a bill, resolution or ordinance enacted or
attempted or frustrated stages unless the approved or pending approval by either House of
falsification is so imperfect that it may be the Legislature or any provincial board or municipal
considered as frustrated. (Personal Opinion: council;
the crime should be consummated since what 2. Offender alters the same;
was frustrated was not the act but the purpose 3. He has no proper authority therefor;
of the offender) 4. The alteration has changed the meaning of the
documents.
7. There are as many falsifications as there are
documents falsified; or as there are separate  Accused must not be a public official entrusted
acts of falsification committed by one person with the custody or possession of such document,
within the same period of time. otherwise Art 171 applies.
 Offender may be a public official or a private
a). The falsification of several signatures in individual.
one payroll is only one falsification  The bill, resolution or ordinance must be genuine.
 The words "municipal council" should include the
b). Several checks falsified at the same time city council or municipal board – Reyes.
gives rise to several separate crimes
Article 171. Falsification by Public Officer,
8. Falsification is not a continuing crime (NOT an Employee or Notary or Ecclesiastical Minister
instantaneous crime)
Coverage
Proof of Falsification
This article provides: (1) the penalty of falsification if
 An allegation of forgery and a perfunctory committed by a public officer or employee or a notary
comparison of the signature/handwritings by or an ecclesiastical minister. The penalty is higher if
themselves cannot support a claim of forgery, committed by public officer than if committed by a
as forgery cannot be presumed and must be private person. The document may be any document.
proved by clear, positive and convincing (2) the eight acts of falsification.
evidence and the burden of proof lies on the
party alleging forgery. Elements

 Criteria to determine forgery or falsification: 1. Offender is a public officer, employee, or notary

per Ladignon vs. CA (390 Phil. 1161 as public;
reiterated in Rivera vs. Turiano ( March 7,
2007)  As for an ecclesiastic, the document he
falsified must affect the civil status of a
The process of identification must include not person, else he will be considered as a private
only the material differences between or person. The usual document involved is a
among the signatures/handwritings but a marriage contract
showing of the following:
2. He takes advantage of his official position;
(i) the determination of the extent, kind and
significance of the resemblance and When:
variation (of the handwriting or signature)  He has the duty to make or prepare or
otherwise to intervene in the preparation of
(ii) that the variation is due to the operation of the document
a different personality and not merely an
expected and inevitable variation found in The public officer must take advantage of his
the genuine writing of the same writer official position or that there was abuse of
office. By this is meant that his functions
(iii) that the resemblance is a result more or include participating in the preparation,
less of a skillful imitation and not merely recording, keeping, publishing or sending out
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a habitual and characteristic resemblance to the public of the falsified document
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otherwise he will be punished as a private voter, posing as payee if a negotiable
person. As for instance: secretaries, the Clerk instrument in order to encash the same
of Court; the record officers; those who issue
receipts or licenses; the Register of Deeds; c. ATTRIBUTING TO PERSONS WHO HAVE
Local Civil Registrar. PARTICIPATED IN AN ACT OR PROCEEDING
STATEMENTS OTHER THAN THOSE IN FACT
If he did not take advantage of his official MADE BY THEM
position, he would be guilty of falsification of
public document by a private individual. Requisites:
 He has the official custody of the document a) that persons participated in an act or
which he falsifies proceeding
b) that such person or persons made
3. He falsifies a document by committing any of the statements in that act or proceeding
modes of falsification. c) that the offender in making a document,
attributed to such person, statements
DOCUMENT- any written statement by which a other than those in fact made by such
right is established or an obligation extinguished or person.
by which a fact may be proven or affirmed.
 This is twisting the statements or putting
Modes of Falsifying a Document: words into the mouth of another
a. BY COUNTERFEITING, IMITATING ANY  Substituting a forged will where the
HANDWRITING, SIGNATURE OR RUBRIC. accused is now named as an heir in lieu of
the original where he was not so named
Elements:  Where the accused was instructed to
prepare a Special Power of Attorney over a
1. that there be an intent to imitate, or an parcel of land, with himself as the agent
attempt to imitate; and but he instead prepared a deed of sale
2. that the two signatures or handwritings, the with himself as the vendee
genuine and the forged, bear some
semblance, to each other. d. MAKING UNTRUTHFUL STATEMENTS IN A
NARRATION OF FACTS
 To counterfeit a handwriting or signature
is to create one that is so similar to the Requisites:
genuine as to make it difficult to a) That the offender makes in a document
distinguish and thus easily fool the public. statements in a narration of facts
This act includes creating or simulating a b) That he has the legal obligation to disclose
fictitious handwriting or signature the truth of the facts narrated by him
 Lack of similitude/imitation of a genuine c) That the facts narrated by the offender
signature will not be a ground for are absolutely false
conviction under par. 1 but such is not an d) That the perversion of truth in the
impediment to conviction under par.2. narration of facts was made with the
wrongful intent of injuring a third person
b. CAUSING IT TO APPEAR THAT PERSONS HAVE (accused knows what he imputes is false)
PARTICIPATED IN ANY ACT OR PROCEEDING
WHEN THEY DID NOT IN FACT SO  The falsity involves a material fact
PARTICIPATE  Untruthful statements are not contained in
an affidavit or a statement required by law
Requisites: to be sworn to.
a) that the offender caused it to appear in a  by legal obligation is meant that the
document that a person or persons law requires a full disclosure of facts such
participated in an act or proceeding (refers as in a public official‘s Statements of
to document) Assets and Liabilities; the Personal Data
b) that such persons did not in fact so Sheet submitted to the NBI; the contents
participate in the action proceeding of an Application for Marriage; the
Community Tax Certificate
 There is no need to imitate the signature  Narration of facts means an assertion of
or handwriting a fact and does not include statements of
 This includes simulating a public document opinion or conclusions of law. Thus when
like a Warrant of Arrest as having been the accused placed himself as ―eligible‖ in
issued by a judge his statement of candidacy when in truth
 Examples: impersonating a person in a he is disqualified, this is not a narration of
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document; voting in place of a registered fact but a conclusion of law. Similarly, the
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accused as claimant to a land stated in his  The change must affect the integrity of
application that he entitled to the the document. It must make the
ownership when under the law he is document speak something false so that
disqualified, is not liable alterations to make it speak the truth
 There is no falsification if there is some cannot be falsification.
colorable truth in the statement of facts by  Examples
the accused 1.Changing the grades in one‘s Transcript
 False statements in an application form of of Records
the Civil Service, which was under oath, 2.Changing one‘s time of arrival in the
for police examination is perjury not DTR
falsification 3.Changing the stated consideration a
 But when a third person, not the Affiant, deed of sale
alters a prepared Affidavit, the crime 4.Deleting a condition in a contract of
committed by him is falsification under lease
mode number 6
 This kind of falsification may be g. ISSUING IN AN AUTHENTICATED FORM A
committed by omission. DOCUMENT PURPORTING TO BE A COPY OF
 Enemecio v. Office of the AN ORIGINAL WHEN NO SUCH ORIGINAL
Ombudsman,1/13/04 EXIST, OR INCLUDING IN SUCH COPY A
As the ombudsman correctly pointed out, STATEMENT CONTRARY TO, OR DIFFERENT
Enemecio was not able to point to any law FROM, THAT OF THE GENUINE ORIGINAL
imposing upon Bernante the legal
obligation to disclose where he was going  This can only be committed by the Official
to spend his leave of absence. ―Legal Custodian of documents who takes
obligation‖ means that there is a requiring advantage of their position.
the disclosure of the truth of the facts  Example: Issuing a Certified True Copy of a
narrated. Bernante may not be convicted birth certificate of a person when no such
of the crime of falsification of public certificate exists or
document by making false statements in  Issuing a true copy of a title and indicating
narration of facts absent any legal therein the land is mortgaged when no
obligation to disclose where he would such encumbrance exist on the original on
spend his vacation leave and forced leave. file with the office
 Intent to gain or prejudice is not
e. ALTERING TRUE DATES necessary because it is the interest of the
community that is guaranteed.
 This requires that the date must be
material as in the date of birth or h. INTERCALATING ANY INSTRUMENT OR NOTE
marriage; date of arrest; date when a RELATIVE TO THE ISSUANCE THEREOF IN A
search warrant was issued; date of taking PROTOCOL, REGISTRY OR OFFICIAL BOOK
the oath of office
 The alteration of the date or dates in a  Example: Inserting a Birth Certificate in
document must affect either the veracity of the recorded of the Civil Registrar to make
the document or the effects thereof. it appear the birth was recorded
 Alteration of dates in official receipts to  This involves a genuine document
prevent discovery of malversation is
falsification Persons who may be held liable

f. MAKING ALTERATIONS (CHANGE) OR 1. Public officer, employee, or notary public who

INTERCALATIONS (INSERTIONS) IN A takes advantage of his official position
GENUINE DOCUMENT WHICH CHANGES ITS
MEANING If offender does not take advantage of his public
position, he may still be liable for falsification of
Requisites: documents by a private person under Art 172.
a) That there be an alteration or 2. Ecclesiastical minister if the act of falsification
intercalation (insertion) on a document may affect the civil status of persons
b) That it was made on a genuine document 3. Private individual, if in conspiracy with public
c) That the alteration and intercalation has officer
changed the meaning of the document
d) That the change made the document NOTE: In the 1st, 2nd, 6th, 7th (second part), 8th mode of
speak something false falsification, there must be a genuine document. The
rest, it is enough that there must an appearance of a
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true and genuine document.
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 There are only seven acts of falsification of a
Q: In a case where a lawyer tried to extract money private person. In the falsification of a private
from a spinster by typing on a bond paper a subpoena document the damage includes damage to
for estafa. The spinster agreed to pay. The spinster honor.
went to the prosecutor‘s office to verify the exact  It is not necessary that the offender profited
amount and found out that there was no charge or hoped to profit
against her. The lawyer was prosecuted for  A document falsified as a necessary means to
falsification. He contended that only a genuine commit another crime (comlex crime) must
document could be falsified. Rule. be public, official or commercial. Hence,
there is no complex crime of estafa
A: As long as any of the acts of falsification is through falsification of private document
committed, whether the document is genuine or not, because the immediate effect of the latter is
the crime of falsification may be committed. Even the same as that of estafa
totally false documents may be falsified.  If the estafa was already consummated
at the time the falsification of a private
Article 172. Falsification by Private Individual document was committed for the purpose
and Use of Falsified Documents of concealing estafa, the falsification is not
punishable. As regards the falsification of the
Acts punished private document, there was no damage or
intent to cause damage
1. Falsification of public, official or commercial  The crime is falsification of public
document by a private individual; documents even if the falsification took
pace before the private document
Elements became part of the public records.

a. Offender is a private individual or public 3. Use of falsified document (including Introduction

officer or employee who did not take thereof in any judicial proceeding)
advantage of his official position; Elements
b. He committed any act of falsification
enumerated in Art 171; In introducing in a judicial proceeding –
c. The falsification was committed in a public,
official, or commercial document or letter of a. Offender knew that the document was falsified
exchange. by another person;
b. The false document is in Articles 171 or 172 (1
 Take note of the definition of public, official, or 2);
and commercial documents. c. He introduced said document in evidence in
 Under this paragraph, damage is not any judicial proceeding.
essential, it is presumed
 Lack of malice or criminal intent may be  In introducing a falsified document in a judicial
put up as a defense under this article proceeding, damage is not required. Example:
 The possessor of falsified document is The act of the defendant in introducing a
presumed to be the author of the falsified receipt to show that the debt was
falsification paid.

2. Falsification of private document by any person; In use in any other transaction –

Elements a. Offender knew that a document was falsified

by another person;
a. Offender committed any of the acts of b. The false document is embraced in Articles
falsification except Article 171(7), that is, 171 or 172 (1 or 2);
issuing in an authenticated form a document c. He used such document (not in judicial
purporting to be a copy of an original proceeding);
document when no such original exists, or d. The use caused damage to another or at least
including in such a copy a statement contrary used with intent to cause damage.
to, or different from, that of the genuine
original,  In the crime use of a falsified document, the
b. Falsification was committed in any private user is not the falsifier but a third person, who
document; must know the falsity of the document.
c. Falsification causes damage to a third party or at  The user of the falsified document is
least the falsification was committed with deemed the author of the falsification, if:
intent to cause such damage. 1. the use was so closely connected in time
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2. the user has the capacity of falsifying the document does not qualify as a document in the legal
document sense.
Q: Can the writing on the wall be considered a
Falsification of Falsification of document?
PRIVATE PUBLIC/ OFFICIAL
Documents Documents A: Yes. It is capable of speaking of the facts stated
Damage to third Damage to third party therein. Writing may be on anything as long as it is a
party is an element is immaterial; product of the handwriting, it is considered a
of the offense What is punished is document.
the violation of public
faith and perversion of Article 173. Falsification of Wireless, Cable,
truth which the Telegraph and Telephone Messages, and Use of
document proclaims Said Falsified Messages
No complex crime of There is complex crime
estafa thru when committed as a Acts punished
falsification of means to commit
private document. estafa. 1. Uttering fictitious wireless, telegraph or telephone
message;
Falsification by Falsification by
Private Individual Public Officer (Art Elements
(Art 172) 171)
Prejudice to 3rd Prejudice to 3rd person 1, Offender is an officer or employee of the
person is taken into is immaterial. government or an officer or employee of a
account. If damage private corporation, engaged in the service of
is not apparent or if sending or receiving wireless, cable or
no intent to cause it, telephone message;
no falsification. 2. He utters fictitious wireless, cable, telegraph
or telephone message.
Q: A is one of those selling residence certificates in
Quiapo. He was brought to the police precincts on 2. Falsifying wireless, telegraph or telephone
suspicion that the certificates he was selling to the message;
public proceed from spurious sources and not from the
Bureau of Treasury. Upon verification, it was found out Elements
that the certificates were indeed printed with a booklet
of supposed residence certificates. What crime was 1, Offender is an officer or employee of the
committed? government or an officer or employee of a
private corporation, engaged in the service of
A: Crime committed is violation of Article 176 sending or receiving wireless, cable or
(manufacturing and possession of instruments or telephone message;
implements for falsification). A cannot be charged of 2. He falsifies wireless, cable, telegraph or
falsification because the booklet of residence telephone message.
certificates found in his possession is not in the nature Examples: making up a false ―break-up‖ telegram or
of ―document‖ in the legal sense. They are mere forms decreasing the number of the words in a message
which are not to be completed to be a document in the even if the contents are not changed
legal sense. This is illegal possession with intent to use
materials or apparatus which may be used in 3. Using such falsified message.
counterfeiting/forgery or falsification.
Elements
Q: Public officers found a traffic violation receipts from
a certain person. The receipts were not issued by the 1. Offender knew that wireless, cable, telegraph,
Motor Vehicle Office. For what crime should he be or telephone message was falsified by an
prosecuted for? officer or employee of the government or an
officer or employee of a private corporation,
A: It cannot be a crime of usurpation of official engaged in the service of sending or receiving
functions. It may be the intention but no overt act was wireless, cable or telephone message;
yet performed by him. He was not arrested while 2. He used such falsified dispatch;
performing such overt act. He was apprehended only 3. The use resulted in the prejudice of a third
while he was standing on the street suspiciously. party or at least there was intent to cause
Neither can he be prosecuted for falsification because such prejudice.
the document is not completed yet, there being no
name of any erring driver. The document remains to 16
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The crime of using may be committed by any a. Physician or surgeon, in connection with the
person. The offender may not be connected to the practice of his profession, issues a false
government or to such corp. certificate;
 A private individual may be a principal by b. Public officer issues a false certificate of merit
inducement but not by direct participation of service, good conduct or similar
 Act No 1851, Sec 4. punishes private individuals circumstances;
who forge or alter telegram. c. Private person falsifies a certificate falling
within the classes mentioned in the two
Section 5 preceding subdivisions.
Crimes Affecting Medical Certificate, Certificates
of Merit and the Like 2. Offender knows that the certificate was false;

Article 174. False Medical Certificates, False 3. He uses the same.

Certificates of Merits or Service, Etc.
 When any of false certificates mentioned in Art 174
Persons liable and Acts Punished is used in judicial proceedings, Art 172 does not
apply because it is limited only to those false
1. Physician or surgeon who, in connection with documents embraced in Art 171 and 172.
the practice of his profession, issues a false
certificate (it must refer to the illness or injury of a Article 176. Manufacturing and Possession of
person); Instruments or Implements for Falsification

[The crime here is false medical certificate by a Acts punished:

physician.]
1. Making any stamps, dies, marks, or other
The contents are not true in that the person was instrument or implements for counterfeiting or
never examined; or that he actually had no illness; falsification.
or that the illness is not as serious as stated in the
certificate; or that the period of confinement or  Examples: false seals, false branding
rest is not as stated therein. instruments
 The implements need not be a complete set. It
2. Public officer who issues a false certificate of merit is enough that they may be employed by
of service, good conduct or similar circumstances; themselves or together with other implements
to commit the crime of counterfeiting or
[The crime here is false certificate of merit or falsification.
service by a public officer.]
2. Introducing into the Philippines of said instruments
As in the case of a barangay captain who issues a or implements
Certificate of Good Moral Character to a bully , or a 3. Possession with intent to use (animus utendi) the
head of office who issues a Certificate of instruments or implements for counterfeiting or
Exemplary Conduct to an employee with several falsification made in or introduced into the
disciplinary penalties Philippines by another person.

 Constructive possession is also punished. Art

3. Private person who falsifies a certificate falling 165 and 176 RPC, also punish constructive
within the classes mentioned in the two preceding possession
subdivisions.

The name of the crime is Falsification of a Medical V. OTHER FALSITIES

Certificate or Certificate of Merit to distinguish it
from ordinary falsification Note: the subject of these falsities are not papers,
instruments or documents but : (1) official authority or
Example: the patient who altered the period of days functions; (2) rank, title, names, (3) uniforms and
of confinement insignias and (4) testimonies under oath. These are
also capable of being falsified or subjected to acts of
Article 175. Using False Certificates deception.
Section 1
Elements
Art. 177. Usurpation of Authority or official
1. The following issues a false certificate: functions
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Acts punished
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with one who claims to be a BIR agent and
1. Usurpation of Authority- the crime committed by begins going over the books of a businessman,
a person who knowingly and falsely represents or one who claims to be with the Department of
himself to be an officer agent, representative or Labor and starts inquiries as to the employment
any department or agency of the Philippine status of employees.
government or foreign country. :  There is such a crime as Seduction through
Usurpation of Official Functions.
Elements  The offender may himself be a public official
who assumes a position without color of law. As
1. Offender knowingly and falsely represents in the case of a number one councilor who took
himself; over the position of the mayor who was on leave
2. As an officer, agent or representative of any despite opinions that it be the vice mayor who
department or agency of the Philippine must be the acting mayor.
government or of any foreign government.  The usurpation must pertain to a department or
agency of the Philippine Government or any
 The representation must be active, i.e by words foreign government.
or acts and the accused need not actually  However, if the authority or function usurped
perform any function pertaining to the office pertains to a diplomatic, consular or other
misrepresented. What is punished is the act of accredited officers of a foreign government
false misrepresentation. There must be a (usurpation must be with intent to defraud such
positive, express and explicit representation and foreign government or the Gov‘t of the Phils),
not merely a failure to deny. Representation may the offender is also liable under R.A. 75. (fined
be shown by acts. He who does not object when not more than P5,000 or imprisoned for not
introduced as a ranking official is not guilty of more than 5 years or both)
usurpation.  If it can be proven that the usurpation of
authority of official functions by accused was
 This is different from the crime of Usurpation of done in good faith or under cloth of authority,
Powers under articles 239 to 241 which deals then the charge of usurpation will not apply. E.g.
with interference in the functions of one Estrada v. Desierto
department by another department
 This includes any government owned or Estrada v. Desierto, 12/9/04
controlled corporations Hefti was charged with Usurpation of Official
 Example: a private person greets tourists, gives Function for issuing a notice of distraint, a
them the key to the city, welcomes them, by function of the BIR Commissioner. While it is true
declaring that he is the city mayor that under Sec 206 of the NIRC as amended, the
Commissioner of the BIR and not any Officer of
2. Usurpation of Functions - the crime committed by the BIR was the one granted with the power to
any person who actually performs an act pertaining issue a notice of distraint, it bears to stress,
to a public official of the government or any however, that when respondent Hefti exercised
agency thereof accompanied by a pretense that he such function of the BIR Commissioner, she was
is such public official. then designated Officer-In-Charge of the BIR by
Pres. Arroyo, xxx. Suffice it to say that when
Elements respondent Hefti issued the notice of distraint,
she was clothed with authority to issue the same
1. Offender performs any act; in view of her appointment as the then Officer-
2. Pertaining to any person in authority or public In-Charge of the BIR. Hence, the charge for
officer of the Philippine government or any Usurpation of Official Function does not apply to
foreign government, or any agency thereof; said respondent
3. Under pretense of official position;
4. Without being lawfully entitled to do so.
Article 178. Using Fictitious Name and
 There must be a pretense or false assertion of Concealing True Name
being a public official. In the absence thereof,
there is no usurpation of functions. 1. Using Fictitious Name
 Thus one who enters a public school ands starts
teaching pupils, without claiming to be a teacher, Elements
is not liable. Same with one who asks questions
on witnesses about a crime without asserting he 1. Offender uses a name other than his real
is a police investigator. Or one who directs traffic (registered or baptismal) name;
might be performing a civic action. 2. He uses the fictitious name publicly;
 One who introduces himself to be an NBI agent 3. Purpose of use is to:
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and begins interrogating witnesses is liable. As a) conceal a crime,
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b) evade the execution of a judgment, or years and has been introducing herself to
c) cause damage to public interest. the public as his wife
 When may a person use a name other than his
 A fictitious name is any name which a person registered or baptismal name?
publicly applies to himself without authority of
law. 1. When allowed by the court in a petition for
 The purpose is material even if it is simply to a change of name
cause confusion among the public
 If the purpose is to cause damage to a private 2. When used in the field of entertainment,
person‘s interest, the crime may constitute literature or sports
estafa
 If the purpose is to obstruct justice the offense a). Pen names of authors.
is punished under P.D. 1829 b). Names in the entertainment industry:
 The use of Aliases is punished under C.A. 142 c). Sport‘s Monickers such as ―Flash‖:
Speedy‖‖ Bata‖, ―Sugar‖
Commonwealth Act No. 142 as amended
by RA 6085 (Regulating the Use of 3. When allowed by law such as when a
Aliases) woman marries or when a person is legally
adopted
Persons Liable
4. Under the Witness Protection Program in
1. any person who uses any name different order to protect the identity and safety of
from the one with which he was the witness
registered at birth in the office of the
local civil registry, or with which he was 2. Concealing True Name and other Personal
registered in the bureau of immigration Circumstances
upon entry; or such substitute name as
may have been authorized by a competent Elements
court.
1. Offender conceals his true name and other
Exception: Pseudonym solely for personal circumstances;
literary, cinema, television, radio, or other 2. Purpose is only to conceal his identity
entertainment and in athletic events
where the use of pseudonym is a normally  Such as in order to avoid giving support or to
accepted practice. avoid debtors .

2. any person who having been baptized with

a name different from what was Use of Fictitious Concealing true
registered, or who had obtained judicial Name name
authority for use of an alias, or who uses a Element of publicity Publicity not
pseudonym, represents himself in any must be present necessary
public or private document w/o Purpose is to Purpose is only to
stating or affixing his real or original conceal a crime, to conceal his identity
name or aliases or pseudonym he is evade the execution
authorized to use. of a judgment or to
cause damage to
 A judicial authority must first be secured public interest
by a person who desires to use an alias
just like those legally provided to obtain
judicial authority for a change of name. Article 179. Illegal Use of Uniforms or Insignia
 The petition for an alias shall set forth:
person‘s baptisma and family name and Elements
the name recorded in the civil registry, if
different, his immigrant‘s name, if alien, 1. Offender makes use of insignia, uniforms or
and his psuedonm, if he has such names dress;
other than the original; and the reasons
2. The insignia, uniforms or dress pertains to an
for the use of the desired alias.
office not held by such person or a class of
 However, a common-law wife does not
persons of which he is not a member;
incur criminal liability under the Anti-Alias
3. Said insignia, uniform or dress is used publicly
Law if she uses the surname of the man
and improperly.
she has been living w/ for the past 20
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Examples: unlawful use of ecclesiastical habit of a been acquitted. The offense committed must be a
religious order; school uniforms; uniform of the boy‘s felony
scout; the regalia of the Knights of Columbus  The witness who gave false testimony is liable
even if the court did not consider his
 If the uniform, insignia, badge, emblem or rank, testimony.
medal, patch or identification card pertains to  If the accused violated a special law, the false
members of the military what applies is R.A. 493 testimony is punished under Art 183.
(except if used in playhouse or theater or in  Penalty depends upon sentence imposed on
moving picture films). If it pertains to the uniform, the defendant except in the case of a judgment
regalia or decoration of a foreign state, (use with of acquittal. Since Article 180 does not prescribe
intent to deceive or mislead) it is punished under the penalty where the defendant in a criminal case
R.A. 75. is sentenced to a light penalty, false testimony
 The use must be malicious i.e. to give the in this instance cannot be punished
impression that the accused is a member of the considering that a penal must be strictly construed.
office or class and thereby enjoy the prestige and  Prescriptive period of the offense shall run from
honor of that office or class. the time of finality of the decision in the criminal
 Wearing the uniform of an imaginary office is not case.
punishable.  Perjury requires malice and cannot be willful where
 So also, an exact imitation of a uniform or dress is the oath is according to belief or conviction as to
unnecessary; a colorable resemblance calculated to its truth ( Villanueva vs. Secretary of Justice 495
deceive the common run of people is sufficient. SCRA 475)
 The term ―improperly‖ means that the offender has
no right to use the uniform or insignia. Article 181. False Testimony Favorable to the
Defendant
Section 2
False Testimony Elements

False Testimony – committed by a person who, 1. A person gives false testimony;

being under oath and required to testify as to the truth 2. In favor of the defendant;
of a certain matter at a hearing before a competent 3. In a criminal case.
authority, shall deny the truth or say something  False testimony by negative statement is still
contrary to it. in favor of the defendant.

Three forms of false testimony  False testimony in favor of defendant need not
directly influence the decision of acquittal nor
1. False testimony in criminal cases under Article 180 benefit the defendant (intent to favor
and 181; defendant sufficient)
 A statement of mere opinion is not punishable.
2. False testimony in civil case under Article 182;  Conviction or acquittal is not necessary (final
judgment is not necessary), but gravity of
3. False testimony in other cases under Article 183. crime in principal case should be shown.
 A defendant who voluntarily goes up on the
Article 180. False Testimony Against A witness stand and falsely imputes to another
Defendant person the commission of the offense is liable
under this article. If he merely denies the
Elements commission of the offense, he is not liable.
 Rectification made spontaneously after
1. There is a criminal proceeding; realizing mistake is not false testimony (not
2. Offender testifies falsely under oath against liable if there is no evidence that the accused
the defendant therein; acted with malice or criminal intent to testify
3. Offender who gives false testimony knows that it falsely)
is false.  The penalty in this article is less than that
4. Defendant against whom the false testimony is which is provided in the preceding article
given is either acquitted or convicted in a final because there is no danger to life or liberty of
judgment. the defendant.
 The prescriptive perios commences from the
 Violation of this article requires criminal intent. time of giving false testimony.
Hence, it cannot be committed through negligence.  The persons liable are usually the witnesses
 The offender need not impute guilt upon the for the accused. NOT the accused himself
accused to be liable. since it is his right to put a defense in his
 The defendant/accused must at least be sentenced favor. BUT if he imputes a crime to a 3rd
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person, then there is liability for false 4. The sworn statement or affidavit containing the
testimony. falsity is required by law, that is, it is made for a
legal purpose.
Article 182. False Testimony in Civil Cases
 Subornation of perjury is committed If a
Elements person procures another to swear falsely
and the witness suborned does testify under
1. Testimony given in a civil case; circumstances rendering him guilty of perjury.
2. Testimony relates to the issues presented in said It is not expressly penalized under RPC. This is
case; now treated as plain perjury under 183 in rel
3. Testimony is false; to Art 17, the one inducing another as
4. Offender knows that testimony is false; principal by inducement and the one induced
5. Testimony is malicious and given with an intent as principal by direct participation.
to affect the issues presented in said case.  Solemn affirmation refers to non-judicial
proceedings and affidavits.
 This article is not applicable when testimony is
given in a special proceeding. In this case, the  OATH – any form of attestation by which a
crime is perjury. person signifies that he is bound in conscience
 Basis of penalty: amount involved in the civil to perform an act faithfully and truthfully.
case, whether it exceeds 5K or not.
 AFFIDAVIT – a sworn statement in writing, a
Article 183. False Testimony in Other Cases and declaration in writing, made upon oath before
Perjury in Solemn Affirmation an authorized magistrate or officer.
Acts punished
 A false affidavit to a criminal complaint may
1. By falsely testifying under oath; give rise to perjury.
2. By making a false affidavit.  Good faith or lack of malice is a valid defense.
 There is no perjury through negligence or
Elements of perjury imprudence since the assertion of falsehood
must be willful and deliberate.
1. Offender makes a statement under oath or  Even if there is no law requiring the statement
executes an affidavit upon a material matter to be made under oath, as long as it is made
(element of materiality); for a legal purpose, it is sufficient
 Perjury is an offense which covers false oaths
 Material Matter – is the main fact which other than those taken in the course of
is the subject of the inquiry. judicial proceedings
 False testimony before the justice of the peace
 A matter is material when it is directed during a preliminary investigation may give
to prove a fact in issue. rise to the crime of perjury, not false
testimony in judicial proceedings. The latter
 a matter is relevant when it tends in any crime contemplates an actual trial where a
reasonable degree to establish the judgment of conviction or acquittal is rendered
probability or improbability of a fact in  The venue for perjury based on false affidavits
issue. is where the affidavits were used.
 a matter is pertinent when it concerns
collateral matters which make more or Article 184. Offering False Testimony in Evidence
less probable the proposition at issue.
Elements
2. The statement or affidavit is made before a
competent officer, authorized to receive and 1. Offender offers in evidence a false witness
administer oaths; or testimony;
2 He knows that the witness or the testimony
A ―competent person authorized to administer was false;
an oath‖ means a person who has a right to 3. The offer is made in any judicial or official
inquire into the questions presented to him proceeding.
upon matters under his jurisdiction
 This article applies when the offender, w/o
3. Offender makes a willful and deliberate inducing another but knowing him to be a false
assertion of a falsehood in the statement or witness, presented him and the latter testified
affidavit; falsely in a judicial or official proceeding
 The felony is consummated the moment a false
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proceeding. Looking for a false witness is not  When a thing is sold it is either through a direct
punished by law as that is not offering a false sale to a particular individual or through public
witness bidding. Public bidding is preferred in order to
 The false witness need not be convicted of false obtain the best and most advantageous price. This
testimony. A mere offer to present him is sufficient. is especially true with respect to judgment debtors
 Sir Sagsago: If one pays a witness of the other in case of judgment sales. The best and highest
party to testify falsely, he committed what the price is achieved by leaving it to any interested
American Law considers as Subornation Of Perjury. buyer to offer a better price over those offered by
There is no corresponding offense under the RPC. others. Any a scheme so that the article will be
The nearest crime would be obstruction of justice. sold at a low price, is called machination.
 In the second mode, the threat, coercion or force
Chapter 3 is absorbed but the bribery is a separate offense.
FRAUDS  Examples:

Article 185. Machinations in Public Auctions 1. X knows Y is interested to buy a piano worth
P250,000.00 being sold at an auction. X
Concept approaches Y and says he can bid as high as
P250,000.0 but will not bid if Y just give him
The crime committed by any person who intends to P25,000.00 so that Y has no competitor.
cause the reduction of the price of a thing auctioned
and shall either (1) solicit any gift or a promise as a 2. Y wants to buy the piano and knows that X is
consideration for refraining from taking part in any ready to bid against him. He tells X not to bid and
public auction, and (2) attempt to cause bidders to stay accept P25,000.00 instead.
away from an auction by threats, gifts, promises or any
other artifice.
 The threat need not be effective nor the offer or
Acts punished gift accepted for the crime to arise
 Execution sales should be opened to free and full
1. Soliciting any gift or promise as a consideration for competition in order to secure the maximum
refraining from taking part in any public auction; benefit for the debtors

Elements
Article 186. Monopolies and Combinations in
1. There is a public auction; Restraint of Trade
2. Offender solicits any gift or a promise from
any of the bidders; Introduction
3. Such gift or promise is the consideration for
his refraining from taking part in that In an open market economy, the price of goods is
public auction; supposed to be determined by the relationship of
4. Offender has the intent to cause the supply and demand. Hence, any act, scheme or
reduction of the price of the thing strategy, by which the price of goods and commodities
auctioned. are intentionally affected, are punished. This includes
practices such as resorting to artificial shortage or
Consummated by mere solicitation. hoarding of goods, spreading false rumors.

2. Attempting to cause bidders to stay away from an Likewise there should be free competition in the
auction by threats, gifts, promises or any other market. The law thus punishes any scheme of a person
artifice. or persons to monopolize goods and commodities,
including all acts to kill competitors, such as under
Elements pricing of goods.

1. There is a public auction; However, Article 186 is ineffective in the face of

2. Offender attempts to cause the bidders to conglomerates, mergers and combinations of big
stay away from that public auction; companies; and the diversification of the products of
3. It is done by threats, gifts, promises or big companies; mass production of goods by
any other artifice; companies so that they can afford to sell at prices
4. Offender has the intent to cause the lower that those offered by retailers.
reduction of the price of the thing
auctioned. Acts punished

Consummated by mere attempt. 1. Combination or conspiracy to prevent free

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spreading false rumors or making use of any
Elements other artifice to restrain free competition in
the market
1. Entering into any contract or agreement or  Manufacturer, producer, or processor or
taking part in any conspiracy or combination in importer combining, conspiring or agreeing
the form of a trust or otherwise; with any person to make transactions
prejudicial to lawful commerce or to increase
2. In restraint of trade or commerce or to the market price of the merchandise
prevent by artificial means free competition in  Also liable as principals
the market. a. corporation/ association
b. agent/representative
2. Monopoly to restrain free competition in the c. director/manager who willingly permitted
market; or failed to prevent commission of above
offense
Elements  When offense is committed by a corporation or
association, the president and the directors or
1. By monopolizing any merchandise or object of managers are liable
trade or commerce, or by combining with any  Crime is aggravated if the items involved are:
other person or persons to monopolize said a. food substance
merchandise or object; b. motor fuel or lubricants
c. goods of prime necessity
2. In order to alter the prices thereof by  RA 3720 – created Food and Drug Administration
spreading false rumors or making use of any  RA 6361 – created Price Control Council
other artifice;  RA 1180 – an Act to regulate the Retail Business
 A MONOPOLY is a privilege or peculiar advantage
3. To restrain free competition in the market vested in one or more persons or companies,
consisting in the exclusive right or power to carry
3. Manufacturer, producer, or processor or importer on a particular business or trade, manufacture a
combining, conspiring or agreeing with any person particular article, or control the sale or the whole
to make transactions prejudicial to lawful supply of a particular commodity. It is a form of
commerce or to increase the market price of market structure in which one or only a few firms
merchandise. dominate the total sales of a product or service.
On the other hand, COMBINATION IN
Elements RESTRAINT OF TRADE is an agreement or
understanding between two or more persons, in
1. Manufacturer, producer, processor or importer the form of a contract, trust, pool, holding
of any merchandise or object of commerce; company or other form of association, for the
purpose of unduly restricting competition,
2. Combines, conspires or agrees with any monopolizing trade and commerce in a certain
person; commodity, controlling its production, distribution
and price, or otherwise interfering with freedom of
3. Purpose is to make transactions prejudicial to trade without statutory authority. Combination in
lawful commerce or to increase the market restraint of trade refers to the means while
price of any merchandise or object of monopoly refers to the end
commerce manufactured, produced,
processed, assembled or imported into the
Philippines. Frauds in Commerce and Industry

 Combination to prevent free competition in the A. Crimes involving Metal Products: Articles made of
market – by entering into a contract or precious metals such as gold, silver, are supposed
agreement or taking part in any conspiracy or to bear marks, brands or stamps, which must
combination in the form of trust or otherwise, in indicate the actual finesse or quality of said metal
restraint of trade or commerce or to prevent products i.e carat, so as not to deceive the public.
by artificial means free competition in the Hence Article 187 punishes the act of importing,
market; it is enough that initial steps are taken. It selling or disposing off these articles knowing that
is not necessary that there be actual their actual finesse is not indicated in their brand,
restraint of trade mark or stamps.
 Monopoly to restrain free competition in the
market – by monopolizing any merchandise or B. As to deceptions involving trademarks, trade names
object of trade or commerce, or by combining with and service marks, the acts punished relative
any person/s to monopolize said merchandise or thereto, such as: Infringement, Unfair competition,
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object in order to alter the prices thereof by Fraudulent Registration, False Designation of
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Origin; are punished by the Intellectual Property  Trademarks: to indicate origin of ownership
Code (RA 8293) of goods to which it is affixed
 In trademarks, it is not necessary that the
Article 187. Importation and Disposition of goods of the prior user and the later user of the
Falsely Marked Articles or Merchandise Made of trademark are of the same categories. The meat of
Gold, Silver, or Other Precious Metals of Their the matter is the likelihood of confusion, mistake
Alloys or deception upon purchasers of the goods of the
junior user of the mark and goods manufactured
Elements by the previous user
 The tradename or trademark must be
1. Offender imports, sells or disposes articles or registered. Trademark must not be merely
merchandise made of gold, silver, or other descriptive or generic
precious metals or their alloys;  The exclusive right to an originally valid
2. The stamps, brands, or marks of those articles or trademark or tradename is lost, if for any reason it
merchandise fail to indicate the actual loses its distinctiveness or has become ‗publici
fineness or quality of said metals or alloys; juris‘
3. Offender knows that the stamps, brands, or
marks fail to indicate the actual fineness or quality
of the metals or alloys. Article 189. Unfair Competition, Fraudulent
Registration of Trade Name, Trademark, or
Notes Service Mark, Fraudulent Designation of Origin,
and False Description (repealed)
 When evidence show the article to be
imported, selling the misbranded articles is not UNFAIR COMPETITION: consists in employing
necessary deception or any other means contrary to good faith by
 The manufacturer who alters the quality or which any person shall pass off the goods
fineness is liable for estafa under Art 315, 2(b) manufactured by him or in which he deals, or his
business. Or services for those of the one having
established goodwill, or committing any acts calculated
Art 188 and 189 which are inconsistent with RA to produce such result.
8293 are repealed
Unfair Competition Infringement of
Article 188. Substituting and Altering trademark or
Trademarks, Trade names, or Service Marks tradename
(repealed) Broader, more Limited range
inclusive
 TRADE-NAME or TRADE-MARK – is a Identified in the mind Identified a peculiar
word/s, name, title, symbol, emblem, sign or of the public whether symbol or mark with his
device, or any combination thereof uses as an or not a mark or goods and thereby has
advertisement, sign, label, poster, or otherwise, for tradename is acquired a property right
the purpose of enabling the public to distinguish employed in such symbol or mark
the business of the person who owns and uses Gives his goods the Sells goods on which
said trade-name or trade-mark general appearance trademark is affixed
of the goods of
 SERVICE MARK – is a mark used in the sale another
or advertising of services to identify the services of
one person and distinguish them from the services Republic Act No. 8293 (An Act Prescribing the
of others and includes w/o limitation the marks, Intellectual Property Code and Establishing the
names, symbols, titles, designations, slogans, Intellectual Property Office, Providing for Its
character names, and distinctive features or radio Power and Functions, and for Other Purposes)
or other advertising
 The tradename, trademark or service mark Section 155. Remedies; Infringement. –
need not be identical; a colorable imitation is Any person who shall, without the consent of the
sufficient. There must not be differences which are owner of the registered mark:
glaring and striking to the eye
 ‗Mark‟ means any visible sign capable of 155.1. Use in commerce any reproduction,
distinguishing the goods or services of an counterfeit, copy, or colorable imitation of a registered
enterprise and shall include a stamped or marked mark or the same container or a dominant feature
container thereof in connection with the sale, offering for sale,
 Tradename: identify or distinguish an distribution, advertising of any goods or services
enterprise; not necessarily attached or affixed to including other preparatory steps necessary to carry 17
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connection with which such use is likely to course induce the false belief that such person is offering the
confusion, or to cause mistake, or to deceive; or services of another who ahs identified such services in
the mind of the public; or
155.2. Reproduce, counterfeit, copy or
colorably imitate a registered mark or a dominant (c) Any person who shall make any false
feature thereof and apply such reproduction, statement in the course of trade or who shall commit
counterfeit, copy or colorable imitation to labels, signs, any other act contrary to good faith of a nature
prints, packages, wrappers, receptacles or calculated to discredit the goods, business or services
advertisement intended to be used in commerce upon of another.
or in connection with the sale, offering for sale,
distribution, or advertising of goods or services on or in 168.4. The remedies provided by Section 156,
connection with which such use is likely to cause 157 and 161 shall apply mutatis mutandis.
confusion, or to cause mistake, or to deceive shall be
liable in a civil action for infringement by the registrant Section 169. False Designation or Origin;
for the remedies hereinafter set forth: Provided, that False Description or Representation.
the infringement takes place at the moment any of the
acts stated in Subsection 155.1 or this subsection are 169.1. Any person who, on or in connection
committed regardless of whether there is actual sale of with any goods or services, or any container for goods,
goods or services using the infringing material. uses in commerce any word, term, name, symbol, or
device, or any combination thereof, or any false
Section 168. Unfair Competition, Rights, designation of origin, false or misleading description of
Regulation and Remedies. fact, or false or misleading representation of fact,
which:
168.1. Any person who has identified in the
mind of the public the goods he manufactures or deals (a) Is likely to cause confusion, or to
in, his business or services from those of others, cause mistake, or to deceive as to the affiliation,
whether or not a registered mark is employed, has a connection, or association of such person with another
property right in the goodwill of the said goods, person, or as to the origin, sponsorship, or approval of
business or service so identified, which will be his or her goods, services, or commercial activities by
protected in the same manner as other property rights. another person; or

168.2. Any person who shall employ (b) In commercial advertising or

deception or any other means contrary to good faith by promotion, misrepresents the nature, characteristics,
which he shall pass off the goods manufactured by him qualities, or geographic origin of his or her or another
or in which he deals, or his business, or services for person's goods, services or commercial activities, shall
those of the one having established such goodwill, or be liable to a civil action for damages and injunction
who shall commit any acts calculated to produce said provided in Section 156 and 157 of this Act by any
result, shall be guilty of unfair competition, and shall be person who believes that he or she is or likely to be
subject to an action therefor. damaged by such act.

168.3. In particular, and without in any way Section 170. Penalties. – Independent of the
limiting the scope of protection against unfair civil and administrative sanctions imposed by law, a
competition, the following shall be deemed guilty of criminal penalty of imprisonment from two (2) years to
unfair competition: five (5) years and a fine ranging from Fifty thousand
pesos (P 50,000.00) to Two hundred thousand pesos
(a) Any person, who is selling his goods (P 200,000.00), shall be imposed on any person who is
and gives them the general appearance of goods of found guilty of committing any of the acts mentioned in
another manufacturer or dealer, either as to the goods Section 155, Section 168 and Subsection 169.1.
themselves or in the wrapping of the packages in which RA 455- LAW ON SMUGGLING
they are contained, or the devices or words thereon,
on in any other feature or their appearance, which Acts Punishable:
would be likely to influence purchasers to believe that 1. That the merchandise must have been fraudulently
the goods offered are those of a manufacturer or or knowingly imported contrary to law
dealer, other than the actual manufacturer or dealer, or 2. That the defendant if he is not the importer
who otherwise clothes the goods with such appearance himself, must have received, concealed, bought,
as shall deceive the public and defraud another of his sold or in any manner facilitated the
legitimate trade, or any subsequent vendor of such transportation, concealment, or sale of the
goods or any agent of any vendor engaged in selling merchandise and that he must be shown to have
such goods with a like purpose; or knowledge that the merchandise had been illegally
imported.
(b) Any person who by any artifice, or
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device, or who employs any other means calculated to Title V
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Crimes Relative to Opium and Other Prohibited Dangerous Drugs
Drugs
a. Importation of dangerous drugs (even for
(The provisions of Article 190 to 194 have been floral, decorative and culinary purposes)
repealed. First there was R.A. 6425 known as the and/or controlled precursors and essential
Dangerous Drugs Law of l972 as amended by R.A. chemicals
7659. This law has in turn been replaced by R.A. 9165
otherwise known as the Comprehensive Dangerous Qualifying circumstances
Drugs Act of 2002. Some salient provisions are (i) if the importation was through the use of a
summarized hereunder). diplomatic passport, diplomatic facilities or
any other means involving the offender‘s
1. Campaign against Drugs and Protection of State official status
2. Balance - Medicinal purpose (ii) organizes, manages or acts as a financier
3. Rehabilitation
 The protector or coddler is also liable
Declaration of Policy (Sec. 2)  Financier - a person who pays for, raises,
1. It is the policy of the State to safeguard the or supplies money for, or underwrites any
integrity of its territory and the well-being of its of the illegal activities involving dangerous
citizenry particularly the youth, from the harmful substances.
effects of dangerous drugs on their physical and  Protector or Coddler - a person who
mental well-being and to defend the same against knowingly and willfully consents to the
acts or omissions detrimental to their development unlawful acts provided for in the law and
and preservation. (Campaign against Drugs and who uses his influence, power or position
Protection of State – Sir Sagsago) in shielding, harboring, screening or
2. To provide effective mechanisms or measures to facilitating the escape of any person
re-integrate into society individuals who have fallen whom he knows or has grounds to believe
victims to drug abuse or dangerous drug has violated the provisions of this Act in
dependence through sustainable programs of order to prevent the arrest, prosecution
treatment and rehabilitation. (Balance - Medicinal and conviction of the violator.
purpose; Rehabilitation – Sir Sagsago)
b. Sale, administration, trading,
Change in the classification of dangerous dispensation, delivery, distribution and
substances. transportation of dangerous drugs.

The old classification between Prohibited and Note: The quantity of the substance involved is
Regulated Drugs have been replaced by classifying immaterial.
dangerous substances into (i) Dangerous Drugs
(DD) and (ii) Controlled Precursors and Essential Qualifying circumstances
Chemicals (CP/EC) (i) within 100 meters from a school
(ii) if minors/ mentally incapacitated
DD and CP/EC are not defined but refer to those individuals are used as runners, couriers
substances which are enumerated in the list of and messengers of drug pushers;
schedules prepared and adopted by International (iii) if the victim of the offense is a minor, or
Conventions. should a prohibited/ regulated drug
involved in any offense under this section
Controlled Precursors and Essential Chemicals – be the proximate cause of the death
include those listed in Tables I and II of the 1988 UN of a victim thereof
Convention Against Illicit Traffic in Narcotic Drugs and (iv) organizes, manages or acts as a financier
Psychotropic Substances.
 The protector or coddler is also liable
Dangerous Drugs – include those listed in the  The consummation of the crime of illegal
Schedules annexed to the 1961 Single Convention on sale of drugs may be sufficiently
Narcotic Drugs, as amended by the 1972 Protocol, and established even in the absence of money.
in the Schedules annexed to the 1971 Single The payment could precede or follow
Convention on Psychotropic Substances. delivery of the drug sold. IN abuy-bust
operation, what is important is the fact
Factors Affecting Criminal Liability: that the poseur-buyer received the shabu
from the offender and the same was
1. The kind of dangerous substance involved: the presented as evidence in court. (Pp vs
penalty is higher if what are involved are DD. Yang, Feb 16, 2004) Without evidence that
the accused handed over the shabu to the
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2. The Act performed by the accused such as: buyer, he may not be convicted. However,
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where the accused intended to sell shabu Qualifying circumstance: organizes,
and commenced by overt acts the manages or acts as financier
commission of the intended crime by
showing the substance to the buyer, he Prima facie proof of manufacture: presence
will be guilty of the crime attempted sale of controlled precursor and essential chemical
of shabu. (Pp vs Adam, Oct 13, 2003) or lab equipment in the clandestine lab

c. Maintenance of a den, dive or resort where CLANDESTINE LABORATORY - Any facility

any controlled precursor and essential used for illegal manufacture of any DD.
chemical is sold or used.
f. Manufacture or delivery of equipment,
Qualifying circumstances instrument, apparatus and other
(i) where a DD is administered, delivered or paraphernalia for DD and/or CP/EC
sold to a minor who is allowed to use the
same in such place; or Acts punishable
(ii) should a prohibited drug be the (i) deliver
proximate cause of the death of the (ii) possess with intent to deliver
person using the same in such den, dive (iii) manufacture with intent to deliver the
or resort paraphernalia, knowing, or under
(iii) organizes, manages or acts as a financier circumstances where one reasonably
should know
 The protector or coddler is also liable
 If place owned by third person, the same Qualifying circumstance: use of a minor
shall be confiscated and escheated in or a mentally incapacitated individual to
favor of gov‘t IF (a) Complaint specifically deliver such equipment, instrument,
allege that such place used intentionally apparatus or other paraphernalia
for furtherance of crime (b) prosecution
proves intent on part of owner (c) owner g. Possession of a DD regardless of degree of
included as accused in criminal complaint purity
 OPIUM DIVE or RESORT: place where
dangerous drug and/or controlled The possession of different substances gives
precursor and essential chemical is rise to separate charges of possession even if
administered, delivered, stored for illegal the drugs were seized in the same place and
purposes, distributed, sold or used in any occasion. (PP. vs. Empleo, 503 SCRA 464; PP.
form (to be habitual – prior conviction, vs. Tira 430 SCRA 134) The kinds of drugs
reputation of place) have different respective amounts for the
d. Being an employee or visitor of a den, dive or graduation of penalties. Thus one may be
resort who are aware of the nature of such charged for possession of Marijuana separate
place from possession of shabu (methamphetamine
hydrocloride)
 For the employee who is aware of nature
of place and any person who knowingly  One may be charged for sale of shabu and
visits such place. a separate charge of possession of
 A person who visited another who was another gram of shabu which was not the
smoking opium shall not be liable if the subject of the sale
place is not an opium dive or resort.  One charged for sale or delivery may be
convicted of possession if the sale or
e. Manufacture of DD possession was not proven
 Penalties are graduated to the amount of
Aggravating circumstance: Clandestine lab drugs, i.e. In this charge of possession,
is undertaken under the ff circumstances the quantity of the substance determines
(i) any phase conducted in presence or with the penalty to be imposed
help of minors  Possession: unauthorized, either actual
(ii) established/ undertaken w/in 100m of or constructive, irrespective of quantity,
residential, business, church or school with intent to possess (full knowledge that
premises was possessed was any of prohibited or
(iii) lab secured/ protected by booby traps regulated drug)
(iv) concealed with legitimate business  ―Actual possession is when the drug is in
operations the immediate physical possession or
(v) employment of practitioner, chemical eng‘r, control of the accused… constructive
public official or foreigner possession exists when the drug is under
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the dominion or control of the accused or
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when he has a right to exercise dominion
or control over the place where it is found‖ k. Cultivation or culture of plants classified as
( PP vs. Tira,430 SCRA 134) DD or sources thereof.

Thus a person may be convicted for  This need not be in a plantation. One
possession of drugs found inside his plant of marijuana in a flower pot is
bedroom even if at the time of the seizure, included.
he was physically absent there from ( PP  The land/portions thereof and/or
vs. Torres, Sept. 12, 2006) greenhouses in which any of the said
plants is cultivated or cultured shall be
 What is punished is present possession, confiscated and escheated to the State,
not past possession unless the owner thereof prove that he
 It is not necessary to allege in information did not know of such cultivation or
that the accused is not authorized to culture despite the exercise of due
possess opium diligence on his part.

Elements of possession of opium (RA Qualifying circumstance:

6425) (i) the land is part of the public domain
(i) occupancy or taking (ii) organizes, manages or acts as financier
(ii) intent to possess
 Protector/Coddler is also liable.
h. Possession of drug paraphernalia during
parties, social gatherings or meetings or l. Offenses by physicians and drug stores:
in the proximity of at least two persons
(i) failure to maintain and keep records of
The maximum penalty shall be imposed transactions of any DD or CP/EC
regardless of the quantity and purity of  Persons liable: practitioner,
dangerous drugs. manufacturer, wholesaler, importer,
distributor, dealer, or retailer
i. Possession of equipment, instrument,  The additional penalty of revocation of
apparatus and other paraphernalia fit for his license to practice his profession in
introducing DD into the body case of a practitioner, or of his or its
business license in case of
 Possession of such equipment - prima manufacturer, seller, importer,
facie evidence that possessor has used a distributor or dealer, shall be imposed
dangerous drug and shall be presumed to
have violated Sec.15, use of DD. (ii) Unnecessary prescription of DD
 The possession of PARAPHERNALIA is
absorbed by USE of DD.  Person liable: practitioner who shall
prescribe any DD for any person
 Qualifying circumstance: party, social whose physical/ psychological
gathering, or in the proximate company of condition does not require the use
at least 2 persons. thereof in the dosage therein

j. Use of DD provided the accused is not charged (iii) Unlawful prescription of DD

for possession
Controlled Precursors and Essential
 Must be found positive after a Chemicals
confirmatory test 1. Importation
 1st conviction – minimum of 6 mos. of  The maximum penalty shall be imposed:
rehabilitation a. upon any person who, without being
 2nd conviction – imprisonment and fine authorized, shall import or bring into
 Where the accused is also found to be in the Philippines controlled precursors
possession of DD, this Section shall not and essential chemicals through the
apply. Sec. 11, possession of DD, shall use of diplomatic passport, diplomatic
apply. Hence, USE is subsumed by facilities or any other means involving
POSSESSION. his/her official status intended to
facilitate the unlawful entry of the
Ex. If the offender is caught with same. In addition, the diplomatic
possession of paraphernalia, possession of passport shall be confiscated and
DD, and use of DD, the offense is cancelled
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POSSESSION OF DD
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b. organizes, manages or acts as a
financier 8. Failure to Maintain and Keep Original Records
of Transactions
 The protector or coddler is also  An additional penalty shall be imposed
liable through the revocation of the license to
practice his /her profession, in case of a
2. Sale, Trading, Administration, Dispensation, practitioner, or of the business, in case of
Delivery, Distribution and Transportation a manufacturer, seller, importer, etc.
 The maximum penalty shall be imposed:
a) If the sale, trading, etc. transpires  The presence of any controlled precursor and
within one hundred (100) meters from essential chemical or laboratory equipment in
the school. a clandestine laboratory is a prima facie proof
b) For drug pushers who use minors or of manufacture of dangerous drugs.
mentally incapacitated individuals as
runners, couriers and messengers, or  Every penalty imposed shall carry with it the
in any other capacity directly confiscation and forfeiture, in favor of the
connected to the trade. government, of all the proceeds and properties
c) If the victim of the offense is a minor derived from the unlawful act, including, but
or a mentally incapacitated individual, not limited to
or should a dangerous drug involved a) money and other assets obtained thereby,
in any offense herein provided be the and
proximate cause of death of a victim b) the instruments or tools with which the
thereof. particular unlawful act was committed,
d) organizes, manages or acts as a unless they are the property of a third
financier person not liable for the unlawful act, but
those which are not of lawful commerce
The protector or coddler is also shall be ordered destroyed. (Sec. 20)
liable
 Any person charged under any provision of
3. Maintenance of a Den, Dive or Resort this Act regardless of the imposable penalty
 If such den, dive or resort is owned by a shall not be allowed to avail of the provisions
third person, the same shall be of plea-bargaining. (Sec. 23)
confiscated and escheated in favor of the
government.  Any person convicted for drug trafficking or
 The protector or coddler is also liable pushing under this Act, regardless of the
penalty imposed by the Court, cannot avail of
4. Employees and Visitors of a Den, Dive or the privilege granted by the Probation Law (PD
Resort No. 968, as amended). (Sec. 24)

5. Manufacture of Controlled Precursors and  Notwithstanding the provisions of the law to

Essential Chemicals the contrary, a positive finding for the use of
dangerous drugs shall be a qualifying
6. Illegal Chemical Diversion of Controlled aggravating circumstance in the commission of
Precursors and Essential Chemicals a crime by an offender, and the applicable
penalty provided for in the RPC shall be
CHEMICAL DIVERSION - sale, distribution, applicable. (Sec. 25)
transport of legitimately imported, in-transit,
manufactured or procured CP/EC to any 3. The Quantity of the dangerous substance if the act
person or entity engaged in manufacture of of that of possession
dangerous drug and concealment of such
transaction through fraud, destruction of 4. The presence of special aggravating
documents, fraudulent use of permits, circumstances.
misdeclaration, use of front companies or mail
fraud.  These vary according to the act of the
accused. Thus in the act of importing: that the
7. Manufacture or Delivery of Equipment, accused is a diplomat or a financier. In cases
Instrument, Apparatus and Other of sale, delivery, administration or
Paraphernalia transporting: that it took place within a radius
 The maximum penalty shall be imposed of 100 meters form a school; the use of a
upon any person, who uses a minor or a minor or a mentally incapacitated person; or
mentally incapacitated individual to deliver that the victim is a minor or a mentally
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such equipment, instrument, etc. incapacitate person; or that the DD is the
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proximate cause of the death; or that the Revised Penal Code consisting of a ― POSITIVE
suspect is a financier FINDING FOR THE USE OF DANGEROUS
 The application of these circumstances is DRUGS‖. This must be corroborated by a
doubtful considering that the penalties confirmatory drug test
provided for by the Act do not follow the
nomenclature and scheme of the penalties  Under the old law what constituted an
under the Revised Penal Code and they do not aggravating circumstance was that the
have periods accused committed a crime‖ while under the
influence of drug‖. Under the new law, the
Attempt or Conspiracy to commit the following accused need not be high on drugs during the
unlawful acts shall be penalized by the same time of committing of a crime so long as the
penalty prescribed for the commission of the test showed he is a user of drugs
same under this Act:  The application of the new qualifying
aggravating circumstance poses a problem to
(i) importation of DD and/or CP/EC felonies which do not have qualified forms
(ii) sale, trading, administration, dispensation, such as parricide, threats, physical injuries,
delivery, distribution and transportation of robbery. ( In such a case it is suggested the
DD and/or CP/EC circumstance must be appreciated as a special
(iii) maintenance of a den, dive or resort for DD aggravating to give meaning to the intent of
(iv) manufacture of DD and/or CP/EC the congress to punish more severely the
(v) cultivation or culture of plants which are sources users who commits crimes)
of DD.
2. Defining and Penalizing the offense of “Planting of
 Note that the law does not include possession as Evidence” i..e planting of any dangerous
being the subject of an attempt or conspiracy (Is substances in the person, house, effects, or in the
this omission intentional or by oversight?) immediate vicinity of an innocent individual for the
 The penalty for such attempt and conspiracy is the purpose of implicating, incriminating or imputing
same penalty prescribed for the commission. the commission of any violation of this Act‖
Thus, where the offense of sale was not
consummated, the accused should not be  If what is planted is not a dangerous substances
prosecuted under mere possession, but under Sec. the crime is that of Incriminating an Innocent
26 (Justice Peralta) Person/Incriminatory Machination under the
 The maximum penalties of the unlawful acts shall Revised Penal Code.
be imposed, in addition to absolute perpetual  The penalty is death
disqualification from any public office, if those
found guilty of such unlawful acts are government 3. Penalizing any public officer who misappropriates,
officials and employees. (Sec. 28) misapplies or fails to account for the DD/CP/EC,
 Any person who is found guilty of ―planting‖ any paraphernalia, proceeds or properties obtained
dangerous drug and/or controlled precursor and form unlawful acts. ( Note: Consider this as
essential chemical, regardless of quantity and Malversation or Infidelity of Dangerous Drugs,
purity, shall suffer the penalty of death. (Sec. 29) Drug paraphernalia and Drug Proceeds)
 In case any violation of this Act is committed by a
partnership, corporation, association or any 4. Penalizes the following acts of law enforcers:
juridical entity, the partner, president, director, a). Failure or refusal after due notice, to appear as
manager, trustee, estate or administrator, or officer witnesses for the prosecution
who consents to or knowingly tolerates such b). Failure of the immediate superior to exert
violation shall be held criminally liable as a co- reasonable efforts to present the witness in
principal. (Sec. 30) court
 In addition to the penalties prescribed in the c). Failure of the immediate superior to notify the
unlawful act committed, any alien who violates court of the transfer or re-assignment of a
such provisions of this Act shall, after service of witness during the pendency of the case to
sentence, be deported immediately without further another territorial jurisdiction. Note that the
proceedings, unless death is the penalty. (Sec. 31) transfer of re-assignment to the witnesses to
another territorial jurisdiction must only be for
New Acts Punished compelling reason and provided the court was
notified 24 hours in advance.
The law seeks to address certain abuses by law
enforcers as well as causes of unsuccessful prosecution 5. Defines and Penalizes the act of Delay and Bungling
or dismissal of drug cases filed in court. in the Prosecution of Drug Cases i.e. the
prosecution causes the unsuccessful prosecution or
1. Creation of a new qualifying aggravating the dismissal through patent laxity, inexcusable
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an Order of dismissal or Judgment of acquittal, 6. any person violating a regulation issued by the
based on the fault of the prosecution. Dangerous Drugs Board

6. In case of conviction: 7. any person authorized to conduct drug test who

a). the convict suffers the accessory penalty of issues false or fraudulent drug test results
disqualification to exercise civil rights and knowingly, willfully or through gross negligence
political rights and that rights are suspended
during the pendency of an appeal from such a 8. any gov‘t officer tasked with the prosecution of
conviction. drug-related cases under this Act who delays or
bungles the prosecution
b). After conviction by the RTC: there shall be
hearing for the confiscation and forfeiture of  For the purpose of enforcing the provisions of
unexplained wealth of the accused. In case the this Act, all school heads, supervisors and
article declared forfeited is a vehicle, the same teachers shall be deemed to be persons in
shall be auctioned not later than five days authority and, as such, are vested with the
from the order of confiscation or forfeiture power to apprehend, arrest, or cause the
apprehension or arrest of any person who shall
7. Prohibition against plea bargaining and violate any of the said provision. They shall be
disqualification from probation for those convicted considered as persons in authority if they are
of drug trafficking in the school or within its immediate vicinity,
or beyond such immediate vicinity if they are
8. Provides as a ground for removal from office of an in attendance in any school or class function in
elective official; that of having benefited from the their official capacity as school heads,
proceeds of drug trafficking or receipt of any supervisors or teachers
financial or material contribution or donation from  Any teacher or school employee who discovers
persons found guilty of drug trafficking. or finds that any person in the school or within
its immediate vicinity is violating this Act shall
Other Persons Liable have the duty to report the violation to the
1. public officer or employee who school head or supervisor who shall, in turn,
misappropriates, misapplies or fails to report the matter to the proper authorities.
account for confiscated, seized, or surrendered Failure to report in either case shall, after
DD, plant sources of DD, etc. hearing, constitute sufficient cause for
disciplinary action by the school authorities
2. any elective local or national official who have (sec 44)
benefited from the proceeds of trafficking of
DD or have received any financial/material Provisions Against Act affecting the Integrity of
contributions or donations from natural or juridical the evidence or their possible appropriation by
persons guilty of drug trafficking agents
1. Conduct of a Physical Inventory and Photographing
3. if the violation of the Act is committed by a of the Evidence
partnership, corporation, association or any judicial a. Immediately upon the arrest, seizure or
person, the partner, president, director, or manager confiscation
who consents to or knowingly tolerates such b. In the presence of (i) the accused or person
violation shall be held criminally liable as co- form whom the articles were taken or his
principal representative (ii) a representative form the
DOJ (iii) representative from the Media and
4.partner, president, director, manager, officer or (iv) an elected official. These persons must
stockholder, who knowingly authorizes, tolerates, also sign the written inventory
or consents to the use of a vehicle, vessel, or
aircraft as an instrument in the importation, sale, 2. Submission of the article within 24 hours to the
delivery, distribution or transportation of DD, or to Crime Laboratory for Quantitative ( how many kilos
the use of their equipment, machines or other or grams) and qualitative ( what kind of substance
instruments in the manufacture of any DD, if such was involved) examination
vehicle, vessel, aircraft, equipment, or other
instrument, is owned or under the control and 3. Requirement that the results of the crime
supervision of partnership, corporation, association laboratory examination must be under oath
or judicial entity to which they are affiliated
4. Upon the filing of the Information in Court:
5.any person who is found guilty of planting” any
DD and/or CP/EP, regardless of quantity or purity a. Conduct of an ocular inspection or examination
(penalty of death) of the evidence by the court within 72 hours.
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are kept if the same cannot be presented in D. upon application of the Board, the Court shall
court, or the evidence are actually brought and issue an order for recommitment if the drug
presented in court. dependent does not resubmit himself for
confinement or if he is not surrendered for
b. Destruction of the articles within 24 hours recommitment
following the inspection but representative
samples are taken and preserved E. If, subsequent to such recommitment, he
should escape again, he shall no longer be
5. Destruction of the representative samples after exempt from criminal liability for the use or
conviction, forfeiture and confiscation of other possession of any DD.
proceeds of the crime and
F. If a person charged with an offense with an
Provisions Intended To Benefit The Drug imposable penalty of less than 6 years and
Dependent- The Following Are Applicable Only If 1 day, and the Court or prosecutor, at any
The Charge Is For The Use Of Dd/Cp/Ec stage of the proceedings, finds that the person
charged with an offense is a drug
1. Community service in lieu of imprisonment dependent, the fiscal or court as the case
may be, shall suspend all further proceedings
2. Exemption from Criminal Liability for first and transmit records of the case to the Board.
time offenders who underwent treatment and If the Board determines that public interest
rehabilitation in a Drug Rehabilitation Center requires that such person be committed, it
under the supervision of the Dangerous Drugs shall file a petition for commitment. After
Board and were discharged thereafter commitment and discharge, the prosecution
shall continue. In case of conviction, the
Rules for Exemption from Criminal Liability judgment shall, if certified by the center for
of Drug Dependents through Voluntary good behavior, indicate that he shall be
Submission given full credit for the period of
confinement; provided when the offense is
A. Drug dependent who is finally discharged use of DD, and the accused is not a
from confinement shall be exempt subject to recidivist, the penalty shall have deemed
the ff. conditions: to have been served in the center upon
release.
1. complied with the Rules of the Center
2. never been charged or convicted of any G. the period of prescription of the offense charged
offence under this Act, the Dangerous shall not run during the time that the
Drugs Act of 1972, the RPC, or any special respondent/accused is under detention or
penal laws. confinement in a center
3. no record of escape from the Center;
provided if he escaped, he surrendered by H. A drug dependent who is discharged as
himself or through his parent, spouse, rehabilitated, but does not qualify for
guardian or relative w/in the 4th w/in 1 exemption, may be charged under this Act,
week. but shall be placed on probation and
4. poses no serious danger to himself, family undergo community service in lieu of
or community imprisonment and/or fine in the court‘s
discretion
B. Voluntary submission of a drug dependent to
confinement, treatment and rehabilitation by I. A drug dependent who is not rehabilitated after
the drug dependent himself or through his the second commitment to the Center under
parent, guardian or relative w/in the 4th in a the voluntary submission program shall, upon
center and with the compliance with such recommendation of the Board, be charged for
conditions therefor as the Dangerous Drugs violation of Sec 15 (use of DD) and be
Board may prescribe shall exempt him from prosecuted like any other offender. If
criminal liability for possession or use of the convicted, he shall be credited for the period
DD of confinement in the Center

C. Should the drug dependent escape from the 3. Suspension of sentence of a Minor First
center, he may submit himself for confinement Offender, Rules
w/in 1 week from the date of his escape, or
his parent, guardian or relative may, w/in the A. Supervision and rehabilitative surveillance
same period surrender him for confinement. of the Dangerous Drugs Board and under
such conditions that the court may impose for
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a period of 6-18 mos.
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2. Trial shall be terminated not later than 60 days from
Requisites for suspension: ate of filing of the Information

1. Accused is a minor over 15 years at the 3. The decisions shall be rendered within 15 days from
time of the commission of the offense but submission for decision
not more than 18 years of age when the
judgment should have been promulgated. Requirement Of A Mandatory Drug Test In The
(in the words of Pros. Ssgsago: A minor is Following
one who is over 15 at the time of the
commission of the offense but below 18 at a). Application and renewal of driver‘s license
the time of sentencing) b). Application for firearm‘s license or permit to carry
c). Annually for Officers and members of the AFP, PNP
2. He has not been previously convicted of and other law enforcement agencies
violating this Act, Dangerous Drugs Act of d). For all persons charged before the Prosecutor‘s
1972, RPC or any special penal laws Office for an offenses punishable by imprisonment
of not less than 6 years and one day
3. He has not been previously committed e). For all candidates for public office whether
to a Center or to the care of a DOH- appointive or elective, national or local
accredited physician
Requirement of a Random Drug test
4. The Dangerous Drugs Board favorably
recommends that his/her sentence be a). For high school and college students with parental
suspended consent and subject to the rules and regulations
of the student handbook
 Where the minor is under 15 years at the b). For officer and employees of public and private
time of the commission, Art 192 of Child offices subject to the company‘s work rules and
And Youth Welfare Code shall apply regulations
(suspension of sentence and commitment)
 Those found to be positive for dangerous drugs
B. the privilege of suspended sentence may be shall be subject to the provisions of Sec. 15 (Use of
availed of only once Dangerous Drugs), which involves rehabilitation
for a minimum period of 6 months for the first
C. if the minor violates any of the conditions of offense, or imprisonment of 6 to 12 years for the
his suspended sentence, rules of the Board, or second offense.
rules of the center, the court shall pronounce
judgment of conviction and he shall serve  The privilege of suspended sentence shall be
sentence as any other convicted person. availed of only once by an accused drug dependent
who is a first-time offender over fifteen (15) years
D. Upon promulgation of sentence, the court may, of age at the time of the commission of the
in its discretion, place the accused under violation of Section 15 (Use of Dangerous Drugs)
probation, or impose community service but not more than eighteen (18) years of age at
in lieu of imprisonment the time when judgment should be promulgated.
(Sec. 68)
 The suspension is discretionary upon the
court. Contra the Family Court Law ( RA 8369)
which provides that the suspension is Strengthening and Professionalization of the
mandatory) Fight against Drug Menace
 Upon favorable recommendation by the Board
the court shall discharge the accused and a). Creating of the Philippine Drug Enforcement
dismiss all the proceedings Agency ( PDEA) as the implementing arm of the
 All records shall be expunged and the minor Dangerous Drugs Board
shall not be criminal liable for perjury for b). the NARCOTICS group for the other law
concealment or misrepresentation of refusal to enforcement agencies are abolished
acknowledge or recite any fact concerning his c). Establishment of a PDEA ACADEMY which shall be
case. responsible for rte recruitment and training of
Provisions To Expedite Drug Cases PDEA agents and personnel and whose graduates
shall comprise the operating units of the PDEA
1. The Preliminary Investigation shall be terminated
within 30 days from filing and the Information hall Dangerous Drugs Board – shall be the policy-making
be filed within 24 hours from the termination of and strategy-formulating body in the planning and
the investigation formulation of policies and programs on drug
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prevention and control.
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6. if public official/ employee is the offender,
Philippine Drug Enforcement Agency (PDEA) – the maximum penalty shall be imposed
shall serve as the implementing arm of the Board, and
shall be responsible for the efficient and effective law 7. Any person convicted of drug trafficking or
enforcement of all the provisions on any dangerous pushing cannot avail of the Probation Law
drug and/or controlled precursor and essential chemical
as provided in the Act. 8. Immunity from prosecution and punishment
shall be granted to an informant, provided the
 Among the powers and duties of the PDEA is to ff. conditions concur:
prepare for prosecution or cause the filing of
appropriate criminal and civil cases violation of all a. necessary for conviction
laws on dangerous drugs, controlled precursors b. not yet in the possession of the State
and essential chemicals, and other similar c. can be corroborated on material points
controlled substances, and assist, support and d. has not been previously convicted of a
coordinate with other government agencies for the crime of moral turpitude, except when
proper and effective prosecution of the same. (Sec. there is no other direct evidence
84 [h]) e. comply with conditions imposed by the
State
 The PDEA shall be the lead agency in the f. does not appear to be the most guilty
investigation of any violation of RA No. 9165. (Sec. g. no other direct evidence available
86, last par.)
9. Limited applicability of the RPC  the
Rules for Lab Examination of RPC shall not apply to this Act, except in
Apprehended/Arrested Offenders the case of minor offenders. Where the
offender is a minor, the penalty for acts
1. If reasonable ground to believe that offender is punishable by life imprisonment to death shall
under the influence of DD, conduct examination be reclusion perpetua to death.
w/in 24 hrs
Hence, since RPC nomenclature of penalties is
2. Positive results shall be challenged w/in 15 days used, the minor is then entitled to mitigating
after receipt of the result through a confirmatory circumstances under the RPC (Martin Simon
test. case). Thus, the minor does not receive the
death penalty (Justice Peralta)
3. Confirmed test shall be prima facie evidence that
offender has used DD Some Principles Applied

4. Positive test must be confirmed for it to be valid 1. Drug cases are where the principles of Instigation
in a court of law and Entrapment are most often applied

Other Rules 2. Buy-bust operations are recognized as one of the

most effective means of arresting criminals in
1. In buy-bust operations, there is no law or rule flagranti. Where the arrest is due to a buy-bust the
requiring policemen to adopt a uniform way of presentation of the buy-money is not essential,
identifying buy money and as a general rule, the identification and
presentation of the civilian informer is considered
2. Absence of ultraviolet powder on the buy money privileged
is not fatal for the prosecution 3. If the accused is a CICL and the penalty is Life
Imprisonment, said penalty shall be understood to
3. if offender is an alien, an additional penalty of be Reclusion Perpetua thereby the minor is still
deportation w/o further proceedings shall be entitled to all the beneficial effects arising from his
imposed immediately after service of sentence minority, such as the reduction of the penalty by
degrees
4. A person charged under the Dangerous Drugs
Act shall not be allowed to avail of plea- Cases
bargaining
PP vs. Adam 10/13/03
5. A positive finding for the use of dangerous Appellant is guilty of the crime of attempted
drugs shall be a qualifying aggravating sale of shabu. As gleaned from the testimony of the
circumstance in the commission of a crime by poseur-buyer, the appellant merely showed the bag
the offender containing the shabu and held on to it before it was
confiscated. There is no evidence that the poseur-
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the purchase price of the shabu. There is no evidence
that the appellant handed over the shabu to the The law on gambling exemplifies the adage that what
poseur-buyer is legal is not necessarily moral. Although gambling is
under the title Crimes Against Morals, the law on
PP vs. Yang 2/16/04 gambling does not take morality into consideration. It
The consummation of the crime charged does not punish gambling per se because they
herein may be sufficiently established even in the adversely affect public morals, but that it punishes are
absence of an exchange of money. The offer to sell and gambling games which are not covered by a franchise
then the sale itself arose when the poseur-buyer or permit from the government.
showed the money to appellant, which prompted the
latter to show the contents of the carton, and hand it Article 195. What Acts Are Punishable in
over to the poseur-buyer. Mere showing of the said Gambling (repealed)
regulated drug does not negate the existence of an
offer to sell or an actual sale. The absence of actual or The applicable laws are:
completed payment is irrelevant, for the law itself
penalizes the very act of delivery of DD, regardless of (1) Presidential Decree No.1602 : (Simplifying and
any consideration. Payment of consideration is likewise Providing Stiffer Penalties for Violations of
immaterial in the distribution of illicit drugs Gambling Laws) and

PP vs. Chua 7/1/03 (2) R.A. No. 9287 (An Act Increasing the Penalties for
In a prosecution for illegal possession of a DD, Illegal Numbers Games, Amending Certain
mere possession of a regulated drug w/o legal provisions of P.D. 1602 and for Other Purposes).
authority is punishable under the Dangerous Drugs Act.
Lack of criminal intent or good faith does not exempt GAMBLING GAMES - refer to any game or scheme
appellants from criminal liability whether upon chance or skill, wherein wagers
consisting of money, articles or value or representatives
PP vs. Cadley 3/15/04 of value, are made.
A prior surveillance is not a prerequisite for the
validity of an entrapment or buy-bust operation, the It is the fact that bets are made which makes the game
conduct of which has no rigid or textbook method a gambling game. The game may be decided purely on
chance, purely on skill, or both.
PP. vs. Del Norte 3/31/04
In a prosecution for illegal possession of DD, It becomes illegal and therefore prohibited if it is not
the ff facts must be proven with moral certainty: (1) authorized by a franchise.
that the accused is in possession of the object
identified as a prohibited or regulated drug; (2) that However parlor games are exempted such as those
such possession is not authorized by law; and (3) that during wakes, unless it clearly appears that the wake
the accused freely and consciously possessed the said is unnecessarily prolonged as to be a cover excuse to
drug. In this case, proof of the accused‘s ownership of conduct illegal gambling
the house where the prohibited drugs were discovered
is necessary Basis for Liability: A mere spectator is not liable. An
accused must participate in an illegal gambling game in
any of the following manner:
TITLE VI
CRIMES AGAINST PUBLIC MORALS 1. Participating as a bettor
2. Acting as a personnel or staff: such as being the
Crimes against public morals guard or look-out; usher, cook, washer or
1. Gambling (Art. 195); entertainer
2. Importation, sale and possession of lottery tickets 3. Allowing one‘s vehicle, house, building, or land, to
or advertisements (Art. 196); be used in the operation of an illegal gambling
game
3. Betting in sport contests (Art. 197); 4. Acting as a collector or agent
4. Illegal betting on horse races (Art. 198); 5. Acting as coordinator, controller or supervisor
5. Illegal cockfighting (Art. 199); 6. Acting as a maintainer, manager, operator
6. Grave scandal (Art. 200); 7. Acting as a financier or capitalist
7. Immoral doctrines, obscene publications and 8. Acting as a protector coddler
exhibitions (Art. 201); and 9. Possession of Gambling paraphernalia or materials
8. Vagrancy and prostitution (Art. 202). 10. Failing to abate or to take action or tolerating, by a
public official, of a gambling game within his
GAMBLING AND LOTTERY jurisdiction
11. Any parent, Guardian, or persons exercising moral
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Introduction: authority or ascendancy over a minor, ward or
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incapacitated person who induces or causes the hazard and (iii) prize/advantage/inequality in amount
latter to participate in an illegal numbers game or value which is in the nature of prize. Examples are
raffle games.
KNOWINGLY PERMITING GAMBLING TO BE
CARRIED ON IN A PLACE OWNED OR ELEMENTS:
CONTROLLED BY THE OFFENDER 1. consideration
2. chance
ELEMENTS: 3. prize or some advantage or inequality in amount or
1. That a gambling game was carried on in an value which is in the nature of a prize.
inhabited or uninhabited place or in any building ,
vessel or other means of transportation.  No lottery where there is full value of money
2. That the place, building, vessel or other means of (criminal case-Olsen), but if inducement to win
transportation is owned or controlled by the prize is reason for purchase/subscription/others
offender. then even if full value for money is received – still
3. That the offender permitted the carrying on of lottery (Administrative Code, postal law-El Debate)
such games , knowing that it is a gambling game.  Proof that game took place or is about to take
place is not necessary; burden of evidence is
Penalties: If the foregoing pertains to any numbers shifted to accused to show that his possession is
game the penalties are specifically those provided for lawful or is not connected with jueteng game; but
in R.A. 8287 proof to the contrary is necessary when jueteng
lists pertain to games played on other dates
 Gambling in all its forms, unless allowed by law, is  Mere possession of lottery tickets or lottery
generally prohibited. The prohibition does not lists is a crime punished also as part of gambling.
mean that the Gov‘t cannot regulate it in the However, it is necessary to make a distinction
exercise of police power whether a ticket or list refers to a past date or to a
 Sports Contests: Betting, Game-fixing, Point- future date.
shaving, Game Machinations prohibited
 Before, the Revised Penal Code considered the skill Illustration: X was accused one night and found in
of the player in classifying whether a game is his possession was a list of jueteng. If the date
gambling or not. But under the new gambling law, therein refers to the past, X cannot be convicted of
the skill of the players is immaterial. gambling or illegal possession of lottery list without
 Under this law, even sports contents like boxing, proving that such game was indeed played on the
would be gambling insofar as those who are date stated. Mere possession is not enough. If
betting therein are concerned. Under the old penal the date refers to the future, X can be convicted by
code, if the skill of the player outweighs the the mere possession with intent to use. This will
chance or hazard involved in winning the game, already bring about criminal liability and there is no
the game is not considered gambling but a sport. need to prove that the game was played on the
It was because of this that betting in boxing and date stated. If the possessor was caught, chances
basketball games proliferated. are he will not go on with it anymore.
 As a general rule, betting or wagering determines
whether a game is gambling or not. Exceptions: There are two criteria as to when the lottery is in
These are games which are expressly prohibited fact becomes a gambling game:
even without bets. Monte, jueteng or any form of
lottery; dog races; slot machines; these are habit- 1. If the public is made to pay not only for the
forming and addictive to players, bringing about merchandise that he is buying, but also for the
the pernicious effects to the family and economic chance to win a prize out of the lottery, lottery
life of the players. becomes a gambling game. Public is made to pay
 Under this decree, a barangay captain who is a higher price.
responsible for the existence of gambling dens in
their own locality will be held liable and disqualified 2. If the merchandise is not saleable because of its
from office if he fails to prosecute these gamblers. inferior quality, so that the public actually does not
But this is not being implemented. buy them, but with the lottery the public starts
 Fund-raising campaigns are not gambling. They patronizing such merchandise. In effect, the public
are for charitable purposes but they have to obtain is paying for the lottery and not for the
a permit from Department of Social Welfare and merchandise, and therefore the lottery is a
Development. This includes concerts for causes, gambling game. Public is not made to pay a higher
Christmas caroling, and the like. price.
LOTTERY - A form of gambling whereby prizes are Illustrations:
distributed among persons who have paid, or agreed to
pay, a valuable consideration for the chance to obtain a (1) A certain supermarket wanted to increase its 18
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prices are offered at stake. To defray the cost Q: When are promo sales or advertising schemes
of the prices offered in the lottery, the considered lottery/gambling? ( This refers to the
management increased their prices of the practice of advertising goods for sale offering the
merchandise by 10 cents each. Whenever purchasers a chance to win a prize by giving them
someone buys from that supermarket, he pays coupons to be drawn later )
10 cents more for each merchandise and for
his purchase, he gets a coupon which is to be A: The scheme is considered a lottery or gambling if :
dropped at designated drop boxes to be (1) the public pays more than the price of the article
raffled on a certain period. because the excess is used to defray or cover the cost
of the prize or (2) the article is not saleable without the
The increase of the price is to answer for the prize and it becomes saleable only because of the
cost of the valuable prices that will be covered prize.
at stake. The increase in the price is the
consideration for the chance to win in the
lottery and that makes the lottery a gambling
game. Presidential Decree No. 1602 (Prescribing Stiffer
Penalties On Illegal Gambling)
But if the increase in prices of the articles or
commodities was not general, but only on PENALTY ACTS PUNISHED
certain items and the increase in prices is not prison correccional, 1. Any person who shall
the same, the fact that a lottery is sponsored medium or fine directly or indirectly
does not appear to be tied up with the ranging from take part in any illegal
increase in prices, therefore not illegal. P1,000 to P6,000 or unauthorized
activities or games of:
Also, in case of manufacturers, you have to in case of
determine whether the increase in the price recidivism: prision (1) cockfighting,
was due to the lottery or brought about by the mayor, medium or jueteng, jai alai or horse
normal price increase. If the increase in price fine ranging from racing to include bookie
is brought about by the normal price increase P5,000 to P10,000 operations and game
[economic factor] that even without the lottery fixing, numbers, bingo
the price would be like that, there is no and other forms of
consideration in favor of the lottery and the lotteries;
lottery would not amount to a gambling game.
(2) cara y cruz,
If the increase in the price is due particularly
pompiang and the like;
to the lottery, then the lottery is a gambling
game. And the sponsors thereof may be
prosecuted for illegal gambling under (3) 7-11 and any game
Presidential Decree No. 1602. using dice;

(2) The merchandise is not really saleable (4) black jack, lucky
because of its inferior quality. A certain nine, poker and its
manufacturer, Bhey Company, manufacture derivatives, monte,
cigarettes which is not saleable because the baccarat, cuajao,
same is irritating to the throat, sponsored a pangguingue and other
lottery and a coupon is inserted in every pack card games;
of cigarette so that one who buys it shall have
a chance to participate. Due to the coupons, (5) paik que, high and
the public started buying the cigarette. low, mahjong, domino
Although there was no price increase in the and other games using
cigarettes, the lottery can be considered a plastic tiles and the
gambling game because the buyers were really likes;
after the coupons not the low quality
cigarettes. (6) slot machines,
roulette, pinball and
If without the lottery or raffle, the public does other mechanical
not patronize the product and starts to contraptions and
patronize them only after the lottery or raffle, devices;
in effect the public is paying for the price not
the product.
(7) dog racing, boat
racing, car racing and 18
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other forms of races; jai-alai or horse racing
bookies, and similar
(8) basketball, boxing, games of lotteries and
volleyball, bowling, numbers which have
pingpong and other taken place or about to
forms of individual or take place.
team contests to Temporary absolute barangay official who,
include game fixing, disqualification with knowledge of the
point shaving and other existence of a gambling
machinations; house or place in his
jurisdiction fails to
(9) banking or abate the same or take
percentage game, or action
any other game prision correccional security officer, security
scheme, whether upon maximum or fine guard, watchman,
chance or skill, wherein ranging from P500 private or house
wagers consisting of to P2,000 detective of hotels,
money, articles of value villages, buildings,
or representative of enclosures and the like
value are at stake or which have the
made; reputation of a
gambling place or
where gambling
2. Any person who shall
activities are being held.
knowingly permit any
form of gambling in
inhabited or uninhabited  Informer's reward. Any person who shall disclose
place or in any building, information that will lead to the arrest and final
vessel or other means conviction of the malefactor shall be rewarded
of transportation owned twenty percent of the cash money or articles of
or controlled by him. value confiscated or forfeited in favor of the
prision correccional, 1.gambling in place with government.
maximum, fine of reputation of a  Playing for money is not a necessary
P6,000 gambling place, element. The law‘s purpose is to prohibit
frequent gambling absolutely those games
place, gov‘t bldg or brgy  Any other games if with wager of money, articles,
hall or value are at stake or made
 Individual/team contests: game-fixing, point
shaving, other machinations
2. maintainer or
 Spectators are not liable: must directly or indirectly
conductor of the above
take part; the law does not make it an offense to
gambling schemes.
be present in a gambling house.
prision mayor, if the maintainer,  A game or scheme is punishable even if winning
medium with conductor or banker of depends upon skill as long as wagers (consisting of
temporary absolute said gambling schemes money, articles of value or representative of value)
disqualification or is a government official, are at stake or made
fine of P6,000 or where such  Maintainer – person who sets up and furnishes
government official is
means to carry on gambling or scheme
the player, promoter,  Conductor- person who manages or carries on
referee, umpire, judge
gambling game or scheme
or coach in case of
game fixing, point Article 196. Importation, Sale and Possession of
shaving and
Lottery Tickets or Advertisements
machination.
prision correccional, any person who, ACTS PUNISHED RELATIVE TO LOTTERY
medium or fine knowingly and without TICKETS OR ADVERTISEMENTS
ranging from P400 lawful purpose, possess 1. By importing into the Philippines from any foreign
to P2,000 any lottery list, paper or place or port any lottery ticket or advertisement.
other matter containing 2. By selling or distributing the same in connivance
letters, figures, signs or with the importer.
symbols pertaining to or 3. By possessing , knowingly and with intent to use ,
in any manner used in lottery tickets or advertisements. 18
the games of jueteng,
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4. By selling or distributing the same without ACTS PUNISHABLE IN ILLEGAL BETTING ON
connivance with the importer. HORSE RACES
1. By betting on horse races during the periods not
 The possession of any lottery ticket or allowed by law.
advertisement is prima facie evidence of an intent 2. By maintaining or employing a totalizer or other
to sell, distribute or use the same. device or scheme for betting on races or realizing
profit therefrom, during the periods not allowed by
Article 197. Betting in Sport Contests (repealed) law.

This article has been repealed by Presidential When horse races not allowed
Decree No. 483 (Betting, Game-fixing or Point- 1. July 4 (Republic Act No. 137);
shaving and Machinations in Sport Contests): 2. December 30 (Republic Act No. 229);
3. Any registration or voting days (Republic Act No.
Act Punished 180, Revised Election Code); and
4. Holy Thursday and Good Friday (Republic Act No.
Game-fixing, point-shaving, game machination, as 946).
defined in the preceding section, in connection with the
games of basketball, volleyball, softball, baseball; Article 199. Illegal Cockfighting
chess, boxing bouts, jai-alia, sipa, pelota and all other
sports contests, games or races; as well as betting This article has been modified or repealed by
therein except as may be authorized by law, is hereby Presidential Decree No. 449 (The Cockfighting
declared unlawful. (S2) Law of 1974):

 Betting – betting money or any object or article Act Punished

of value or representative of value upon the result Any person who directly or indirectly participates in
of any game, races and other sports contests cockfights, by betting money or other valuable things,
or who organizes cockfights at which bets are made,
 Game-fixing – any arrangement, combination, on a day other than those permitted by law, or at a
scheme or agreement by which the result of any place other than a licensed cockpit.
game, races or sports contests shall be predicted
and/or knows other than on the basis of the Holding of Cockfights
honest playing skill or ability of the players or
participants Cockfighting shall be allowed only in licensed cockpits
during:
 Point-shaving – any such arrangement,
combination, scheme or agreement by which the 1. Sundays
skill or ability of any player or participant in a 2. Legal holidays, except: December 30, June 12,
game, races or sports contests to make points or November 30, Holy Thursday, Good Friday,
scores shall be limited deliberately in order to Election or Referendum Day, and registration days
influence the result thereof in favor of one or the for referendums and elections
other team, player or participant therein 3. Local fiestas for not more than three days
4. Provincial, municipal or city, industrial, commercial
 Game Machination – any other fraudulent, or agricultural fairs, carnivals, or exposition not
deceitful, unfair or dishonest means, method, more than three days upon resolution, subject to
manner or practice employed for the purpose of approval by Chief of Constabulary or his authorized
influencing the result of any game, races or sports representative – not allowed w/in month of local
contests fiesta or for more than two occasions a year in
same city or municipality
 Clearance for arrest, detention or prosecution – no
person who voluntarily discloses or denounces to Cockfighting for Entertainment of Tourists or for
the President of the Philippine Amateur Athletic Charitable Purposes
Federation or to the National Sports Association
concerned and/or to any law enforcement/ police Chief of Constabulary or his authorized representative
authority any of the acts penalized by this Decree may also allow the holding of cockfighting for:
shall be arrested, detained and/or prosecuted
except upon prior written clearance from the 1. Entertainment of foreign dignitaries
President of the Philippines and/or the Secretary of 2. Tourists
National Defense 3. Balikbayan
4. For support of national fund-raising campaigns for
Article 198. Illegal Betting on Horse Race charitable purposes as may be authorized by the
Office of the President, upon resolution of a
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for as long as the third person was not an
In licensed cockpits or in playgrounds or parks and intruder, grave scandal is committed
may be extended for only one time, for a period
not exceeding 3 days, w/in a year to a province,  The act must not be punished under any other
city or municipality provision of the Code as this is a crime of last
resort or a catch-all crime.
 Permitting gambling of any kind in cockpit is  The scandalous acts affect public morals or
punished under the same Decree (owner, manager sensitivity and have nothing to do with violations of
or lessee of cockpit that permits gambling shall be public peace and tranquility. Thus two persons
criminally liable) fighting or shouting at each other in a public place
 Spectators in cockfight are not liable unless he would constitute Alarm and Scandal. But when
participates as bettor these same two persons engage in a strip tease
 Only allows one cockpit per municipality, unless contest in full view of people, the act would be
the population exceeds 100,000 in which case two Grave Scandal.
cockpits may be established;  DECENCY means properly observing the
 Only municipal and city mayors are allowed to requirements of modesty, good taste
issue licenses for such.  CUSTOMS refer to established usage, social
conventions carried on by tradition and enforced
by social disapproval in case of violation
Offenses Against Decency and Good Custom  The essence of GRAVE SCANDAL is publicity and
that the acts committed are not only contrary to
Article 200. Grave Scandal morals and good customs but must likewise be of
such character as to cause public scandal to those
Concept: witnessing it.

It is a crime consisting of the performance or doing any Illustrations:

act which is highly scandalous as to offend against
decency and good custom. (1) A man and a woman enters a movie house
which is a public place and then goes to the
Elements darkest part of the balcony and while there the
man started performing acts of lasciviousness on
1. Offender performs an act or acts; the woman.
2. Such act or acts be highly scandalous as offending
against decency or good customs; If it is against the will of the woman, the crime
3. The highly scandalous conduct is not expressly would be acts of lasciviousness. But if there is
falling within any other article of this Code; and mutuality, this constitutes grave scandal. Public
4. The act or acts complained of be committed in a view is not necessary so long as it is performed in
public place or within the public knowledge or a public place.
view.
(2) A man and a woman went to Luneta and slept
 The act, either a physical observable activity or there. They covered themselves their blanket and
audible noise, both of which scandalizes those who made the grass their conjugal bed.
see or hear them. As for instance the act of
engaging in a torrid kissing, urinating or defecating This is grave scandal.
or going around in scanty attire, or loud obscene
sex noises (3) In a certain apartment, a lady tenant had the
 They must be done either: habit of undressing in her room without shutting
the blinds. She does this every night at about
a) In a public place i.e where people usually go eight in the evening. So that at this hour of the
or congregate such as in parks, movie houses, night, you can expect people outside gathered in
bazaars, malls. In these places the presence of front of her window looking at her silhouette. She
third persons is not required; in other words, was charged of grave scandal. Her defense was
public view is not required. that she was doing it in her own house.

(b) Within public knowledge or public view. It is no defense that she is doing it in her private
This refers to private houses, rooms, grounds, home. It is still open to the public view.
veranda, but the noises made are so loud or
the acts can be seen by third persons. The (4) In a particular building in Makati which stands
third person must not however be a Peeping right next to the house of a young lady who goes
Tom. Note that the number of people who sunbathing in her poolside. Every morning several
sees it is not material; Even if there was only men in the upper floors would stick their heads out
18
one person who witnessed the offensive act to get a full view of said lady while in her two-
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piece swimsuit. The lady was then charged with
grave scandal. Her defense was that it is her own 4. Persons who sell, give away, or exhibit films,
private pool and it is those men looking down at prints, engravings, sculptures, or literature,
her who are malicious. which are offensive to morals.

This is an act which even though done in a private  Hence mere possession of pornographic
place is nonetheless open to public view. literature is not per se punished. It is the act
of distributing to people or circulating the
Article 201. Immoral Doctrines, Obscene same which is punished. Letting one person
Publications and Exhibitions and Indecent borrow or read is not however distributing.
Shows
 Publicity is an essential element. The law is not
Persons Liable and Acts Punished concerned with the moral of one person. As long
as the pornographic matter or exhibition is made
1. Those who shall publicly expound or proclaim privately, there is no crime committed under the
doctrines openly contrary to public morals; Revised Penal Code because what is protected is
the morality of the public in general. Third party is
 As for instance advocating polygamy or wife- there. Performance of one to another is not.
swapping or killing off the mental/physical  A prosecution for obscenity under this Article is the
retardates to improve the Filipino race third limitation to the Freedom of Speech and
Press
 What about advocating same-sex marriage? Or  MORALS imply conformity to generally accepted
opening an exclusive ‖nudist camp‖? standards of goodness or rightness in conduct or
character.
2. In reference to obscene literature:  INDECENCY - an act against the good behavior
and a just delicacy.
(i) The authors of obscene literature if they had
knowledge of the publishing of their works in Test Of Obscenity
any form. Thus writing an obscene literature is
not per se punished but if the authors allow What is lewd is not necessarily obscene. Nudity is not
said works to be circulated to any third person, by itself obscenity. What then is the test for
then they become liable. If the wok is stolen obscenity? (i.e that which offends against chastity,
and circulated without their knowledge, they decency or delicacy)
are not liable.
1. Per U.S. vs. Kottinger ( 1923):
(ii) The editors publishing such literature
a). Tendency to Corrupt Test - whether the
(iii) The owners/operators of the establishment matter has a tendency to deprave or corrupt
selling the same those whose minds are open to such immoral
influence and into whose hands a publication
3. In reference to obscene, indecent, or immoral plays, or other article charged as obscene may fall.
scenes, acts or shows: (This test is too subjective and does not offer
an objective criterion. A matter may corrupt
(i). The persons who exhibit them (in theaters, one person but may have no effect on
fairs, cinematographs, or any other place) another). (Ortega, however, asserts that the
including the producers, actors, movie test is objective. It is more on the effect upon
house/theater owners the viewer and not alone on the conduct of the
performer.)
 These include plays, scenes, acts, shows
whether live or in film which e.g. A sexy dancing performed for a 90 year
old is not obscene anymore even if the dancer
1) glorify criminals or condone crimes strips naked. But if performed for a 15 year
2) serve no other purpose but to satisfy old kid, then it will corrupt the kid‘s mind.
the market for violence, lust or (Apply Kottinger Rule here.)
pornography
3) offend any race or religion b). That which shocks the ordinary and common
4) tend to abet traffic in and use of sense of man as indecency. (This is vague.
prohibited drugs Moral values vary according to circumstances
5) are contrary to law, public order, of time, place and occasion)
morals, good customs, established
policies, lawful orders, decrees and 2. (Commercial or profit motive) PP vs. Go Pin (
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edicts 1955): In reference to pictures if these were used
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not exactly for art‘s sake but rather for commercial  May smut or pornographic materials be seized from
purposes, the pictures are not entitled to be vendors in the street? The case of Pita vs. Ct. of
protected Appeals ( 178 SCRA 362) laid down the following
guidelines:
3. (Impure motive or theme of a picture) per PP.
vs. Serrano a Court of Appeals case in l950 a). The authorities must apply for the issuance of a
search warrant from a judge, if in their
4. (Redeeming element) PP vs. Padan (1957) the opinion, an obscenity rap is in order
work must have some redeeming element b). The authorities must convince the Judge that
the materials are obscene and pose a clear
(If the performance elicits or arouses sexual and present danger of an evil substantial
reactions) as in PP vs. Aparici, the accused was a enough to warrant state interference and
performer in the defunct Pacific Theatre, a movie action
house which opens only at midnight. She was c). The Judge must determine on a case-to-case
arrested because she was dancing in a ―different basis if the materials are obscene
kind of way.‖ She was not really nude. She was d). If in his opinion the Judge finds probable
wearing some sort of an abbreviated bikini with a cause he may issue the search warrant
flimsy cloth over it. However, on her waist hung a e). The proper criminal case must then be filed in
string with a ball reaching down to her private part court
so that every time she gyrates, it arouses the
audience when the ball would actually touch her Personal Opinion: If the magazines, comics or
private part. The defense set up by Aparici was periodicals, pictures or VCD tapes being sold are
that she should not be criminally liable for as a however clearly pornographic, the seller is actually
matter of fact, she is better dressed than the other violating Article 201 and hence he may be arrested
dancers. The Supreme Court ruled that it is not in flagranti delicto and the article seized right on
only the display of the body that gives it a the spot. The Pita case should not be made to
depraved meaning but rather the movement of the apply to situations such as this, or where the
body coupled with the ―tom-tom drums‖ as vendor or the articles might disappear before the
background. Nudity alone is not the real scale. search warrant is issued. Otherwise the Pita
(Reaction Test) decision would stifle and defeat the intend of the
law to prevent and punish pornography.
5. Gonzales vs. Katigbak (1985) followed the trend in
the United States and adopted the test laid down  If a work, such as a movie, has been approved by
in the case of Roth vs. California which was later a government agency for public viewing or
modified in Miller vs. California which set the reading, a charge under Article 201 will not
following guidelines: prosper. Because there is a government body
which deliberates whether a certain exhibition,
a). Whether the average person, applying movies and plays is pornographic or not, if such
contemporary standards, would find that the body approves the work the same should not be
work taken as a whole, appeals to prurient charged under this title. Because of this, the test
interest ( those which are dirty, intended to of obscenity may be obsolete already. If allowed
arouse sexual cravings, things which have by the Movies and Television Review and
something to do with unsafe or healthy sex). Classification Board (MTRCB), the question is moot
and academic.
b). Whether the work depicts or describes, in a  If a woman who is scantily dressed poses and
patently offensive way, sexual conduct walks about in a public place, she may be charged
specifically defined by the applicable law for grave scandal. But when she starts gyrating
erotically, the charge would be Violation of Article
c). Whether the work lacks serious literary, artistic, 201 for obscene acts.
political or scientific value  A sidewalk vendor was arrested and prosecuted for
violation of Article 201. It appears that the fellow
 QUERRY: Can there be such a thing as ―Art for was selling a ballpen where one who buys the
Arts sake‖? (Personal opinion: Any human ballpen can peep into the top of the pen and see a
endeavor, especially in the field of arts must be to girl dancing in it. He put up the defense that he is
uplift or improve man either materially, spiritually not the manufacturer and that he was merely
or aesthetically. They must contribute to what is selling it to earn a living. The fact of selling the
universal, good, and beautiful) ballpen was being done at the expense of public
morals. One does not have to be the
Mere nudity in paintings and pictures is not manufacturer to be criminally liable. This holds
obscene. true for those printing or selling Playboy
Magazines.
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DISPOSITION OF PROHIBITED ARTICLES  The common concept of a vagrant is a
The disposition of the literature, films, prints, person who loiters n public places without any
engravings, sculptures, paintings or other materials visible means of livelihood and without any lawful
involved in violation shall be governed by the following purpose. While this may be the most common form
rules: of vagrancy, yet even millionaires or one who has
1. Upon conviction of the offender – to be forfeited in more that enough for his livelihood can commit
favor of the government to be destroyed. vagrancy by habitually associating with prostitutes,
2. Where the criminal case against the violator of the pimps, ruffians, or by habitually lodging in houses
decree results in an acquittal – to be forfeited in of ill-repute.
favor of the government to be destroyed, after  Vagrancy is not only a crime of the
forfeiture proceedings conducted by the chief privileged or the poor. The law punishes the act
constabulary. involved here as a stepping stone to the
3. The person aggrieved by the forfeiture action of commission of other crimes. Without this article,
the Chief of Police may, within 15 days after his law enforcers would have no way of checking a
receipt of the copy of the decision, appeal the person loitering in the wrong place in the wrong
matter to the Secretary of the National Defense for time. The purpose of the law is not simply to
review. The decision of the Secretary of the punish a person because he has no means of
National Defense shall be final and unappealable. livelihood; it is to prevent further criminality. Use
(sec. 2, P.D. 969) this when someone loiters in front of your house
every night.
 Any person found wandering in an estate
Article 202. Vagrants and Prostitutes; Penalty belonging to another whether public or private
without any lawful purpose also commits vagrancy,
(Is this a crime against status?) unless his acts constitutes some other crime in the
Revised Penal Code.
Not applicable to CICLs.  If a person is found wandering in an
estate belonging to another, whether public or
Four kinds of Vagrants/Persons Liable private, without any lawful purpose, what other
crimes may be committed?
1. (The Lazy one). A person with no apparent
means of subsistence, but physically able to work, When a person is apprehended loitering inside an
neglect to apply himself to some lawful calling estate belonging to another, the following crimes
may be committed:
 It is not being unemployed per se which is
punished but the refusal to look for work (1) Trespass to property under Article 281 if the
estate is fenced and there is a clear prohibition
2. (The Tourist) Any person found loitering about against entering, but the offender entered
public or semi public buildings or places, or without the consent of the owner or overseer
tramping or wandering about the country or streets thereof. What is referred to here is estate, not
without visible means of support dwelling.

3. (The bugao and maton) An idle or dissolute (2) Attempted theft under Article 308, paragraph
(immoral, lax, unrestrained; includes maintainer of 3, if the estate is fenced and the offender
house of prostitution) person who lodges in houses entered the same to hunt therein or fish from
of ill fame; ruffians (brutal, violent, lawless, any waters therein or to gather any farm
barairongs in Ilokano) and one who habitually products therein without the consent of the
associates with prostitutes owner or overseer thereof;

 Absence of visible means of support is not (3) Vagrancy under Article 202 if the estate is not
required hence wealthy people may be fenced or there is no clear prohibition against
vagrants under this mode entering.

4. (The suspicious stranger) One found loitering in  If P fenced and with Trespass to
any inhabited or uninhabited place belonging to ro prohibition of entry Dwelling
another without any lawful or justifiable reason st If fenced and entered Attempted Theft
 The vagrant may have wealth it to hunt/fish
 This is a preventive measure to prevent ut If not fenced and with Vagrancy
the commission of some other more serious io no prohibition of entry
offense n and vagrancy are both punished by the same
 The estate is not fenced article, but prostitution can only be committed by a
woman.
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Prostitutes - women who habitually engages in NOTE: Giving alms through organized agencies
(I) sexual intercourse or (2) or lascivious conduct, operating under the rules and regulations of the
for money or profit. Ministry of Public Information is not a violation of the
Mendicancy Law.
 Habitually means not just an occasional
intercourse or lascivious but it signifies that  Under R.A 9344, persons below 18 years of age
the woman resorts to sexual intercourse or shall be exempt from prosecution for the crime of
lascivious conduct as a means of livelihood; vagrancy and prostitution under Sec 202 of
not just one man. RPC, mendicancy under PD 1563, and sniffing
 Profit may include being financed in a lady‘s of rugby under PD 1619, such prosecution being
schooling, payment of rentals or by way of inconsistent with the United Nations Convention of
articles of value the Rights of the Child
 If the lady agrees that she will not any more
sleep with other men but will become the
exclusive bed partner of one man, in exchange Title VII. Crimes Committed by Public
for an apartment or house, she is still a Officers
prostitute. But when they become lovers, she
is no longer a prostitute. Introduction
 Example of Lascivious conduct: strip tease
dancing before men, or kissing or fondling or Although the offenders are principally public officers,
being fondled there are crimes under this title which may also be
 A man who engages in nude dancing for a fee, committed by private persons by themselves as such,
as well as call boys, cannot be charged for like if the crime of Infidelity in the Custody of a
prostitution but for vagrancy Prisoner and Malversation by a Private person under
 Question: Must the partner of the prostitute be Article 222. They may also be liable when they conspire
a man in case of lasciviousness conduct? with the public officer or when they participate as
 In law the mere indulging in lascivious conduct accomplices or accessories.
habitually because of money or gain would
amount to prostitution, even if there is no ART. 203 - WHO ARE PUBLIC OFFICERS
sexual intercourse. Virginity is not a defense.
Habituality is the controlling factor; is has to REQUISITES:
be more than one time. To be a public officer one must be –
 There cannot be prostitution by conspiracy. 1. Taking part in the performance of public functions
One who conspires with a woman in the in the government , or performing in said
prostitution business like pimps, taxi drivers or Government or in any of its branches public duties
solicitors of clients are guilty of the crime as an employee, agent or subordinate official, of
under Article 341 for white slavery. any rank or class; and
2. That his authority to take part in the
performance of public functions or to
Related Offense - P.D. 1653 – MENDICANCY perform public duties must be-
a) by direct provision of the law, or
Mendicancy under P.D. 1563 which punishes those who b) by popular election, or
uses begging as a means of living as well as those c) by appointment by competent authority
giving money.
 There is no distinction between a public office and
Non applicability to CICLs. a public employee so long as the person: (i) takes
part in performance of public functions or (ii)
Persons Liable: performs public duties
 It is not the nature of the appointment which
1. Mendicant – those with no visible and legal means counts but the duties performed. They may be
of support, or lawful employment and physically permanent, temporary or casual officers. Hence
able to work but neglects to apply himself to lawful one appointed as mere laborer but whose function
calling and instead uses begging as means of living is to sort and file money orders, or emergency
(higher penalty if convicted 2 or more times) helper but whose functions include custody of
documents, is a public officer
2. Any person who abets mendicancy by giving  They include members of a special body created by
alms on public roads, sidewalks, parks and bridges law, to perform a function for the government, as
except if given through organized agencies in the Centennial Commission
operating under rules and regulations of Ministry of
Public Information
Malfeasance and Misfeasance in Office
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(Arts. 204-212)
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Dereliction of Duty not the fact that the decision was reversed on
appeal which brings about the crime but proof of
Breach of Office are classified into three forms the ill motive.
 It also covers those which are rendered through
MALFEASANCE - doing an act prohibited by law or negligence which is manifest or inexcusable, or
that which ought not to be done or not supposed to be through ignorance. Example: applying a law which
done. As in arresting a person who has not committed has been repealed or a decision which has been
a crime or spending money under one‘s custody reversed. Judges are required to keep abreast of
latest developments in the law and in
MISFEASANCE - the improper or irregular jurisprudence.
performance of an act which is allowed to be done  There is no liability at all for a mere error in good
faith
NONFEASANCE - the non performance, failure or  There must be evidence that judgment is unjust
refusal to an act which one is required to do for it canot be presumed.

Dereliction of Duty by Officers Related to ART. 205 - JUDGMENT RENDERED THROUGH

the Administration of Justice NEGLIGENCE
ELEMENTS:
Introduction
1. That the offender is a judge
2. That he renders a judgment in a case submitted to
The offenses covered by Articles 204 to 209 pertain to
him for decision
acts by Judges, Prosecutors and Lawyers (who are
3. That the judgment is manifestly unjust
officers of the Court). They are generally considered as
4. That it is due to his inexcusable negligence or
prevaricacion or crimes involving betrayal of trust
ignorance
DERELICTION BY JUDGES (Articles 204 t0 207)
―MANIFESTLY UNJUST JUDGMENT‖ - It so manifestly
contrary to law, that even a person having a meager
The Judges referred to are Trial Court Judges and not
knowledge of the law cannot doubt the injustice.
to Judges of Collegial or Appellate Courts
Abuse of discretion or mere error of judgment is not
―(It) has no application to members of collegial courts
punishable.
such as the Sandiganbayan or its divisions, who reach
their decision in consultation and accordingly render
ART.206 – UNJUST INTERLOCUTORY ORDER
their collective judgment after due deliberation‖ (Cortes
vs. Chico-Nazario 422 SCRA 541)
ELEMENTS:
1. That the offender is a judge
ART. 204 – KNOWINGLY RENDERING UNJUST
2. That he performs any of the following acts:
JUDGMENT
a) knowingly renders unjust interlocutory order or
ELEMENTS: decree, or
1. That the offender is a judge b) renders a manifestly unjust interlocutory order
2. That he renders a judgment in a case submitted to or decree through inexcusable negligence or
him for decision ignorance
3. That the judgment is unjust
4. That the judge knows that his judgment is unjust q - is one which decides on an issue related to the case
but does not decide the case on the merit or on the
JUDGMENT - the final consideration and evidence.
determination of a court of competent jurisdiction
upon the matters submitted to it, in an action or Example: granting bail to a non-bailable offense.
proceeding.
Note: Before a Judge can be charged for Rendering an
UNJUST JUDGMENT - one which is not in accordance Unjust Judgment or Unjust Interlocutory Order, there
with the law and the evidence. must be a ― final and authoritative judicial declaration
that the decision or order in question is indeed unjust.‖
SOURCES OF UNJUST JUDGMENT The pronouncement may result from either:
a) Error, or 1. An action for Certiorari or prohibition in the higher
b) ill-will or revenge, or court impugning the validity of the judgment or
c) Bribery 2. An administrative proceeding in the Supreme Court
against the judge precisely for promulgating an
 According to Sir Sagsago, the intention is to favor unjust judgment or order (Joaquin vs. Borromeo,
a party or to cause damage to another; or 241 SCRA 248)
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ART. 207 – MALICIOUS DELAY IN THE as accessories under Article 19 i.e assisting in the
ADMINISTRATION OF JUSTICE escape of the principal, or that they may be liable
under the Anti-Graft and Corrupt Practices Act; or
ELEMENTS:
under PD. 1829 for obstruction of justice .
1. That the offender is a judge
2. That there is a proceeding in court
Personal view: If the offense by the criminal is
3. That he delays the administration of justice
punished by a special law, where there are no
4. That the delay is malicious, that is, the delay is
accomplices or accessories, the charge should be
caused by the judge with deliberate intent to inflict
under Article 208. The same should be true in case
damage on either party in the case
the offense tolerated is a light felony
Example: delay in the calendaring or cases; frequent
grant of postponements, delaying the decision or
ART. 209 - BETRAYAL OF TRUST BY AN
failure to render the decision within the time allowed
ATTORNEY OR SOLICITOR- REVELATION OF
by law
SECRETS

DERELICTION OR PREVARICACION (BETRAYAL PUNISHABLE ACTS:

OF TRUST) BY PROSECUTORS 1. Causing damage to his client, either:
a) by any malicious breach of professional duty;
ART. 208 - PROSECUTION OF OFFENSES; or
NEGLIGENCE AND TOLERANCE b) inexcusable negligence or ignorance
Introduction
Examples: failure to pay the appeal fee or to file
an Answer or to submit a Formal Offer of Evidence
Article 208 embraces all public officers whose official
duties involve the initiation of prosecution for the
2. Revealing any of the secrets of his client learned
punishment of law violators. They include:
by him in his professional capacity
1. Prosecutors and their assistants
 damage not necessary
2. BIR agents who fail to report violations of the NIRC
3. Forestry Agents who fail to apprehend and file
This is the second offense involving disclosure of
charges against illegal loggers
secrets. Secrets are to be construed as including
4. Chiefs of Police in municipalities who are by law
the lawyer‘s advise; papers, documents and
allowed to appear as prosecutors in the MTC/MCTC
objects delivered by the client; the lawyer‘s
in the absence of regular Prosecutors
impressions of the client
5. Barangay Captains
3. Undertaking the defense of the opposing party in
PUNISHABLE ACTS:
the same case without the consent of his first
1. By maliciously refraining from instituting
client
prosecution against violators of the law
 if the client consents to the attorney‘s taking
2. By maliciously tolerating the commission of a crime
the defense of the other party, there is no
crime
REQUISITES:
1. That the offender is a public officer who has a duty
PROCURADOR JUDICIAL - a person who had some
to cause the prosecution of, or to prosecute
practical knowledge of law and procedure, but not a
offenses
lawyer, and was permitted to represent a party in a
2. That knowing the commission of the crime, he
case before an inferior court.
does not cause the prosecution of the criminal (i.e
to gather evidence and then file the appropriate
Note: The crime is without prejudice to the
charges) OR knowing that a crime is about to be
administrative liability of the attorney
committed he tolerates its commission
3. That the offender acts with malice and deliberate
BRIBERY
intent to favor the violator of the law
Introduction:
 If in case of an illegal numbers game, the offense
would be under RA. 9286
Bribery connotes the idea of a public officer utilizing
 The crime committed by the law violator must first
the power, influence or prestige of his office for the
be proved as basis fro conviction for dereliction.
benefit of an individual in exchange for a consideration.
 Query: May policemen or law enforcement agents
The accused must always be a public officer. There
be held liable if they see a crime but do not arrest
must always be consideration. The offense can not be
the criminal or do not investigate, gather evidence
considered bribery if there is no consideration but the
and charge the criminal? The view is that they are
act may be considered as a violation of the Anti-Graft 19
not liable under Article 208 but they are to be held
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 This has no frustrated or attempted stage
Forms of Bribery since the mere agreement consummates the
1. Simple Bribery which is either: crime.
(a). Direct  If the act constituting a crime was committed,
(b) Indirect the officer is liable for bribery and for the
2. Qualified Bribery additional crime so committed. The bribe giver
will also be liable for the crime. Bribery is
Article 210. Direct Bribery never absorbed or complexed but is always
punished separately. But in the crime of
Elements Delivering Prisoners, bribery constitutes a
qualifying aggravating circumstance.
1. Offender is a public officer within the scope of  Example: The Jail Guard agreed with Mr. BB to
Article 203; kill X, an inmate, in exchange for money. The
2. Offender accepts directly an offer or a promise or crime is committed if (i) he has already
receives a gift or present by himself or through received the money but was arrested before
another; he can kill X (ii) he killed X but Mr. BB failed to
3. Such offer or promise be accepted, or gift or give the money and (iii) He killed X and was
present received by the public officer – paid either before or after the killing. In the
a. With a view to committing some crime; or second and third instance, the officer and Mr.
b. In consideration of the execution of an act BB are liable also for murder/homicide for the
which does not constitute a crime, but the act killing.
must be unjust; or
c. To refrain from doing something which it is his 2. Accepting a gift in consideration of the execution of
official duty to do. an act which does not constitute a crime, in
4. The act which offender agrees to perform or which connection with the performance of his official duty
he executes be connected with the performance of (but is unjust or the doing is improper or unfair);
his official duties.
 The gift was accepted by the public officer.
Acts punished / Modes of Commission of Direct  The act done is within the proper functions or
Bribery (which is the basis for the penalty to be duties of the public officer. Hence to constitute
imposed): bribery, the consideration must be actually
received. Future promises or offers or
1. Agreeing to perform, or performing, in consideration consideration to be given after the doing, such
of any offer, promise, gift or present – an act as reward, do not give rise to bribery.
constituting a crime, in connection with the  If the officer performed the act regularly,
performance of his official duties. (e.i. the act properly, or in accordance with law, he is not
amounted to a crime) liable even if he already received the
consideration.
Example: Falsification and destruction of papers,  If the act was done improperly without any
records and properties, killing of inmates, robbery consideration, the officer is not liable for
and taking of money or valuables, invalid arrests, bribery but he may be:
releasing of persons detained (a). Administratively liable
(b). Liable under the Anti Graft and Corrupt
 Three instances when it is consummated: Practices Act
a). The act agreed upon was not yet
performed but a consideration has already  If the officer received the consideration but he
been received (even if consideration not did not do the act as agreed upon, he may be
actually received because acceptance of sued for the recovery of the consideration and
offer or gift would be sufficient) for estafa by means of deceit.
b). The act was executed even if the  There are only two stages: (i) attempted when
consideration has not yet been received the officer agreed to do the act for a
c). The act was executed and the consideration and received the consideration
consideration has been received but was not able to perform the act and (ii)
consummated when the act was executed and
Conspiracy to Commit Bribery: If the the officer received the consideration.
officer merely agreed but did not actually do  Examples:
the act and he did not yet receive nor was
given the consideration, there is also the crime (a). For money received, the Court sheriff
of bribery. This is in the nature of a conspiracy delayed the service of summons to the
which is punished. defendant or that he did not immediately
serve the writ of execution until the
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 The accused in the direct bribery case is the public
(b) The complainant paid the policeman to officer only. The bribe giver will be punished for
serve the warrant of arrest of the accused Corruption of a Public Officer.
on Saturday so that the accused will not
be able to post bail. The police however Private persons are liable if they are performing
served the warrant on Friday allowing the public functions such as assessors, arbitrators,
accused the accused to post bail. The appraisers and claim commissioners. These private
police is not liable for bribery but the bribe persons are usually designated and/or directed by
giver is liable for attempted corruption. the court to perform these functions as part of
But he may file a case to recover the pending proceedings, and to submit their findings
money. to the court. (Art 210 last par)

(c). The police received the money but when For purposes of this article, temporary
he went to arrest on a Friday night, the performance of public functions is sufficient to
accused had already posted bail that constitute a person a public officer.
morning. He is liable for consummated
bribery even if the purpose was not  The act or omission must be in relation to the
achieved. officer‘s duties or functions otherwise the crime
would be estafa.
(d). NBI agents learned the money will be  The consideration need not be in terms of money
given on Friday morning. When the money or articles of value so long as it has a pecuniary
was given the NBI agents who were value. This is because the penalty of fine is based
waiting, arrested both the giver and the on the value of the consideration given. Those in
police. Did the policeman commit direct the form of favors or service or non-material
bribery? considerations may induce a public official to do
any of the acts contemplated by law. However
(e). Receiving money to give preference to a there is the question of determining the value as
late application over others earlier basis for the fine.
submitted
The consideration may be given to the officer
3. Agreeing to refrain, or by refraining, from doing directly or to members of his family or persons
something which it is his official duty to do, in closely associated with the officer.
consideration of gift or promise. (There is non-
performance of an official duty due to a Examples of Consideration in the form of
consideration provided the non-performance does services: the employment or promotion of a
not amount to a crime. If so it is bribery of the first family member in a certain company; or the giving
mode.) of a contract to the company of the wife; or that
the private person will shoulder the expenses of
 Examples: the birthday party of the officer‘s son.

a). A stenographer received money such that The borrowing of a vehicle by the LTO Director
she did not record the testimony. from a transportation company can be considered
as a gift in contemplation of law (Garcia vs.
b). For money received, the clerk did not Sandiganbayan 507 SCRA 258)
include the case in the court calendar or
that he did not send the required notices  Ateneo: Bribery exists when the gift is: 1.
to witnesses. voluntarily offered by a private person, 2. solicited
by the public officer and voluntarily delivered by
c). Omission to accept and/or record a the private person, 3. solicited by the public officer
pleading filed but the private person delivers it out of fear of the
consequences should the public officer perform his
 This third mode of bribery and prevaricacion functions (here, the crime by the giver is not
(art 208) are similar offenses, both consisting corruption of public officials due to his
of omissions to do an act required to be involuntariness)
performed. HOWEVER, in direct bribery, a gift
or promise is given in consideration of the  The giving of the consideration must be mutual,
omission. This element is not necessary in either at the suggestion of the bribe giver or upon
prevaricacion. the solicitation of the officer.

Common Principles: 1. If it was the officer who solicited but the

private person reported it leading to an
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entrapment and the subsequent arrest of the Article 211. Indirect Bribery
officer, the crime is merely attempted bribery.
2. If it was the private person who voluntarily Concept: The crime committed by a public officer who
gave but the officer used the consideration as accepts a gift given by reason of his office or position.
evidence, it is Attempted Corruption of a Public A gift is actually received and not future promises or
Officer offers. The officer must have done an act appropriating
the gift for himself, his family or employees. ― The
 If the private person was compelled to agree to essential ingredient … is that the public officer
give a consideration due to force, threat or concerned must have accepted the gift or material
intimidation on the part of the officer, the act is consideration (Garcia vs. Sandiganbayan 507 SCRA
called extortion or mulcting but the proper name of 258)
the offense is robbery
 If a person gives money to a public officer as Elements
consideration for the officer to do or not to do his
duty for the benefit of the person, when will the 1. Offender is a public officer;
receipt constitute robbery and when will it be 2. He accepts gifts;
bribery? 3. The gifts are offered to him by reason of his office.

1. If the money was given willingly at the instance  Illustrations:

of the giver, it is bribery
1. An envelope was left on top of the desk of
2. If he was forced to give, it is robbery officer. The officer called his staff and told
them to use all the amount to buy food and
3. If the giver committed a crime and at his own snacks. This is indirect bribery.
instance he gives money so as to avoid arrest 2. If the officer however gave it to the Jail or to
and prosecution, the receipt thereof would be some children, he is not liable
bribery. 3. If he simply let the envelope drop on the floor
and left it there, he is not liable.
4. If the giver is a family member of a person 4. If somebody pays the bill for his meal or
arrested and was prevailed upon to give so drinks, he is not liable for indirect bribery as he
that the case against the relative will not push did not accept any gift.
through, or will be down-graded, the demand 5. Receipt of cash given as ―share in winnings‖ or
and receipt of consideration is robbery. ―balato‖ are included.

5. If the giver committed a crime and it was the  The phrase ―by reason of his office‖ means the gift
officer who suggested the giving of money to would not have been given were it not for the fact
avoid arrest, it is bribery so long as the person that the receiver is a public officer. The officer
did so voluntarily but if he was forced to give, need not do any act as the gift is either for past
then it is robbery. Thus if the person was favors or to anticipate future favors, or simply to
unwilling to give but he pretended to give but ―impress‖ or earn the good will of the officer
reported instead to the authorities who set up  There is no attempted or frustrated indirect
an entrapment, the crime of the officer is bribery. If he does not accept the gifts, he does
attempted robbery not commit the crime. If he accepts the gifts, it is
consummated.
6. If the person did not commit a crime but the  Public officers receiving gifts and private persons
officer insist and pretend there was a crime giving gifts on any occasion, including Christmas,
and threatens to arrests unless money is are liable under PD 46
given, then the receipt thereof is robbery.  The criminal penalty or imprisonment is distinct
from the administrative penalty of suspension from
Bribery (210) Robbery (294) the service
When the victim has When the victim did
committed a crime not commit a crime Direct bribery Indirect bribery
and gives money/gift and he is not Officer agrees to Not necessary that the
to avoid arrest or intimidated with arrest perform or refrain officer do an act. It is
prosecution and/or prosecution to from doing an act. enough that there is
deprive him of his acceptance by reason
personal property of office.
Victim parts with his Victim is deprived of Public officer receives Same.
money or property his money or property gift.
voluntarily by force or There is agreement No such agreement
intimidation between the public exist. 19
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circumstances that will make the public officer
Article 211-A. Qualified Bribery liable for direct bribery or indirect bribery.

Concept: The crime committed by any public officer  It has only two stages: attempted if the gift, offer
who is entrusted with the law enforcement and he or promise was rejected and consummated if the
refrains from arresting or prosecuting an offender who same was accepted.
has committed a crime punishable by reclusion  This is in addition to his liability if the act done by
perpetua and/or death in consideration of any offer, the officer is a crime in which case he is a principal
promise, gift or present. by inducement.

Elements Laws Related To Crimes By Public Officers

1. Offender is a public officer entrusted with law I. R.A. 7080: Defining and Penalizing the Crime
enforcement; Known as Plunder
2. He refrains from arresting or prosecuting an
offender who has committed a crime punishable by 1. Plunder - a crime committed by any public
reclusion perpetua and/or death; officer, by himself , or in connivance with his
3. Offender refrains from arresting or prosecuting in family, relatives by affinity or consanguinity,
consideration of any offer, promise, gift, or business associates , subordinates or other
present. persons, by amassing, accumulating or
acquiring ill-gotten wealth in the aggregate
 The offenders are limited to officers entrusted with amount or total value of at least 50 million
law enforcement such as members of the regular pesos. (Sec 2)
law enforcement agencies, as well as those tasked
to enforce special laws, and prosecutors. This is 2. The accumulation must be through a
similar to prevarication under Article 208 but the combination or series of overt acts, a pattern
offense involved here which the officer refused to indicative of the over all unlawful scheme or
prosecute are graver being punished by reclusion conspiracy
perpetua or death
 Actual receipt of consideration is not necessary. Means or schemes to acquire ill-gotten
 The penalty for the officer is that for the offense wealth:
he did not prosecute. But if it was the officer who
solicited the gift, the penalty is death. HOWEVER, 1. Through misappropriation, conversion,
the guilt of the person who was not prosecuted misuse or malversation of public funds or
must first be proven. Thus, there must be first raids on the public treasury
conviction. 2. By receiving directly or indirectly, any
commission, gift, share, percentage or
Q: What crime was committed by a law enforcement any other form of pecuniary benefit from
agent who refused to arrest a rapist or murderer? any person and/or entity in connection
A: If it was because of a consideration the crime is with any government contract/project or
qualified bribery. If there was no consideration he is an by reason of his office/position
accessory to the crime. 3. By the illegal or fraudulent conveyance or
disposition of assets belonging to the
Q: Suppose it was a drug pusher who was refused to government
be arrested? 4. By obtaining , receiving or accepting,
A: Qualified bribery if there was a consideration. If directly or indirectly, any shares of stock,
there was none it should be Violation of Article 208 equity or any other form of interest or
because there are no accessories in the offense of drug participation including the promise of
pushing future employment in any business
enterprise or undertaking
Article 212. Corruption of Public Officials 5. By establishing agricultural, industrial or
commercial monopolies or other
Concept: This is the crime committed by the bribe combinations and/or implementing
giver, promissory or offeror. decrees and orders intended to benefit
particular persons or special interests
Elements 6. By taking undue advantage of official
position, authority, relationship,
1. Offender makes offers or promises or gives gifts or connection or influence to unjustly enrich
presents to a public officer; himself or themselves
2. The offers or promises are made or the gifts or
presents given to a public officer, under NOTE: These should be committed by a
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combination or through a series of acts.
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There should be at least two acts otherwise exempt services receiving compensation, even
the accused should be charged with the nominal from the government
particular crime committed and not with
plunder. A combination means at least C. There are eleven acts enumerated as
two acts of a different category while a constituting corrupt practices, some of which
series means at least two acts of the repeat provisions of the Revised Penal Code,
same category. (ESTRADA vs. which acts or omissions therefore remain still
SANDIGANBAYAN November 21, 2001) to be mala inse. Those which are not defined
in the Revised Penal Code are acts mala
3. The penalty is reclusion perpetua to death. prohibita .

4. For non-public officers their liability will depend These eleven acts include the following:
on their degree of participation and the a. Those which involve the receipt of
attendance of mitigating and aggravating material consideration
circumstances b. Those where, even if there was no
consideration, the public officer uses the
5. MITIGATING AND EXTENUATING ascendancy, influence or prestige of his
CIRCUMSTANCES shall be considered by the office to influence any course of action
courts in the imposition of penalty pertaining to the government either for
himself, a relative or influence ( Influence
6. Section 4. Rule of Evidence Peddling), or where the government
stands to be prejudiced
It is not necessary to prove each and every c. Acts constituting an improper exercise of
criminal act done. A pattern of overt or duties especially in the granting of permits
criminal acts indicative of the over-all unlawful and licenses
scheme or conspiracy shall be sufficient d. Acts by private individuals, especially
relatives of the officer or close associates
7. Section 6. Prescription of Crimes who take advantage of such relationship
or connection with any business in which
The crime punishable under this Act shall the public officer has to intervene
prescribe in 20 years. However, the right of e. Acts which are improper for an officer to
the State to recover properties unlawfully do such as non-payment of a debt
acquired by public officers from them or from
their nominees or transferees shall not be Section 3. Corrupt Practices of Public Officials
barred by prescription or laches or estoppel.
A. Persuading, inducing or influencing another
Plunder is a crime malum in se because the public official officer to perform an act
constitutive crimes are mala in se. The constituting a violation of rules and
elements of mens rea must be proven in a regulations duly promulgated by
prosecution for plunder. competent authority or an offense in
connection with the official duties of the
II. R.A 3019 or The Anti Graft and Corrupt latter, or allowing himself to be
Practices Act persuaded, induced, or influenced to
commit such violation or offense.
A. Introduction: This was enacted to fortify the
principle that public office is a public trust. B. Directly or indirectly requesting or receiving
Also the provisions of the Revised Penal Code any gift , present, share, percentage, or
is inadequate to cover all situations and acts benefit, for himself or for any other
whereby a public officer performs an act person, in connection with any other
inimical to public service. Some of the salient contract or transaction between the
features are summarized below. government and any other party, wherein
the public officer in his official capacity
B. Section 2.Definition of Terms has to intervene under the law.

Government – the national government , the C. Directly or indirectly requesting or receiving

local government, the GOCC‘s & all other any gift , present or other pecuniary or
instrumentalities or agencies of the material benefit, for himself or for
government another, from any person for whom the
public officer, in any manner or capacity
Public Officer- elective & appointive officials has secured or obtained, or will secure or
& employees, permanent or temporary, obtain, any government permit or license,
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whether in the classified or unclassified or in consideration for the help given or to be
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given, without prejudice to Sec. 13 of this transactions or acts by the board, panel or
act. group to which they belong.

D. Accepting or having any member of his J. Knowingly approving or granting any

family accept employment in a private license, permit, privilege or benefit in
enterprise which has pending official favor of any person not qualified for or not
business with him during the pendency legally entitled to such license, permit,
thereof or within 1 year after his privilege or advantage, or of a mere
termination. representative or dummy of one who is
not qualified or entitled.
E. Causing any undue injury to any party,
including the government, or giving any K. Divulging valuable information of a
private party any unwarranted benefits, confidential character, acquired by his
advantage or preference in the discharge office or by him on account of his official
of his administrative or judicial functions position to unauthorized persons , or
through manifest partiality, evident bad releasing such information in advance of
faith or gross inexcusable negligence. its authorized date.
This provision shall apply to officers and
employees of offices or Government
corporations charged with the grant of D. Periodic Submission of a Statement of Assets
licenses or permits or other concessions. and Liabilities

F. Neglecting or refusing, after due demand or E. Defines Unexplained wealth as property

request, without sufficient justification, to manifestly out of proportion to the income of a
act within reasonable time on any matter public officer.
pending before him for the purpose of
obtaining, directly or indirectly, from any 1. Possession of unexplained wealth is a
person interested in the matter some ground for removal or dismissal
pecuniary or material benefit or 2. It is a prima facie evidence of corruption
advantage, or for the purpose of favoring 3. Prosecution for unexplained wealth is an
his own interest or giving undue exception to the Secrecy of Bank Deposits
advantage in favor of or discriminating
against any other interested party. F. Prohobotion on Private Individuals and
Relatives; Exceptions
G. Entering on behalf of the Government,
into any contract or transaction manifestly Section 4. Prohibition on Private individuals.
and grossly disadvantageous to the same,
whether or not the public officer profited A. Taking advantage of family or personal
or will profit thereby. close relation with public official is punished.

H. Directly or indirectly having financial or B. Knowingly inducing or causing any public

pecuniary interest in any business, official to commit any of the offenses defined
contract or transaction in connection with in Section 3.
which he intervenes or takes part in his
official capacity, or in which he is Section 5. Prohibition on certain relatives
prohibited by the Constitution or by law
from having any interest. The spouse or any relative, by
consanguinity, within the 3rd civil degree, of
I. Directly or indirectly becoming interested, the President, the Vice-President, Senate
for personal gain, or having material President, or the Speaker of the House of
interest in any transaction or act requiring Representatives is prohibited to intervene
the approval of a board, panel or group directly or indirectly, in any business,
which he is a member; and which transaction, contract or application with the
exercises discretion in such approval, even government.
if he votes against the same or does not
participate in the action of the board, EXCEPTIONS TO THE PROVISIONS:
committee, panel or group. 1. Any person who prior to the assumption of
office of any of those officials to whom he is
Interest for personal gain shall be related, has been already dealing with the
presumed against those public officers government along the same line of business,
responsible for the approval of manifestly nor to any transaction, contract or application
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unlawful, inequitable , or irregular
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already existing or pending at the time of such Unsolicited gifts or presents of small or
assumption of public office insignificant value offered or given as a mere
ordinary token of gratitude of friendship
2. Any application filed by him, the approval of according to local custom or usage
which is not discretionary on the part of the
official or officials concerned but depends L. Section 13 of the law Provides for Suspension
upon compliance with the requisites provided Pendente Lite of the accused public officer
by law, or rules or regulations issued pursuant
to law. 1. After an Information is filed in Court for:
(a) Violation of R.A. 3019 or (b) under
3. Any act lawfully performed in an official Title 7 of the RPC i.e. Crimes Committed
capacity or in the exercise of a profession by Public Officers or (c) for any offense
involving fraud upon government or public
G. Section 6. Prohibition on Members of Congress funds, the officer shall suspended from
office.
Members of Congress during their term are
prohibited to acquire or receive any personal 2. The suspension applies to any office which
pecuniary interest in any specific business the officer charged might be holding and
enterprise which will be directly & particularly not necessarily the particular office under
favored or benefited by any law or resolution which he was charged or under which the
authored by them act was committed. (Sandiganbayan vs
Defensor)
The prohibition shall also apply to any public
officer who recommended the initiation in 3. The crimes maybe simple or complex with
Congress of the enactment or adoption of any another, whether attempted or frustrated
law or resolution and acquires or receives any and even if the officer‘s participation is as
such interest during his incumbency an accomplice or accessory only.

The member of Congress or other public 4. The period was formerly for the whole
officer, who, having such interest prior to the duration of the trial but the period has
approval of a law or resolution authored or been fixed to be the same period as that
recommended by him, continues for thirty provided for under the Civil Service Law
days after such approval to retain his interest which is 90 days and which likewise is the
also violates this section. period provided for under Section 52 of
the Administrative Code fo1987.
H. Section 8. Prima facie evidence of and
dismissal due to unexplained wealth. Example: In Nicart vs. Sandiganbayan (
495 SCRA 73) a Mayor was charged for
A public official who has been found to have Malversation before the Sandiganbayan
acquired during his incumbency, whether in and was imposed a 90 day preventive
his name or the name of other persons, an suspension. He argued that malversation
amount of property and/or money manifestly is not covered by the Anti Graft law and
out of proportion to his salary and to his lawful he should not be suspended and even
income (RA 1319) – GROUND FOR then the period should be only 60 days
FORFEITURE OF UNEXPALINED WEALTH pursuant to section 63 of the Local
Government Code. HELD: Malversation is
I. Section 11.Prescription of offenses an offense involving fraud against the
15 YEARS – prescriptive period of all offenses government funds and is clearly included
under the Act among the crimes covered by RA 3019.
Section 13 of said law provides a
J. Section 12. Termination of office suspension for which the period is 90 days
pursuant to existing jurisprudence, notably
NO PUBLIC OFFICER IS ALLOWED TO Segovia vs. Sandiganbayan (288 SCRA
RESIGN OR RETIRE: 328, March 27, 1998)
1. Pending investigation, criminal or
administrative or Note that under the PNP Law ( RA 6975)
2. Pending a prosecution against him when a PNP member is charged with a
3. For any offense under the Act or under grave offense where the penalty
the provisions of the RPC on Bribery prescribed is 6 years and 1 day or more,
he shall be suspended from office to last
K. Section. 14. Exception until the termination of the case (Himagan
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vs. PP, 237 SCRA 538)
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The prohibition giving and receiving gifts given by
5. The Suspension is Mandatory But Not reason of official position, regardless of whether or
Automatic not the same is for past or future favors.

(a). Mandatory in that the officer must be The giving of parties by reason of the promotion of
suspended whatever be his position. a public official is considered a crime even though
(b). However the suspension is not it may call for a celebration. The giving of a party
automatic because before the Court ( is not limited to the public officer only but also to
note: only the Court may order the any member of his family.
suspension) there must first be a
Motion to Suspend and if the officer IV. Presidential Decree No. 749
does not voluntarily place himself
under suspension but contests the The decree grants immunity from prosecution to a
Motion, then there must be ―Pre private person or public officer who shall
Suspension Hearing ― to determine voluntarily give information and testify in a case of
the following: (i) The validity of the bribery or in a case involving a violation of the
Information (ii) If the accused was Anti-graft and Corrupt Practices Act.
afforded the right to a Preliminary
Investigation (iii) If there is a ground It provides immunity to the bribe-giver provided he
to Quash the Information (iv) If the does two things:
offense charged is a Violation of Title
7 of the Revised penal Code or is (1) He voluntarily discloses the transaction he had
covered by the AGCPA. It is only then with the public officer constituting direct or
that the Court issues an Order placing indirect bribery, or any other corrupt
the accused under suspension transaction;
(c). However, if the accused had ample
opportunity to be heard on the (2) He must willingly testify against the public
Prosecution‘s Motion fro Suspension officer involved in the case to be filed against
Pendenti Lite and were allowed to file the latter.
their comment or opposition thereto,
and agreed to submit the Motion for Before the bribe-giver may be dropped from the
Resolution upon submission of their information, he has to be charged first with the
comment/opposition, there was no receiver. Before trial, prosecutor may move for
more need to set the motion to dropping bribe-giver from information and be
Suspend for hearing on a specific time granted immunity. But first, five conditions have
and date. (Bedrey vs. Sandiganbayan, to be met:
477 SCRA 286)
(1) Information must refer to consummated
M. Effect of Conviction - Loss of retirement or bribery;
gratuity benefits. In case of acquittal-
reinstatement plus payment of back salaries (2) Information is necessary for the proper
unless in the meantime the officer has been conviction of the public officer involved;
administratively
(3) That the information or testimony to be given
N. A public officer maybe charged under R.A. 3019 is not yet in the possession of the government
and under the Revised Penal Code for the or known to the government;
same offense (Ramiscal vs. Sandiganbayan
499 SCRA 75) (4) That the information can be corroborated in its
material points;
O. Jurisdiction over the offense is with the
Sandiganbayan for those public officers (5) That the information has not been convicted
occupying a salary grade of 26 or higher previously for any crime involving moral
turpitude.
III. Presidential Decree No. 46
These conditions are analogous to the conditions
Presidential Decree No. 46 prohibits giving and under the State Witness Rule under Criminal
acceptance of gifts by a public officer or to a public Procedure.
officer, even during anniversary, or when there is
an occasion like Christmas, New Year, or any gift- The immunity granted the bribe-giver is limited
giving anniversary. The Presidential Decree only to the illegal transaction where the informant
punishes both receiver and giver. gave voluntarily the testimony. If there were other
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transactions where the informant also participated,
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he is not immune from prosecution. The immunity authorized by law, in collection of taxes, licenses,
in one transaction does not extend to other fees, and other imposts;
transactions. 3. Failing voluntarily to issue a receipt, as provided by
law, for any sum of money collected by him
The immunity attaches only if the information officially, in the collection of taxes, licenses, fees,
given turns out to be true and correct. If the same and other imposts;
is false, the public officer may even file criminal 4. Collecting or receiving, directly or indirectly, by
and civil actions against the informant for perjury way of payment or otherwise, things or objects of
and the immunity under the decree will not protect a nature different from that provided by law, in the
him. collection of taxes, licenses, fees, and other
imposts.
V. Republic Act No. 1379 (Forfeiture of Ill-gotten
Wealth) Fraud under Paragraph 1: punishes any public
officer who in his official capacity enters into an
Correlate with RA 1379 -- properly under Remedial agreement or scheme to defraud the government. It
Law. This provides the procedure for forfeiture of does not matter that the government was not damaged
the ill-gotten wealth in violation of the Anti-Graft as mere intent to defraud consummates the crime.
and Corrupt Practices Act. The proceedings are
civil and not criminal in nature. Elements of frauds against public treasury under
paragraph 1
Any taxpayer having knowledge that a public
officer has amassed wealth out of proportion to 1. Offender is a public officer;
this legitimate income may file a complaint with 2. He has taken advantage of his office, that is, he
the prosecutor‘s office of the place where the intervened in the transaction in his official
public officer resides or holds office. The capacity;
prosecutor conducts a preliminary investigation 3. He entered into an agreement with any interested
just like in a criminal case and he will forward his party or speculator or made use of any other
findings to the office of the Solicitor General. The scheme with regard to furnishing supplies, the
Solicitor General will determine whether there is making of contracts, or the adjustment or
reasonable ground to believe that the respondent settlement of accounts relating to public property
has accumulated an unexplained wealth. or funds;
4. He had intent to defraud the government.
If the Solicitor General finds probable cause, he
would file a petition requesting the court to issue a  Usually, when in connivance with suppliers, the
writ commanding the respondent to show cause government is made to pay for more than what it
why the ill-gotten wealth described in the petition has received; or there is overpricing; or paying for
should not be forfeited in favor of the government. poor quality of articles or supplies; or for double
This is covered by the Rules on Civil Procedure. payment; or paying for ―ghost deliveries‖
The respondent is given 15 days to answer the  Also making the government refund more than
petition. Thereafter trial would proceed. Judgment what it has to refund
is rendered and appeal is just like in a civil case.  There must however be no fixed amount which
Remember that this is not a criminal proceeding. was set aside or appropriated before hand to be
The basic difference is that the preliminary spend or to cover the purchase. Thus if the sum of
investigation is conducted by the prosecutor. P100,000.00 was set aside to purchase five
computers, even if said computers are of poor
Article 213. Frauds against the Public Treasury quality and are worth only P75,000.00, there is no
and Similar Offenses Fraud against the treasury. But if the officer
presents a bill of P100,000.00 to pay for five
Concept: The violations punished are equivalent to computers and which amount was given, when in
cheating the public treasury. There are two kinds of truth the computers are worth only P75,000.00,
frauds punished. then this crime is committed.

Acts Punished Illegal Exaction Under paragraph 2

1. Entering into an agreement with any interested
party or speculator or making use of any other Elements:
scheme, to defraud the government, in dealing 1. The offender is a public officer entrusted with the
with any person with regard to furnishing supplies, collection of taxes, licenses, fees and other
the making of contracts, or the adjustment or imposts.
settlement of accounts relating to public property
or funds; He is thus an accountable public officer If
2. Demanding, directly or indirectly, the payment otherwise, the crime would be estafa. However
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of sums different from or larger than those officers under the BIR and BoC are covered by the
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NIRC and Customs Code or the Administrative
Code. Examples:The Judge entices an accused to hand to him
money which the Judge will post as cash bond but he
2. He is guilty of any of the following acts or spends it. The head of Office, who collects
omissions: contributions from his employees to purchase for
a) Demanding , directly or indirectly, the payment supplies, but spends the money for himself, if found
of sums different from or larger than those guilty, would be imposed this additional penalty.
authorized by law; or
Article 215. Prohibited Transactions
(i). Here mere demand is sufficient even if the
payer refused to come across. If he Concept: This prohibits any appointive official who
pockets the excess he commits estafa during his incumbency from becoming interested in any
through illegal exaction transaction of exchange or speculation within his
(ii). Suppose the payor allows him to keep the territorial jurisdiction. This is to prevent him form using
change and the officer did not turn it over his influence in his favor
to the government, he commits
malversation. It is to the government that Elements
the change must go as an accretion of the
amount due ( Principle of Accretion) . 1. Offender is an appointive public officer;
(iii). Suppose the officer demands P1,000.00 2. He becomes interested, directly or indirectly, in any
when the amount due is only P700.00. He transaction of exchange or speculation;
spent the entire P1,000.00. He is guilty of 3. The transaction takes place within the territory
illegal exaction (for demanding a different subject to his jurisdiction;
amount) Estafa for spending the excess of 4. He becomes interested in the transaction during
P300.00 and malversation as to the his incumbency.
amount of P7000.00 which is government
funds Example: A judge is not to participate in an execution
sale.
b) Failing voluntarily to issue a receipt , as
provided by law , for any sum of money Article 216. Possession of Prohibited Interest By
collected by him officially; or A Public Officer

The crime is committed if what are issued are Concept: This punishes the act of becoming interested
only provisional receipt or participating by a public officer virtute officii in
any contract in which it is his official duty to intervene.
c) Collecting or receiving, directly or indirectly, by Actual fraud is not necessary but the act is punished to
way of payment or otherwise, things or prevent the possibility that the officer may commit
objects of a nature different from that fraud or places his interest over that of the
provided by law government.

Payments are to be in the form of cash or the Hence if he participated in his private capacity he is not
payor‘s personal check. It does not matter that liable. Example: The Director of the DSWD assumed
the object has a higher value than what is due. the mortgage executed in favor of a creditor. He did so
as a private businessman. He is not liable.
 There is no need for misappropriation of funds or Persons liable
intent to defraud because the essence of the crime
is the improper or irregular manner of the 1. Public officer who, directly or indirectly, became
collection. interested in any contracts or business in which it
was his official duty to intervene;
Article 214. Other Frauds 2. Experts, arbitrators, and private accountants who,
in like manner, took part in any contract or
Concept: This article does not punish any offense. transaction connected with the estate or property
What is provided is the additional penalty of special in the appraisal, distribution or adjudication of
disqualification upon a public officer who commits which they had acted;
estafa by taking advantage of his official position. 3. Guardians and executors with respect to the
property belonging to their wards or the estate.
Elements
Example: The City is need of a building to rent. The
1. Offender is a public officer; mayor approved the contract of lease with the ABC
2. He takes advantage of his official position; corporation, owner of the building, but he is a director
3. He commits any of the frauds or deceits of said company.
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enumerated in Article 315 to 318.
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Section 14, Article VI of the Constitution 4. He appropriated, took, misappropriated or
consented or, through abandonment or negligence,
No Senator or Member of the House of Representatives permitted another person to take them.
may personally appear as counsel before any court of
justice or before the Electoral Tribunals, or quasi- By whom committed/ Persons Liable:
judicial and other administrative bodies. Neither shall
he, directly or indirectly, be interested financially in any 1. Primarily only by an accountable public officer: one
contract with, or in any franchise or special privilege who has charge of public funds or properties and is
granted by the Government or any subdivision, agency answerable therefore. If he takes property over
or instrumentality thereof, including any government- which another officer is accountable, he is guilty of
owned or controlled corporation or its subsidiary, theft
during his term of office. He shall not intervene in any
matter before any office of the government for his a). By reason of the functions of his office in that
pecuniary benefit or where he may be called upon to his primary functions pertain to the receipt,
act on account of his office. care and custody of funds or property.
Examples: treasurers, cashiers, disbursing
Section 13, Article VII of the Constitution officers; Property Custodians, Clerks of Court,
BIR/Customs Collectors; Evidence Custodians.
The President, Vice-President, the Members of the Also a policeman who confiscates contrabands
Cabinet and their deputies or assistant shall not, unless or prohibited articles from persons arrested.
otherwise provided in this Constitution, hold any other Policemen in custody of articles seized by
office or employment during their tenure. They shall virtue of a search warrant
not, during said tenure, directly or indirectly, practice
any other profession, participate in any business, or be b). By reason of special designation or by reason
financially interested in any contract with, or in any of the fact that public funds or properties are
franchise, or special privilege granted by the entrusted to him by his superior. Example: an
Government or any subdivision, agency or employee is tasked to get the salaries of the
instrumentality thereof, including government-owned employees; or supplies are entrusted to a
or controlled corporations or their subsidiaries. They teacher for delivery to the school; or medical
shall strictly avoid conflict of interest in the conduct of supplies are sent to a municipality through the
their office. councilor.

2. By a private person :
Section 2, Article IX-A of the Constitution
a). Through conspiracy with the public officer
No member of a Constitutional Commission shall,
during his tenure, hold any office or employment. b). As an accomplice or accessory
Neither shall he engage in the practice of any
profession or in the active management or control of c). Under Article 222 when he has charge of
any business which in any way may be affected by the public funds or property or is the
functions of his office, nor shall he be financially depository or administrator of funds
interested, directly or indirectly, in any contract with, or seized, attached or deposited by public
in any franchise or privilege granted by the authority
government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or (i). Forest Rangers seized several logs. The
controlled corporations or their subsidiaries. DENR Director deposited them with Mr. X
Malversation of Public Funds (Embezzlement) whom he also appointed to be the
custodian until the DENR can get trucks to
Classification: transport the logs. If Mr. X uses the logs
(1) Ordinary and Technical as firewood he is liable f or malversation
(2) Intentional or culpable (ii). The Sheriff deposited several household
items which he attached from the
Article 217. Malversation of Public Funds or defendant. These were asked to be safe
Property – Presumption of Malversation kept in the garage of Y who consented to
be the custodian. The articles were stolen
Elements because Y went on a vacation without
taking measures against theft. He is liable.
1. Offender is a public officer;
2. He had the custody or control of funds or property Property Subject of the crime
by reason of the duties of his office; 1. Public properties
3. Those funds or property were public funds or
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property for which he was accountable;
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a). Strictly public properties – those owned by the
government or by the local government units Acts Punished: How Committed
such as office equipments and supplies; guns
and bullets issued to the AFP or PNP 1. Intentional Acts:
members; vehicles and modes of
transportations issued to a public office; (a). By appropriating: when the officer himself
money paid or received as taxes, fines, takes the property for his own use or that of
payments, donations, or income or cash in the his family or that of a third person
public coffers.
(i). Thus loose changes taken by the officer
(i). thus a policeman who goes on AWOL constitute malversation as the loose
without returning his firearm is liable for changes properly belong to the
malversation government.
(ii). a driver who sells off the gasoline of the
vehicle assigned to him as public transport (ii). Likewise, a collector who brings home
is guilty of malversation funds or property and forgot to bring them
(iii). the pharmacists of the government to his office, and is therefore found short
hospital who secretly sells the medicines by said amount, is guilty of malversation.
commits this crime
(b). By misappropriating: the officer uses them
2. Private properties: for a different purpose even if a public purpose
but is not authorized to do so
a). If held in trust by a public office i.e. he has the
duty to account of the property, often referred (i). Thus a cashier who uses his collections to
to as ―Trust Funds or Trust Properties‖ change the personal checks on employees,
even at a discount, and even if the checks
(i). Money deposited by a party in court as are good, is guilty of malversation. During
cash bail bonds or redemption price the period of time the check is undergoing
(ii). Private property deposited in court clearing by the back, the government is
provided they have not been marked yet already deprived of the use of the funds.
as evidence; or when they are ordered o
be returned to the owner as evidence 2. By abandonment or through negligence
(iii). Property under attachment (culpable malversation) ( i.e. consenting, or
(iv). Proceeds of a sweepstake ticket entrusted through abandonment or negligence, permitting
to a sales agent any other person to take such public funds or
(v). Articles the possession of which is property)
prohibited, except for dangerous drugs, or
the effects or instruments of a crime in the (a). The custodian is expected to exercise utmost
possession of a policeman diligence and care to prevent the public
funds/properties under his custody from being
b). Property in custody of a public office for a lost, destroyed, damaged, either by action of
public purpose i.e private properties impressed nature or by the acts of people. When these
with public character eventualities occur due to his failure to take
(i) Example: The sheriff who conducted an precautions or exercise care, then he becomes
execution sale spent part of the money liable.
realized from the sale instead of turning it (b). If the funds were lost or destroyed the officer
over to the plaintiff. He is liable for must make a prompt report and prove the loss
malversation because the proceeds are or destruction was not due to his fault or
impressed with the character of public negligence
funds. (c). Thus the officer is liable even if it was a third
(ii). Example: Blood kept by the Phil. National person who took and appropriated the
Red Cross property

c). Private property considered as public by reason 3. Being otherwise guilty of the misappropriation or
of the (i). Principle of Co-mingling in that all malversation of such funds or property.
funds commingled with public funds or found
in public vaults, are presumed to be public Penalty
funds/property and (ii) The Principle of
Accretion The penalty depends on the amount of the fund or
property involved
d). Private properties which were confiscated or
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seized even if deposited with a private person
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1. The Penalty is the same whether the malversation is
intentional or through negligence. This is the 1. The falsification must not be to hide the
exception to the rule that the penalty for a crime is malversation else it is a separate offense
lower if committed through negligence
2. As to the liability of heads of office who sign or
2.The accused may be convicted of for culpable approve vouchers or documents containing
malversation under an Information which charges falsifies, see Arias and Rodis doctrine
intentional malversation without need of amending
the original Information. This is because culpable Distinguished from Estafa:
malversation is included in intentional malversation
and because the penalty is the same whether it 1.As to the nature of the property involved: in estafa
was committed intentionally or through negligence. only private properties are involved.
( PP. vs. Ting Lan 475 SCRA 248)
2.As to the character of the accused: in malversation
Presumption of Malversation he must be the custodian or is accountable over
the property involved.
When there is a formal demand upon the accountable
officer to produce funds or properties in his custody 3. As to the need for a prior demand: malversation
and he fails to produce them, his failure to do so shall does not require a prior demand
be prima facie evidence that he put the missing funds
to his personal use. 4.As to the requirement of damage: there need not be
damage to the government in malversation
1. For purposes of conviction, it is not necessary that
there be direct proof that the officer used the Article 220. Illegal use of public funds or
funds to his personal use. property (Technical Malversation)

2. The presumption applies only if (i) there is proof of Concept: This is often referred to as ―Juggling of
shortage and the amount which is claimed to be Funds‖ or ―Realignment of Funds‖. This is the crime
missing is certain, and definite and after an audit committed by a public officer who used or applied
which is thorough, complete to the last detail and funds earmarked or appropriated for a specific public
reliable ( Dumagat vs. Sandiganbayan, 160 SCRA purpose, for another public purpose.
483) and (ii) the failure to produce is unexplained.
Elements
3. The presumption is rebuttable hence if the accused
was able to prove the missing funds were not used 1. Offender is a public officer;
by him personally, as when the missing funds were 2. There are public funds or property under his
given to employees as ‖vales‖, the burden is upon administration;
the prosecution to prove the misappropriation 3. Such fund or property were appropriated by law or
ordinance;
Effect of Restitution or Replacement of the 4. He applies such public fund or property to any
Missing Fund/Property public use other than for which it was appropriated
for.
Note that the accused incurs a criminal liability and is
also civilly liable to the government for the missing  The funds involved should have been reserved by
fund or property, thus: an appropriation ordinance for a specific public
purpose.
1. If made before the shortage is recorded: there is  If the fund were not yet earmarked for a specific
no criminal liability because officially there is as yet public purpose, such as the general fund, the crime
no shortage is ordinary malversation
 If the funds earmarked for a public purpose were
2. If made Upon discovery and recording: the criminal used for a private purpose, the crime is ordinary
liability remains but this may be considered as malversation
mitigating but the civil liability may be extinguished  It is immaterial that the other pubic use is more
beneficial to the public.
3. If after the lapse if time: the replacement or  The reason is that no public fund or property shall
restitution has not effect on the criminal liability be spend except pursuant to an appropriation or
what so ever purpose specified by law

The return of the funds malversed is only Illegal use of public funds or property vs.
mitigating, not exempting. malversation under Art. 217
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If there is falsification:
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ILLEGAL USE OF MALVERSATION 2. Refusing to make delivery by a public officer who
PUBLIC FUNDS has been ordered by competent authority to
OR PROPERTY deliver any property in his custody or under his
The offenders are accountable public officers in administration.
both crimes.
The offender does not The offender in certain Elements of failure to make payment
derive any personal cases profits from the
gain or profit proceeds of the crime. 1. Public officer has government funds in his
The public fund or The public fund or possession;
property is applied to property is applied to the 2. He is under obligation to make payment from such
another public use personal use and benefit funds;
of the offender or of 3. He fails to make the payment maliciously.
another person.
 The refusal is malicious and must have resulted in
damage to public interest
Other Offenses Related to Public Funds  Example: (i). The Treasurer refuses to give the
salary of an employee out of spite; (ii) or refuses
Article 218. Failure of Accountable Officer to to give the payment for the purchase of
Render Accounts equipments on the ground the equipments are
unnecessary (ii) Property Custodian who refuses to
Elements deliver a type writer to a secretary because the
secretary is inept at typing
1. Offender is public officer, whether in the service or
separated therefrom by resignation or any other Article 222. Persons Liable Under the Preceding
cause; Provisions
2. He is an accountable officer for public funds or
property; Private individuals who may be liable under Art.
3. He is required by law or regulation to render 217-221:
account to the Commission on Audit, or to a 1. Private individuals who, in any capacity
provincial auditor; whatsoever, have charge of any national,
4. He fails to do so for a period of two months after provincial or municipal funds, revenue or property
such accounts should be rendered. 2. Administrator, depository of funds or property
attached, seized, or deposited by public authority
 The accused is an accountable officer and this even if such property belongs to a private
includes those who may have already been individual
separated from the service
 This is a crime by omission.
INFIDELITIES BY A PUBLIC OFFICER
Article 219. Failure of A Responsible Public
Officer to Render Accounts before Leaving the Concept: These offenses involve unfaithfulness in the
Country performance of duties amounting to a violation of the
public trust and confidence reposed in the officer.
Elements
Kinds:
1. Offender is a public officer;
2. He is an accountable officer for public funds or (1) In the Custody of Prisoners,
property; (2) In the Custody of Documents, and
3. He unlawfully leaves or attempts to leave the (3) In the keeping of Secrets
Philippine Islands without securing a certificate
from the Commission on Audit showing that his Infidelity in the Custody of Prisoners (Articles
accounts have been finally settled (certificate of 223 t0 225)
clearance).
Concept: The crime refers to the act of a custodian of
a prisoner in allowing or permitting the prisoner to
Article 221. Failure to Make Delivery of Public escape. This may be intentionally or by his negligence
Funds of Property
Basis of the Penalty:
Acts punished
(i) The public or private character of the person
1. Failing to make payment by a public officer who is (ii) The status of the prisoner who escaped and
under obligation to make such payment from (iii) the circumstances under which the escape was
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government funds in his possession; made
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3. Persons placed in jail only for ―safe keeping
Persons liable: purposes‖, such as drunks, are not prisoners.

1. A Public officer whose function or duty consists Meaning of “Escape”

primarily of taking custody of prisoners such as
personnel of the BJMP. At the time of the escape, 1. The act of running away or permitting the prisoner
the personnel must be on duty otherwise his to leave
liability is for Delivering Prisoners from Jail 2. The giving of preferential or special treatment or
unjustifiable leniency to enable him to avoid the
2. A Private person pursuant to Article 225 to whom rigors resulting from his imprisonment. Examples :
the conveyance or custody of a prisoner person or (a) As allowing the prisoner to eat or sleep in the
person under arrest was made. house of the guard or warden (b). Allowing him to
repair his cell and convert it into a luxurious room
a). With respect to public officials, the person who
escaped must be a prisoner where as in Kinds of Infidelity
infidelity by a private person, the individual
may simply be a ―person in arrest‖ i.e one who 1. Article 223. Conniving with or Consenting to
has been lawfully arrested either with or Evasion
without a warrant
Elements
b). If he lets go the prisoner due to a
consideration he is liable also for bribery 1. Offender is a public officer;
2. He had in his custody or charge a prisoner,
c). Examples: (i) The escort handcuffed his either detention prisoner or prisoner by final
prisoner to a jeepney asking the driver to judgment;
watch over the prisoner because the escort 3. Such prisoner escaped from his custody;
went to help a blind man cross the street. The 4. He was in connivance with the prisoner in the
driver removed the handcuffs when the wife latter‘s escape.
of the prisoner paid him. He is liable for
infidelity and bribery (ii) A policeman arrested Classes of prisoners involved
a robber whom he entrusted to X as the
policeman still had to chase the other robbers. 1. If the fugitive has been sentenced by final
X let the robber go. X committed infidelity judgment to any penalty;
2. If the fugitive is held only as detention
Article 225. Escape of Prisoner under the prisoner for any crime or violation of law or
Custody of a Person not a Public Officer municipal ordinance.

Elements  This is committed by intentionally allowing a

prisoner to escape either by active
1. Offender is a private person; participation, such as providing him with the
2. The conveyance or custody of a prisoner or person means to escape or simply letting him go, or
under arrest is confided to him; by doing nothing to prevent his escape
3. The prisoner or person under arrest escapes;  If the custodian was bribed, there are two
4. Offender consents to the escape, or that the escape separate offenses
takes place through his negligence.
2. Article 224. Evasion through Negligence
Meaning of Prisoner: The term prisoner refers to:
Elements
1. Prisoner by final judgment or mere detention
prisoner 1. Offender is a public officer;
2. He is charged with the conveyance or custody
2. As to persons ―under arrest‖ they are not yet of a prisoner or prisoner by final judgment;
prisoners until they have already been ―booked‖ i.e 3. Such prisoner escapes through negligence.
fingerprinted, photographed, and placed in the
gaol. This is true even if they already are in the Includes:
police station and detained in the interrogation
room. However if they were entrusted to private a). Failure to take precautionary measures to
persons who let them escape, infidelity is prevent the escape such as by not checking on
committed. Art 225 is not applicable if a private whether the facilities permits a escape; not
person was the one who made the arrest and he checking on visitors who may bring in tools
consented to the escape of the person arrested. with which to escape; 20
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b). Becoming too familiar and friendly with the (b). or officers who are specially entrusted by their
prisoners resulting to decrease in vigilance superior officers or by competent authority,
c). Laxity in escorting the prisoner or permitting with the care and custody of certain
him to go to places where he is not supposed documents even if their primary functions do
to be brought, such as a restaurant not pertain to the keeping of documents
d) There is no distinction between negligence
which results merely to an administrative Note: If the officer is not the custodian the crime is
liability and that which amounts to a willful different i.e theft if he abstracts or takes the
non-performance of duty documents; malicious mischief or estafa if he
destroys or conceals
 The fact that the public officer recaptured the
prisoner who had escaped from his custody 2. Private persons who conspire or who participate as
does not afford complete exculpation. an accomplice or accessory

Liability of escaping prisoner: Meaning of Document:

1. If the fugitive is serving sentence by reason of
final judgment, he is liable for evasion of the They refer to written instruments which maybe subject
service of sentence under Art. 157. to the crime of falsification
2. If the fugitive is only a detention prisoner, he
does not incur criminal liability. 1. Those which are purely public or official documents
such as records of birth, titles to land; records of
Q: If a prisoner escapes with the assistance of court cases; official communications; payrolls, time
another, what are the respective criminal liabilities records
of: (a) the prisoner (b) the person who helped him
escape? 2. Commercial Papers such as notes, checks, money
bills

Infidelity in the Custody of Documents 3. Private documents entrusted to public officials by

reason of their office as for example: (a). Letters
Kinds: sent through the mail (b). But not packages,
1. Through removal, concealment or destruction(Art. pamphlets, books, periodicals or parcel sent
226) though the mail
2. By Breaking the seal (Art. 227)
3. By opening of closed documents ( Art. 228) When is the crime malversation and when it is
infidelity:
Article 226. Removal, Concealment, or
Destruction of Documents a). When money, objects, or articles are in the
possession of an accountable officer, any act of
Elements appropriation/misappropriation or loss or
destruction will constitute malversation.
1. Offender is a public officer;
2. He abstracts, destroys or conceals a document b). But when these money, articles or objects had
or papers; already been marked in court as Exhibits, they
3. Said document or papers should have been ceased to be properties and become documents (
entrusted to such public officer by reason of his note that they are referred to as documentary
office; exhibits) so that their appropriation,
4. Damage, whether serious or not, to a third party misappropriation or loss, constitutes infidelity in
or to the public interest has been caused. the custody of documents.

Persons principally liable: c). But when the trial is over and these articles are
1. Public officers ordered to be returned to their owners/possessors,
such as in crimes against property, they revert to
(a) Those who are officially entrusted with the being properties. Hence any act of
custody of documents it being their function to appropriation/misappropriation will be
take care of documents , such as: malversation.
a). The Clerk of Court as regards the records
of cases Acts Punished:
b). The Post Master as to mail matters
c). The Local Civil Registrar 1. By abstracting or removal:
d). The Register of Deeds or The Assessor
e). The Election Registrar  the crime is consummated the moment the
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document or paper is removed or taken out
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from its usual place in the office. It need not gist is the fact of breaking the seal even if the contents
be brought out from the building such as when are not tampered with.
it is transferred to another room or place
where it is not supposed to be kept Elements
 The removal must be for an illicit purpose such
as to tamper with it, to profit from it or even 1. Offender is a public officer;
to keep it away from the eyes or knowledge of 2. He is charged with the custody of papers or
the public, or to show it to the media property;
 Hence there is no infidelity if the removal is to 3. These papers or property are sealed by proper
safe keep the document or to protect it form authority;
loss or destruction 4. He breaks the seal or permits them to be broken.
 Examples of removal:
 Example: Destroying the seal placed on ballot
(i). When the Postmaster opens a letter and Boxes
takes the money inside or the letter for  Damage or intent to damage is not necessary.
transmission contains Postal Money Orders
which he removes an encashed. But if Article 228. Opening of Closed Documents
they are the mail/letter carriers who take
the money, the crime is qualified theft Concept: The crime committed by a public officer who
has custody of closed documents, papers or objects,
(ii). But when he received the money order who opens or permits to be opened the closed papers,
itself - not the letter, which he then signed documents or objects without any proper authority to
as payee, collected and spent the amount, do so.
he is guilty of malversation through
falsification. Elements

(iii). When the records officer transfers the 1. Offender is a public officer;
folder of a case from the records section 2. Any closed papers, documents, or object are
to the library and it can not be located entrusted to his custody;
when a party comes to xerox copies 3. He opens or permits to be opened said closed
papers, documents or objects;
(iii) A secretary who brings home the folder or 4. He does not have proper authority.
record in order to study it is not liable as
the purpose is not illicit  Examples: (i). Closed envelopes containing election
returns (ii). Communications in closed envelopes
(iv) Misdelivery of mail matters to third or folders hand carried by personnel officers to
persons is removal Manila.

 Actual damage to the public is not necessary Revelation of Secrets.

as delay in the production of the document is ( Secrets refer to any data or information which is
sufficient which may consists alarm to the not supposed to be publicized or known without
public or loss of confidence in government prior approval of the proper officer)
service
First Kind: Article 229. Revelation of Secrets by
2. By Destroying as in the act of a letter carrier who An Officer
burned the mail
The Secrets refer to those affecting public interest of
3. By concealing: This includes acts of hiding or minor consequence which are not punished by any
making unavailable the documents to authorized other provision of law
persons for their inspection, reading, copying or for
their own knowledge. This will not apply if the  These secrets must be known to him virtute officii
documents or papers are confidential in nature,  If the accused is a private person, the crime would
such as the records of a Youthful Offender who has be under the article on Unlawful Means of
been acquitted. Publication
 Damage to public interest is not required
Article 227. Officer Breaking Seal  This article is violated in two ways: (a) by the
actual revelation of secrets or (b) wrongful delivery
Concept: It is the crime committed by a public officer, of papers or copies of papers the contents of which
charged with the custody of papers or documents, who should not be known
breaks the seal placed thereon by proper authorities on
the documents or permits the seal to be broken. The Acts punished
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1. Revealing any secrets known to the offending
public officer by reason of his official capacity;  The secret revealed pertains to private secrets
which the public official came to know in his
Elements official capacity
 Examples: (a) Revelation of matters known by
a. Offender is a public officer; Probation Officers or Personnel of the DSWD who
b. He knows of a secret by reason of his official conduct background checks on accused or parties
capacity; to a case (b) revelation of what a PAO Lawyer or
c. He reveals such secret without authority or Prosecution learned about a person he has
justifiable reasons; interviewed as a witness
d. Damage, great or small, is caused to the
public interest. Crimes Involving Disclosure of Information:

2. Delivering wrongfully papers or copies of papers of 1.Under Infidelity of Public Officers Article 229 and
which he may have charge and which should not 230)
be published.
2. Under Unlawful Means of Publication (Art. 154 par.3)
Elements if the revelation is by a private individual

a. Offender is a public officer; 3. Under C.A. 616 or Espionage if the matter pertains
b. He has charge of papers; to secrets of the state or to the defense the
c. Those papers should not be published; defense of the sate
d. He delivers those papers or copies thereof to a 4. Betrayal of Trust By An Attorney if they pertain to
third person; the secrets of a client
e. The delivery is wrongful;
f. Damage is caused to public interest. 5. Under Discovery and Revelation of Secrets under
Article 290 (Seizure of Correspondence), 291 (By a
 Examples: (a) the Secretary who reveals the manager. Employee or servant) or Article 292 (
decision of the Court/Quasi- Revelation of Industrial Secrets) .These pertain to
Judicial/Administrative body prior to its the revelation of private secrets by a private
promulgation (b) personnel who informs an person
applicant of the who has been appointed (c) a
prosecutor who reveals the evidence to be Other Offenses or Irregularities by Public
presented to court Officers

REVELATION OF INFIDELITY IN A. Disobedience which is either:

SECRETS BY AN THE CUSTODY OF
OFFICER DOCUMENT OR 1. Open Disobedience or Inceptive
PAPERS BY Disobedience
REMOVING THE
SAME Article 231. Open Disobedience

The papers contain The papers do not Elements

secrets and therefore contain secrets but
should not be their removal is for a. Officer is a judicial or executive officer;
published, and the an illicit purpose b. There is a judgment, decision or order of a
public officer having superior authority;
charge thereof c. Such judgment, decision or order was made
removes and delivers within the scope of the jurisdiction of the
them wrongfully to a superior authority and issued with all the legal
third person formalities;
d. He, without any legal justification, openly
Second Kind: Article 230. Public Officer refuses to execute the said judgment, decision
Revealing Secrets of Private individual or order, which he is duty bound to obey.

Elements  Examples: (i) Refusal of a trial court Judge to

comply with the order of the Supreme Court to
1. Offender is a public officer; remand for the reception of additional
2. He knows of the secrets of a private individual by evidence (ii) Refusal to reinstate dismissed
reason of his office; employee despite Order of the Civil Service
3. He reveals such secrets without authority or Commission (iii) Refusal to Proclaim the
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justifiable reason. winning candidate as found by the Court
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2. Disobedience to the Countermanding Order 4. Disobedience in the form of Refusal to
of Superior Discharge Elective Office

Article 232. Disobedience to Order of Article 234. Refusal to Discharge Elective

Superior Officer When Said Order Was Office
Suspended by Inferior Officer
Concept: The crime by an elected public official
Concept: The subordinate suspended the who shall refuse without legal motives i.e valid
execution of the Order of a superior by asking for a justification to be sworn in or to discharge the
reconsideration but suspension was disapproved by duties of his office
the superior and still, the subordinate refuses to
carry out the order Elements

Elements 1. Offender is elected by popular election to a

public office;
a. Offender is a public officer; 2. He refuses to be sworn in or to discharge the
b. An order is issued by his superior for duties of said office;
execution; 3. There is no legal motive for such refusal to be
c. He has for any reason suspended the sworn in or to discharge the duties of said
execution of such order; office.
d His superior disapproves the suspension of the
execution of the order;  He is not liable if his ground is due to a legal
e. Offender disobeys his superior despite the consideration, such as when he was arrested
disapproval of the suspension. for committing an offense and is imprisoned,
or supervening factual reasons, as when he
 Example: The Secretary of Justice reversed the has to go abroad for medical reasons
Resolution of Dismissal of the City Prosecutor
and ordered him to file the Information in
Court. The City Prosecution initially did not B. Maltreatment of Prisoners Under Article 235.
carry out as he filed a reconsideration or
objection but were denied, and yet he refuses Elements
to comply.
1. Offender is a public officer or employee;
3. Disobedience in the form of a Refusal of 2. He has under his charge a prisoner or detention
Assistance prisoner;
3. He maltreats such prisoner in either of the
Article 233. Refusal of Assistance following manners:
a. By overdoing himself in the correction or
Concept: The crime committed by a public officer handling of a prisoner (by final judgment) or
who, upon demand from competent authority, detention prisoner under his charge either –
shall fail to lend his cooperation towards the (1) By the imposition of punishment not
administration of justice or other public services. authorized by the regulations; or
(2) By inflicting such punishments (those
Elements authorized) in a cruel and humiliating
a. Offender is a public officer; manner; or
b. A competent authority demands from the b. By maltreating such prisoners to extort a
offender that he lend his cooperation towards confession or to obtain some information from
the administration of justice or other public the prisoner.
service;
c. Offender fails to do so maliciously. 2 Forms of Maltreatment (Sir Sagsago)

 The refusal must be unjustified (i). By overdoing himself in the correction or

 Examples: (i) The Chief of Police who handling a prisoner such as by physical
refuses to cause the service of subpoena beatings or deprivation of food, or hanging a
issued by the Prosecutor (ii) a government sign around his neck
doctor who refuses to testify as a witness on
request of the Prosecutor or the Court (iii) A (ii). By the imposition of unauthorized punishments
government doctor who refuses to conduct or if so authorized, by inflicting such
anti-dengue vaccinations despite request of punishments in a cruel or humiliating manner .
the City Mayor Examples: punishments such as prevention of
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visits as punishments or solitary confinements
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or tying him up or deprivation of sleep, or regulations or special provisions applicable to the
deprivation of conjugal rights. Or where case
cleaning the premises is allowed as
punishment, by ordering the cleaning at night
without sleep, or by ordering the prisoner to Elements
clean naked;
a. Offender is holding a public office;
 If injuries or damages were suffered, they are b. The period provided by law, regulations or
separate offenses special provision for holding such office, has
 If the purpose of the maltreatment is to already expired;
compel the prisoner to confess to a crime or to c. He continues to exercise the duties and
obtain some information, the crime is qualified powers of such office.
maltreatment
 The term prisoner is the same as in the  Exercise of powers ceases upon termination of
prisoner subject of Infidelity i.e one by final the fixed term or when the purposes is
judgment or detention prisoner; one who has achieved (functus officio) or the office is
already been finger printed and booked and abolished
placed inside the jail  Except when the officer is allowed to continue
 Other Related Crimes Upon A Person In Police in a hold over capacity
Custody
3. Abandonment of Office or Position under
i). Physical Injuries: if the person is merely in Article 238
arrest or is a suspect and is not yet a
prisoner and is beaten up Concept: The crime committed by a public officer
who before the acceptance of his resignation, shall
ii). Slander by Deed if the person under arrest abandon his office to the detriment of the public
is paraded with a note on his body saying service.
―I am a drug pusher‖
Elements
iii). Coercion if the purpose is to compel the
person under arrest or suspect to confess a. Offender is a public officer;
or to make incriminatory admissions b. He formally resigns from his position;
c. His resignation has not yet been accepted;
C. Anticipation, Prolonging and Abandonment d. He abandons his office to the detriment of the
public service.
1. Article 236. Anticipation of Duties of A
Public Office  It is essentially that the officer has filed a
formal resignation to the appointing power
Concept: The crime by a person who shall  Resignation to be effective requires an intent
assume the performance of the duties and powers to relinquish the position, the act of
of the public office without first being sworn in or relinquishment and the acceptance by the
given bond. appointing authority. Hence the resignation
must be accepted, even if the resignation says
Elements ―Effective immediately‖ and meantime the
a. Offender is entitled to hold a public office or officer must continue discharging the functions
employment, either by election or of his office
appointment;  If the officer simply goes AWOL without filing
b. The law requires that he should first be sworn any formal resignation, he maybe held liable
in and/or should first give a bond; under the Anti Graft and Corrupt Practices Act.
c. He assumes the performance of the duties and This is abandonment as a ground for dismissal
powers of such office; but is not the crime of abandonment
d. He has not taken his oath of office and/or  The penalty is higher if the purpose is to avoid
given the bond required by law. prosecuting or acting on a crime

2. Article 237. Prolonging Performance of ABANDONME NEGLIGENCE AND

Duties and Powers NT OF OFFICE TOLERANCE
(ART. 238)
Concept: IN PROSECUTION OF
OFFENSES (ART. 208)
The crime committed by a public officer who
continues to exercise the duties and powers of his
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Committed by Committed only by public Elements
any public officers who have the
officer duty to institute a. Offender is an officer of the executive branch
prosecution for the of the government;
punishment of violations b. He (i) assumes judicial powers, or (ii)
of the law obstructs the execution of any order or
decision rendered by any judge within his
jurisdiction.
The public The public officer does not
officer abandon his office but he  Example: (i). A Mayor who arbitrates and
abandons his fails to prosecute an offense decides conflicts between his constituents (ii)
office to evade by dereliction of duty or by The Mayor sends his bodyguards and
the discharge of malicious tolerance of the policemen to stop the execution of a writ of
his duty commission of offenses. execution or prevent the service of warrants

E. Disobeying Request for Disqualification (Sir

D. Usurpation of Powers: Sagsago: Disobeying Request for Inhibition) (Art.
242)
Concept: These crimes refer to the interference
by an officer of one department with the functions Concept: Committed by any officer who has been
of the officials of the other departments of formally asked to inhibit or refrain from taking
government in violation of the principle of action upon a matter but who continues with the
separation of powers. They are different from the proceeding after having been lawfully required to
crime of Usurpation of Authority which is usually refrain
committed by private persons.
Elements
1. Article 239. Usurpation of Legislative
Powers a. Offender is a public officer;
b. A proceeding is pending before such public
Elements officer;
c. There is a question brought before the proper
a. Offender is an executive or judicial officer; authority regarding his jurisdiction, which is
b. He (i) makes general rules or regulations not yet decided;
beyond the scope of his authority or (ii) d. He has been lawfully required to refrain form
attempts to repeal a law or (iii) suspends the continuing the proceeding;
execution thereof. e. He continues the proceeding.

 Example: A Mayor who in the guise of an  The offender is an officer before whom there
Administrative Order establishes a curfew is pending a judicial quasi-judicial or
hour; or directs the Municipal Treasurer to administrative proceeding and the issue of
release money to fund a certain project jurisdiction (can he hear the case?) has been
2. Article 240. Usurpation of Executive raised and is still under consideration but he
Functions continues with the proceeding. This does not
apply when the officer is asked to inhibit due
Elements to personal bias or loss of trust and confidence
in him.
a. Offender is a judge;
b. He (i) assumes a power pertaining to the F. Orders or request by executive officer to any
executive authorities, or (ii) obstructs the judicial authority ( Art. 243)
executive authorities in the lawful exercise of
their powers. Concept: Crime consists of an executive officer
giving an order or suggestion to any judicial
 Such as accepting official visitors and authority in respect to any case or business within
presenting them the key to the city. Maybe the exclusive jurisdiction of the judicial authority
committed by the issuance of baseless
injunctions against purely administrative Elements
matters,
1. Offender is an executive officer;
3. Usurpation of Judicial Functions Powers 2. He addresses any order or suggestion to any
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3. The order or suggestion relates to any case or
business coming within the exclusive 1. By soliciting or making immoral advances to a
jurisdiction of the courts of justice. woman interested in matters pending before the
public officer for decision, or with respect to which
 Also punished under RA 3019 he is required to submit a report to or consult with
 Example: Suggesting who to be appointed as a superior
Clerk of Court or how much bail bond to
require or who to appoint as de oficio counsel  The offender is any public officer including a
female officer.
G. Unlawful Appointments ( Art. 244)  To solicit is to demand, suggest, proposed or
ask for sexual favors. It must be characterized
Elements by earnestness and persistence, not just a
casual remark even if improper. Mere
1. Offender is a public officer; solicitation consummates the crime even if the
2. He nominates or appoints a person to a public solicitation or advances had been rejected
office;  This crime is consummated by mere proposal.
3. Such person lacks the legal qualifications  Proof of solicitation is not necessary when
therefore; there is sexual intercourse.
4. Offender knows that his nominee or appointee  If as a consequence the officer succeeds in
lacks the qualification at the time he made the committing an immoral act, the same is a
nomination or appointment. separate offense

 But the mere act of recommending is not 2. The solicitation is upon a woman prisoner (i.e.
covered as it simply an act of presenting soliciting or making immoral or indecent advances
whereas nominating is vouching for the to a woman under the offender‘s custody)
qualifications of a person
 To stop political patronage  The offender is any person who is directly
charged with the care and custody of
prisoners, or persons under arrest such as Jail
Abuses Against Chastity Guards and law enforcers who have arrested a
woman who has not yet been turned over to
Introduction. This is different from Crimes Against the jail. Female guards and law enforcers are
Chastity which are private crimes and require a included
complaint to be prosecuted.  If the woman succumbs or consented the jailer
is liable
ART. 245 – ABUSES AGAINST CHASTITY-
PENALTIES 3. Soliciting or making immoral or indecent advances to
the wife, daughter, sister or relative within the
same degree by affinity of any person in the
ELEMENTS:
custody of the offending warden or officer Note
1. That the offender is a public officer.
the mother is not included.
2. That he solicits or makes immoral or indecent
advances to a woman.
Q: what are the crimes or offenses involving jail
3. That such woman must be-
guards?
a) interested in matters pending before the
offender for decision, or with respect to which
A: They are the following:
he is required to submit a report to or consult
1. Delay in the Release of Detained Persons Under
with a superior officer; or
Article 125
b) under the custody of the offender who is a
warden or other public officer directly charged
2. Infidelity in the Custody of Prisoners under
with the care and custody of prisoners or
Articles 223 and 224
persons under arrest; or
c) the wife, daughter, sister or relative within the
3. Maltreatment of Prisoners Under Article 235
same degree by affinity of the person in the
custody of the offender
4. Abuses against Chastity under Article 245
 The mother of the person in the custody of the
R.A. 7877: The Anti Sexual Harassment Act
offender is not included.
General Concept: Sexual harassment is the act of a
Acts punished
person:
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1. Having authority, influence or moral ascendancy over 12. Abortion practiced by a physician or midwife and
another dispensing of abortives (Art. 259);
2. In a work or training or education environment 13. Duel (Art. 260);
3. Demands, requests or otherwise requires any sexual 14. Challenging to a duel (Art. 261);
favor from another 15. Mutilation (Art. 262);
4. As a condition to giving a benefit or doing some 16. Serious physical injuries (Art. 263);
favor to the victim regardless whether the demand 17. Administering injurious substances or beverages
is accepted (Art. 264);
18. Less serious physical injuries (Art. 265);
Kinds 19. Slight physical injuries and maltreatment (Art.
266); and
1. In a work related or employment environment: 20. Rape (Art. 266-A).

a). As a condition in the (i) hiring, employment, re- Categories:

employment of the victim (ii) for granting
favorable terms or compensations, or as 1. Destruction of Life
condition for promotion or grant of privileges 2. Physical Injuries
(iii) if the refusal results in limitations, a. Mutilation
segregating or classifying the employee which b. Serious
would discriminate, deprive or diminish c. Less Serious
employment opportunities d. slight
b). Would impair the employee‘s right or privileges 3. Rape
under existing labor laws a. Simple
c). Would result in an intimidating, hostile or b. Qualified
offensive environment
Destruction of Life in general.
2. Education or
 Death and its inevitability has been the subject of
3. Training environment inquiry: philosophical, religious, biological and legal
approaches
a). Victim is under the care, custody or supervision
of the offender, or one whose education or  Homicide - when used in its general sense it denotes
training or apprenticeship is entrusted to the that the death of a person was not due to a suicide
offender (such as coaches of sports teams) or because of an accident or to natural causes but
b). The demand is a condition to giving of a because of the act of a person. The term
passing grade, granting of scholarships, ―homicidal death‖ refers to a death which was
payment of a stipend, allowance or other caused by another either intentionally or by
benefit negligence.
c). or results to an intimidating or hostile or
offensive environment for the student, trainee  The following are the terms used depending on who
or apprentice the victim was:

a). Parricide- the killing of one‘s father

b). Matricide- the killing of one‘s mother
TITLE VIII. c). Filicide- the killing of a child
CRIMES AGAINST PERSONS d). Fratricide- the killing of one‘s brother or sister
e). Uxoricide- the killing of one‘s wife
Crimes against persons f). Prolicide- the killing of one‘s offspring
1. Parricide (Art. 246); g). Hosticide- the killing of an enemy
2. Murder (Art. 248); h). Hospiticide- the killing of one‘s host or guest
3. Homicide (Art. 249); i). Feminicide- the killing of a woman
4. Death caused in a tumultuous affray (Art. 251); j) Infanticide- the killing of an infant
5. Physical injuries inflicted in a tumultuous affray k). Suicide- the killing of one‘s self
(Art. 252); l) Regicide- the killing of a king or queen
6. Giving assistance to suicide (Art. 253); m). Genocide- the massacre of a people
7. Discharge of firearms (Art. 254);
8. Infanticide (Art. 255); Classification Under the Revised Penal Code
9. Intentional abortion (Art. 256);
10. Unintentional abortion (Art. 257); 1. Factors Which Determine What Offense Arose
11. Abortion practiced by the woman herself or by her from the Death of a Person
parents (Art. 258);
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a). The presence of qualifying aggravating  The law does not require knowlwdge of
circumstances relationship. If a person killed another not knowing
b). The relationship between the accused and the that the latter was his son, will he be guilty of
victim parricide? Yes, because the law does not require
c). Whether the victim is born or still a fetus knowledge of relationship between them
d) The age of the victim  The spouse must be the lawful spouse

2. Classification of Crimes Resulting from the o The spouses maybe separated by judicial
Death of a Person decree or separated in fact

a). Destruction of Life: the killing of a human o The fact of marriage must be alleged in the
being. Question: X killed Y. What are the Information otherwise the killing is homicide or
possible crimes which arose due to the killing? murder as the case maybe, even if the fact of
They may either be: marriage was proved in the course of the trial.
(i). Parricide
(ii). Murder o The best evidence would be the marriage
(iii). Homicide which includes contract but even in the absence thereof,
(a) Under Exceptional Circumstances testimony witnesses may show the lawful
(b) In a tumultuous Affray relationship as the presumption of marriage
(c) In a duel also applies, or if the accused does not object
(iv). Giving Assistance to a Suicide to the claim of marriage.
(v). Infanticide
(vi), Abortion o In case of Muslim marriages Article 27 of P.D.
1083‖ The Muslim Code of Personal Laws‖
Crimes Involving Destruction of Life allows a Muslim to validly contract marriage
with four wives, but the killing of the 2nd, 3rd or
Article 246. Parricide 4th wife will not constitute parricide because a
Muslim would be punished and penalized more
Elements than a non-muslim by reason of a marriage
which the law allows him to contract. It is
1. A person is killed; parricide only if the one killed is the first wife.
2. The deceased is killed by the accused
3. The deceased  The child may be legitimate or illegitimate but
a). Father or mother should not be less than 3 days old. The father or
b). Child whether legitimate or illegitimate mother maybe legitimate or not, but in case of
c). Legitimate ascendant other ascendant or descendant, they must be
d). Legitimate descendant legitimate
e). Lawful spouse
Q: GF has a bastard son named BS who has a
Cases of parricide when the penalty shall not be legitimate son named L. Is parricide committed
reclusion perpetua to death: if: (a) GF kills L (b) L kills GF
1. parricide through negligence (art .365)
2. parricide by mistake ( art. 249) Q: Suppose BS is legitimate but L is illegitimate,
3. parricide under exceptional circumstances ( art. would the answer be the same?
247)
 The basis of the classification is the blood
 Relationship of the offender with the victim is the relationship in the direct ascending and descending
essential element of the crime. lines hence:

Q: If a person wanted to kill a stranger but by o Killing of siblings (brother/sister) and other
mistake killed his own father, will it be parricide? collateral relatives is not parricide
Yes, but Art. 49 applies as regards the proper
penalty to be imposed. o Non-relatives or strangers who participate in
the killing will be liable for homicide or murder
A stranger who cooperates and takes part in the as the case may be
commission of the crime of parricide, is not guilty
of parricide but only homicide or murder, as the  The killing maybe through negligence as when a
case may be. The key element in parricide is the father plays with his gun which went off and killed
relationship of the offender with the victim. the wife
(PEOPLE vs. DALAG, GR No. 129895, April 30,  If the accused is not aware that the victim is his
2003) relative, he will be charged for the actual crime
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committed but Article 49 will be applied to o They were the offending spouses with the
determine his penalty partner or the daughter and her seducer who
 The crime may be aggravated by the were caught by surprise. The phrase does not
circumstances which qualify murder but they will refer to the accused spouse.
be considered as ordinary aggravating
circumstances. For example: The husband may o This includes the situation where the offended
poison the wife or kill her by means of fire, or spouse had prior suspicion or knowledge of
resort to treachery. Said circumstances will be the infidelity but simply resorted to a strategy
appreciated as generic aggravating circumstances. to catch the guilty parties spouse in flagranti.

Article 247. Death or Physical Injuries Inflicted o The surprise must take place in the very act of
under Exceptional Circumstances sexual intercourse, during the criminal
conversation, not during the preparatory acts
Introduction: It is the killing or wounding by one who or after the sexual act
surprised the spouse in the act of sexual intercourse
with another, (called euphemistically CRIMINAL Q: Must the guilty spouse and partner be aware
CONVERSATION or any illicit sex for that matter) or that they were ―discovered‖ as to be literally
the minor daughter of the accused spouse and living surprised, or does Article 247 include
with the accused spouse, in the act of sexual situations where the offending spouses and
intercourse with her seducer partners were killed without them being aware
they were discovered and caught in flagranti?
Article 247 does not define a crime but grants a
privilege or benefit amounting to an exemption from  At what point must the killing of wounding take
punishment. Thus the commission of the crime under place? It must be either:
the situation contemplated would constitute an
Absolutory Cause. a). During the discovery: i.e simultaneously with
the discovery
The killing or wounding is regarded as a justifiable
outburst of passion. b). Or immediately thereafter:

The accused will be charged for parricide, Murder or o The strict traditional view held that there
Homicide or Physical Injuries, and it is up to the be no lapse of time from the discovery to
accused to prove the killing or physical injuries were the klilling.
under the circumstances conceived by Article 247. This
is a matter of defense. o However, the better view is that Article
247 applies so long as there was no
The sexual intercourse must be voluntary on the part unnecessary interruption or break from
of the offending spouse or daughter, otherwise the the time of discovery to the pursuit and
intercourse would constitute rape and the killing would then to the moment of the killing or
become the justifying circumstance of defense of a wounding. The discovery, pursuit, and
relative. killing must be one continuous process.

Elements o In the case of PP. vs. Abarca ( 153 SCRA

735) (one hour passed from the time of
1. A legally married person, or a parent, surprises his discovery to the time the accused went to
spouse or his daughter, the latter under 18 years look for a weapon, returned to look for the
of age and living with him, in the act of committing accused until he saw him inside a house
sexual intercourse with another person; playing mahjong) Article 247 was applied
2. He or she kills any or both of them, or inflicts upon because although an interval of time
any or both of them any serious physical injury in elapsed, the law however does not require
the act or immediately thereafter; the killing to be instantly or simultaneous
3. He has not promoted or facilitated the prostitution with the discovery, so long as the killing
of his wife or daughter, or that he or she has not was the proximate result of the outrage
consented to the infidelity of the other spouse. which overwhelmed the accused or that
the killing was when the accused was still
 The spouses must be legally married. If not the acting under the influence of the infidelity.
situation may only give rise to the mitigating
circumstance of Passion or Obfuscation  With respect to the killing of the daughter and her
 Meaning of the phrase‖ having surprised‖ (or seducer, the daughter must be a minor and the
element of surprise): sexual intercourse must be in the dwelling of the
accused parent and not elsewhere.
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Effect if third persons are killed or wounded:
a. With treachery, taking advantage of superior
Per PP. vs. Abarca, a complex crime does not arise if a strength, with the aid or armed men, or
third person is killed or wounded from the act of the employing means to waken the defense, or of
accused in shooting at the guilty spouse or the latter‘s means or persons to insure or afford impunity;
partner, but the accused may be held liable for reckless
imprudence b. In consideration of a price, reward or promise;

Example: The accused shot at the offending spouse c. By means of inundation, fire, poison,
and partner but the bullet exited and killed a Peeping explosion, shipwreck, stranding of a vessel,
Tom. If it was proven the killing falls under Article 247, derailment or assault upon a railroad, fall of an
the accused will be liable for the death of the Peeping airship, by means of motor vehicles, or with
Tom only if it was proven his presence was known to the use of any other means involving great
the accused and who did not take precautions to see waste and ruin;
that other people will not be hit by the bullet.
d. On occasion of any of the calamities
Penalty: enumerated in the preceding paragraph, or of
an earthquake, eruption of a volcano,
1. If death or serious physical injuries resulted, the destructive cyclone, epidemic, or any other
accused will be imposed the penalty of destierro, public calamity;
which is intended more to protect him from the
retaliation of relatives of the victim, than as a e. With evident premeditation;
punishment.
f. With cruelty, by deliberately and inhumanly
2. If what were inflicted were less serious or slight augmenting the suffering of the victim, or
physical injuries, there is no criminal liability outraging or scoffing at his person or corpse.

4. The killing is not parricide or infanticide.

Article 248. Murder

Concept: It is the crime committed by the killing of a  The concept of the qualifying circumstances are
human being which does not constitute parricide or the same as in Article 14
infanticide and where it is both alleged and proven that
the killing was attended by any of the qualifying o EXCEPT for ―outraging or scoffing at the
aggravating circumstances under Article 248. person or corpse‖, which occurs after the
victim is already dead, all the other
Elements circumstances occur either prior to or
1. A person was killed; simultaneous with the act of killing. Scoffing or
2. Accused killed him; outraging includes doing any act upon the
3. The killing was attended by any of the following corpse which adds to the mental suffering or
qualifying circumstances – humiliation of the heirs of the victim or which
offends the public.

Examples: (i) dismembering the corpse by

cutting off the head (ii) urinating on it (ii)
putting it on a sack and throwing the sack in a
garbage pit (iv) stripping if off the clothes

o Where the circumstance pertains to the

means, methods or forms, it is usually
treachery which is preferred and the rest are
absorbed; such as night time, advantage of
superior strength, aid of armed men.

o Where treachery is present with other

circumstances not relating to the means,
methods or forms, (e.g. price, reward or
promise) it is treachery which will be used to
qualify and the rest will be considered as
merely generic aggravating, provided they
were duly alleged in the Information
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o Where fire is used, the death of the victim  This may be committed by negligence. However
must be the purpose or objective of the where the victim does not die, the crime is either
accused, such as burning his person, throwing Reckless Imprudence Resulting in Physical Injuries
him into a fire or pouring gasoline on his body (Serious, Less Serious or Slight). There is no crime
and lighting it. If the intent or purpose was to of Reckless Imprudence Resulting to Frustrated or
destroy property by means of fire and it was Attempted Homicide because intent is incompatible
incidental that a person was killed, the result is with negligence
the special complex crime/composite crime of
Arson Resulting in Homicide.  Where there are two or more persons who inflicted
injuries on the person, all are liable for the death
o If homicide or murder is commited with the if:
use of an unlicensed firearm, such is a). There is conspiracy
considered as an aggravating circumstance. b). There is no conspiracy but the wounds inflicted
(RA 8294) by each of the assailants are mortal wounds
c). There is no conspiracy but it cannot be
o Rules for the application of the determined who inflicted the mortal wounds
circumstances which qualify the killing
to murder  As in all other
1. That murder will exist with only one of the killings, the accused may be convicted of homicide
circumstances described in Art. 248 even if the body of the victim has not been found,
2. That when the other circumstances are so long as the corpus delicti has been proven.
absorbed or included in one qualifying
circumstance, they cannot be considered In all crimes against persons in which the death of
as generic aggravating. the victim is an element of an offense, there must
3. That any of the qualifying circumstances be satisfactory evidence of (1) the fact of death
enumerated in Art. 248 must be alleged in and (2) the identity of the victim.
the information
 ACCIDENTAL HOMICIDE - is the death of a
 Murder cannot be committed by negligence person brought about by a lawful act performed
with proper care and skill and without homicidal
Article 249. Homicide intent.
 Use of unlicensed firearm is an aggravating
Concept: The unjustified killing of a human being circumstance.
which does not constitute murder, parricide, or
infanticide Article 250. Penalty for Frustrated Parricide,
Murder or Homicide
The accused will be convicted of Homicide in the
following instances: Concept: Article 250 is the authority for the court to
(1). When in the commission thereof, there is absent impose a penalty one degree lower the impossible
any of the qualifying circumstances of murder or penalty for frustrated or attempted murder, parricide or
(2). None of the qualifying circumstance has been homicide. This is in the court‘s discretion considering
alleged in the Information or the facts of the case. (Meaning: Instead of a penalty
(3). Even if a qualifying circumstance is alleged but it one degree for the frustrated stage, it imposes a
was not proved. penalty 2 degrees lower. Instead of 2 degrees for the
attempted stage, it imposes a penalty 3 degrees lower)
Elements
Article 251. Death Caused in a Tumultuous
1. A person was killed; Affray
2. Offender killed him without any justifying Article 252: Physical Injuries Inflicted in a
circumstances; Tumultuous Affray
3. Offender had the intention to kill, which is
presumed; Concept: Death or physical injuries caused in a
4. The killing was not attended by any of the tumultuous affray takes place when a quarrel or fight
qualifying circumstances of murder, or by that of breaks out among several persons, who do not belong
parricide or infanticide. to distinct groups, in a confused manner in the course
of which a person is killed or wounded and the author
 Intent to kill is conclusively presumed when death thereof can not be ascertained.
results; evidence of intent to kill is important only
in attempted or frustrated homicide.  The tumultuous affray must be a free-for-all fight
(labo-labo or ―to-whom-it-may-concern‖) must
 Intent to kill usually shown by the kind of weapon involve at least four persons who fight against
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used and part of the body. each other
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 The participants do not belong to distinct groups  Injured must be a participant in the affray
otherwise all will be liable under the principle of
implied conspiracy Article 253: Giving Assistance to Suicide
 The resulting harm is either death, serious or less
serious physical injuries, but not slight physical Two ways of commission/ Acts Punished:
injuries and the order of priority as to who shall be
liable is as follows: 1. Assisting another to commit suicide, whether the
1. The author thereof i.e. the one who inflicted the suicide is consummated or not.
fatal blow or who caused the injury
2. Anyone who employed violence against the Examples: giving the means such as the poison,
victim the knife, the gun or the rope. It may also include
such acts of giving moral and psychological
Persons liable in a tumultuous affray (San assistance such as encouragement, suggestions as
Beda) to how and where to commit suicide. The penalty
1. The person or persons who inflicted the is Prison Mayor if the person died and it is Arresto
serious physical injuries are liable. Mayor medium-maximum if the person does not
2. If it is not known who inflicted the serious die.
physical injuries on the deceased, all the
persons who used violence upon the person of 2. Lending assistance to the extent of doing the killing
the victim are liable, but with lesser liability. himself.

 The participants may also be liable for Disturbance The penalty is that of homicide
of the Public Order and for Malicious Mischief if
they destroyed property.  The person wanting to commit suicide is not liable

 When the quarrel is between a distinct group of  If the act is the second mode i.e the accused does
individuals, one of whom was sufficiently identified the killing himself, and the person does not die, the
as the principal author of the killing, as against a crime is frustrated
common, particular victim, it is not a "tumultuous
affray" within the meaning of Art. 251 of The  If in the course of the act of suicide a third person
Revised Penal Code. (PEOPLE vs. UNLAGADA, GR is killed or injured, or a property is destroyed, the
No. 141080, September 17, 2002) crime is a complex crime but the suicidee is not
liable. Example: The accused shot the suicidee, the
Elements of Art. 251 bullet exited and killed another, the crime is Giving
Assistance to Suicide with Homicide.
1. There are several persons;
2. They do not compose groups organized for the Euthanasia or mercy killing - act of ending the life
common purpose of assaulting and attacking each of one who is terminally ill in a relatively painless
other reciprocally; manner.
3. These several persons quarreled and assaulted one
another in a confused and tumultuous manner; It is a practice of painlessly putting to death a person
4. Someone was killed in the course of the affray; suffering from some incurable disease.
5. It can not be ascertained who actually killed the
deceased; A doctor who resorted to euthanasia may ne held liable
6. The person or persons who inflicted serious for murder since euthanasia is not giving assistance to
physical injuries or who used violence can be suiside. (San Beda)
identified.
Q: Does the law recognize the ―Right to Die with
 In this case, the victim may be a participant or Dignity‖ on the part of hopeless patients?
non-participant thereof.
Q: Are the relatives liable if they remove the life
Elements of Art. 252 sustaining gadgets to a brain dead patient?

1. There is a tumultuous affray; Q: What about killing a wounded comrade in arms to

2. A participant or some participants thereof suffered prevent his capture by the enemy and the possibility of
serious physical injuries or physical injuries of a torture, or to prevent vital information from being
less serious nature only; forced form him?
3. The person responsible thereof can not be
identified; Note: According Sir Sagsago, in the foregoing 2
4. All those who appear to have used violence upon questions, we should suspend the application of the
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the person of the offended party are known. law so that there would be no criminal liability.
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Article 254. Discharge of Firearms 4. Carrying any licensed firearm outside of one‘s
residence without any legal authority therefore i.e.
Concept: The crime committed by any person who permit to carry outside one‘s residence
shall discharge a firearm at another without intent to
kill, and for any undisclosed personal purpose. Penalty

Elements: The penalty for possession of a firearm was originally

fixed to be Reclusion Temporal Maximum to Reclusion
1. Offender discharges a firearm against or at another Perpetua. The penalty now depends on the caliber of
person; the firearm involved thus:
2. Offender had no intention to kill that person.
1. Prison Mayor medium period and a fine of
 The person fired at should not die because if P30,000.00 for high powered firearms, such as
such be the case, the crime is homicide where automatic firearms
intent to kill is immediately presumed and lack of
intent becomes merely mitigating 2. Prision Correctional maximum and fine of
 If there is intent to kill, the crime is either P15,000.00 for low powered firearm such as paltiks
attempted or frustrated homicide
o The lack of intent to kill may be inferred from No Other Crime Rule
the fact that the gun was fired from a
distance; or was between the legs, above the The crime of illegal possession is committed only if ―NO
head, or to the sides, but not to the body OTHER CRIME WAS COMMITTED BY THE PERSON
 The reasons should not be known, else there ARRESTED.‖
would be a different crime based on the reason.
Example: coercion (if the purpose is to compel the A. Meaning and Coverage of the rule
doing of an act or to prevent an act) or threats
(threatening the commission of a wrong)  The accused will not be convicted for
 If no bullet came out as the gun jammed, the Possession of the unlicensed firearm but for
crime is frustrated discharge of firearm the other crime committed such that there can
 If however injuries were suffered by the person be no separate convictions for illegal
fired at, the crime would be a complex crime, possession of firearm.
slight injuries would be separate offenses  The rule does not extend to the possession of
 If the gun was not pointed at a person or at his explosives.
general direction, the crime is alarm and scandal  The ―other crimes‖ includes those penalized
 It is not applicable to police officers in the with lower penalties such as alarm and
performance of their duties. scandal, slight physical injuries, threats and
 The crime is discharge of firearm even if the gun even unjust vexation. They include violation of
was not pointed at the offended party when it was special laws such as the Election Code or the
fired, as long as it was initially aimed by the Dangerous Drugs Law.
accused at or against the offended party.  Possession as a special aggravating.

R.A. 8294 : Amending Pres. Decree No. 1866 o The law however provides that if the
Penalizing the Possession of Unlicensed ―Other Crime‖ is murder or homicide,
Firearms (Revilla Law) illegal possession becomes a special
aggravating circumstance, which must be
Acts Punished: alleged in the information. The term
―homicide‖ is used in its generic sense to
1. The manufacture, sale, acquisition, disposition or include parricide, robbery with homicide,
possession of: or where the crime involved a killing. (See
a). Firearms for example: Evangelista vs. Siztoza: Aug.
b). Ammunitions 9, 2001)
c). Instruments used or intended to be used in the
manufacture of firearms and ammunitions o As such special aggravating, it cannot be
d). Explosives offset by mitigating circumstances.

2. The act of tampering of the firearms‘ serial number  When possession absorbed - But if the
manufacture or possession is in furtherance of,
3. Repacking or altering the composition of lawfully or incident to, or in connection with, the
manufactured explosives crimes of rebellion, insurrection, sedition or
coup d‘etat, such violation shall be absorbed.
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B. Should the Gun be actually used in the commission liable therefore. It is improper for the Prosecutor to
of the other crime? assume that the gun-possessor committed acts
amounting to a crime. The only way by which the
 The firearm need not be used actually in the court can exercise this exclusive power is when an
commission of the other crime. It suffices that Information is actually filed with it.
it was in the possession, whether actual or
constructive, of the accused at the time he Thus the Prosecution may prefer to prove the
was committing another crime. This is because ―other crime‖ and the connection of the gun-
the wording of the law is ―provided no other possessor to it, specially if it carries a higher
crime was committed by the persons arrested‖ penalty, or The gun-possessor may plead guilty to
(Agote vs. Lorenzo, 464 SCRA 60; Cupcupin the ‖other crime‖ and thereby escape liability for
vs. PP, 392 SCRA 202) Violation of P.D. 1866 as amended.

 Example: where the accused was convicted for It is for the accused to move to suspend the trial of
illegal possession of drugs only although the the charge for Violation of P.D. 1866 as amended
gun was just found within the premises where to await the final out come of the charge for the
he was arrested (PP. vs. Almeda, 418 SCRA ―other crime‖. If it is found he is guilty of said
254) ―other crime‖ then this is legal basis for the
dismissal of the charge for Illegal Possession, but if
C. QUESTIONS ON THE APPLICABILITY OF THE RULE: he is acquitted, or the case against him is
dismissed for any reason, then and only then may
Q: Must the initial arrest be for the other crime or it be legally said that there was ―no other crime‖
does the rule include an arrest for the illegal which was committed and the prosecution may
possession but the accused committed intentionally move for the revival and trial of the charge for
committed another offense? Suppose the police Illegal Possession. Prescription would not have set
saw a gun tucked in the waistline of X and moved in, as opposed to a situation where a charge for
to arrest him (Or police are serving a search Violation of P.D. 1866 is filed many years
warrant for unlicensed firearms ). X however afterwards. (See Celino vs CA, 526 S 194)
picked a stone and threw it a passing car/ or boxed
another/or defamed a policeman, or otherwise Q: Is it a valid defense for the accused to seek a
intentionally committed another crime. dismissal because he committed another crime but
the victim therein refused to file a complaint?
A: (Personal view): The rule should not apply to a
situation where the arrest is purposely for the A: Personal View: It is believed that since no
possession of the gun but gun-possessor formal charge was filed then there is ―no other
intentionally commits another offense intentionally crime‖ to speak about. The rule therefore should
to avoid prosecution under P.D. 1866 as amended. be construed to mean there was no formal charge
He should be charged for Violation of P.D 1866 and or accusation filed in court either by way of an
for such other offense he intentionally committed. Information or by a Complaint.

In order the ―No Other Crime Rule‖ to apply the “Unlicensed Firearm” includes:
commission of the other crime and the illegal (1) Firearms with expired license and
possession be at least simultaneous with each (2). Licensed Firearms which were used without
other. authority in the commission of a crime.

Q: Can the accused be charged simultaneously for Example: Even if the gun is licensed to an agency
Violation of P.D. 1866 as Amended, and for but it was used to kill, it constitutes the
another offense? aggravating circumstance of ―Use of An unlicensed
firearm‖ (Catalina Security Agency vs. Gonzales-
A: Yes. This is to prevent prescription of violation Decano, 429 SCRA 628).
of R.A. 8294 in the event the case for the ―other
crime‖ is dismissed or resolved in favor of the  Possession to be punishable must not just be a
accused after the passage of years. temporary, incidental, or casual or harmless
possession or control. There must be an ―Intent
What is proscribed is double or multiple convictions to Perpetrate the Act ― or animus possidendi-
and not the simultaneous filing of charges for the prohibited act is done freely, consciously with
violation of R.A. 8294 and violation of some other knowledge that it is prohibited.
penal law.  There should be as many separate Informations to
be filed corresponding to as many unlicensed
It is only the court which has the power to firearms were possessed by the accused. Thus if
determine and declare whether the gun-possessor two unlicensed armalites were possessed, then
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committed an act amounting to a crime and is there be two separate charges.
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 When an amnesty period is granted to holders of b. Acting, but without using violence, without
unlicensed firearms to surrender their firearms or the consent of the woman. (By
apply for a license: (i) there can be no violation of administering drugs or beverages or
P.D. 1866 during the period of amnesty and (ii) to mixing of abortives with the food or
be liable it must be alleged and proved that the drinks)
possession was not to surrender the firearm, but c. Acting (by administering drugs or
that the accused intends to use it to commit beverages), with the consent of the
another crime ( Zuno vs. Dizon (1993) and PP. vs. pregnant woman.
Asuncion, 161 SCRA 490)
Elements

Article 255. Infanticide a There is a pregnant woman;

b. Violence is exerted, or drugs or beverages
Elements administered, or that the accused
otherwise acts upon such pregnant
1. A child was killed by the accused; woman;
2. The deceased child was less than 3 DAYS (72 c. As a result of the use of violence or drugs
hours) old. (Question: why 3 days, not 5 or 10?) or beverages upon her, or any other act of
the accused, the fetus dies, either in the
 The child must be born alive and is viable or womb or after having been expelled
capable of independent existence. But if it was therefrom;
born dead which fact is not known, the act may be d. The abortion is intended.
considered as the Impossible Crime of Infanticide
 Pursuant to the Heinous Crime Law, the penalty is 2). Article 257. Unintentional Abortion
Reclusion Perpetua to Death
 Even if the accused are the parents, the name of Elements
the killing is still Infanticide not Parricide (but the
penalty is the same) a. There is a pregnant woman;
 Creates the special mitigating circumstance of b Violence is used upon such pregnant
―Concealment of mother‘s dishonor‖ to benefit the woman without intending an abortion;
mother or the maternal grandparents if they are c. The violence is intentionally exerted;
the accused, PROVIDED the mother is of good d. As a result of the violence, the fetus dies,
reputation. either in the womb or after having been
expelled therefrom.
Abortion
 The knowledge by the accused that the
Concept: The expulsion of the fetus from the mother‘s woman is pregnant is immaterial
womb in order to kill it. The crime is against the fetus  The violence may have been inflicted
and not against the mother. intentionally or by reckless action
 If both the mother and fetus are killed,
Question: Does the Philippines recognize ―The the crime would be homicide/murder with
reproductive freedom of a woman‖? ( Pro-Life vs Pro unintentional abortion
Choice)  Examples: (i) pushing a pregnant woman
causing her to fall down so that her
Under Philippine Law, there is no legal abortion except stomach hits an object causing her to
only if it is necessary to save the mother‘s life abort (ii) a reckless driver caused his
(Therapeutic abortion) under Article 4 of Article 11 jeepney to hit a post whereby a woman
(State of Necessity) passenger aborted

Kinds: B. As to who caused the abortion:

A. As to the manner of commission: 1. Abortion by the mother herself

1). Article 256. Intentional Abortion a). If the mother attempts to commit suicide
but does not die but the fetus is killed, she
Acts punished is not liable for unintentional abortion
b). If the purpose is to conceal her dishonor,
a. Using any violence upon the person of the this is a special mitigating circumstances
pregnant woman (connotes forcing an and the penalty is one degree lower
actual physical contact by the woman with
an outside object, such as by boxing, 2. Abortion by a stranger but with the mother‘s
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kicking or pressing , throwing, pushing); consent
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a). If grave threats were employed precisely to
3. Abortion by the woman‘s parents but with the cause the woman to abort the crime is Grave
consent of the woman Threats with Intentional Abortion

Article 258. Abortion Practiced by the b). If only light threats were employed, the two are
Woman Herself or by Her Parents separate offenses

Elements c). If there was no intention to cause her abort the

crime is simply threats
1. There is a pregnant woman who has
suffered an abortion;  If abortives are given to a woman to cause her to
2. The abortion is intended; abort in the belief she is pregnant when in truth
3. Abortion is caused by – she is not, the crime is the Impossible Crime of
a. The pregnant woman herself; Abortion. The same is true if the abortives were
b. Any other person, with her consent; inherently inadequate or ineffectual. But if the
or abortives are capable of inducing an abortion but
c. Any of her parents, with her consent was prevented by medical intervention, the crime
for the purpose of concealing her is Frustrated Abortion.
dishonor.  Suppose the woman was purposely placed in such
an emotional, mental and psychological depression
4. Abortion by a physician or a midwife. The so that she will abort? Personal opinion: The crime
penalty is higher than the abortion by others is Intentional Abortion under the second mode

Article 259. Abortion Practiced by A Duels

Physician or Midwife and Dispensing of
Abortives Article 260. Responsibility of Participants in A
Duel
Elements Article 261. Challenging to A Duel

1. There is a pregnant woman who has Concept: This is a ―Gentlemen‘s Fight‖.

suffered an abortion;
2. The abortion is intended; DUEL - It is a formal man-to-man combat with
3. Offender, who must be a physician or weapons between two persons who fight according to
midwife, caused or assisted in causing the certain terms and conditions previously agreed upon
abortion; which govern the conduct of the combat.
4. Said physician or midwife took advantage
of his or her scientific knowledge or skill. It is a formal or regular combat previously concerted
between two parties in the presence of two or more
As to Pharmacists, the elements are: seconds of lawful age on each side, who make the
1. That the offender is a pharmacist. selection of arms and fix all other conditions of the
2. That there is no proper prescription from a fight.
physician.
3. That the offender dispenses any abortive. The combatants are assisted by so called ―SECONDS‖
who arrange the terms of the combat, such as the
As to pharmacists, the crime is consummated place, time, the weapons to be used, whether it is a
by dispensing abortive without proper fight to the death or a fight for honor.
prescription from a physician. It is not
necessary that the abortive was actually used. As a rule, self-defense cannot be invoked EXCEPT when
there is violation of the agreement to fight.
It is immaterial that the pharmacist knows that
the abortive would be used for abortion. Acts Punished:
Otherwise, he shall be liable as an accomplice
should abortion result from the use thereof. a. Under Art 260:
1. Killing the adversary: this is punished with the
 When the mother is killed, her death is complexed penalty of homicide
with the killing of the fetus either as (i) Homicide
with Intentional Abortion if the killing of the fetus 2. Inflicting serious or less serious physical injuries
is intentional or (ii) Homicide with Unintentional
Abortion if the killing of the fetus is unintentional. 3. Merely engaging in combat even if no injuries
 But if there was no violence employed but the or only slight injuries are inflicted
woman was intentionally frightened which resulted
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to abortion: 4. Acting as seconds (punished as accomplices)
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Persons liable: Article 262. Mutilation
1. The person who killed or inflicted physical
injuries upon his adversary or both combatants Concept: To mutilate is to chop off, to clip, to lop off,
in any other case, as principals. a portion of the body which protrudes (not internal
2. The seconds, as accomplices. organs).

b. Under Art 261 Kinds/ Acts Punished

1. Challenging another to a duel;
2. Inciting another to give or accept a challenge 1. Intentionally mutilating an essential organ for
to a duel; reproduction (castration )
3. Scoffing at or decrying another publicly for
having refused to accept a challenge to fight a Elements
duel.
1. There be a castration, either totally or
Persons responsible under Art. 261 are: partially, that is, mutilation of organs
1. Challenger necessary for generation, such as the penis or
2. Instigators ovarium;
2. The mutilation is caused purposely and
 This kind of fights is already passé deliberately, that is, to deprive the offended
 Neither one of the combatants can claim self- party of some essential organ for reproduction
defense
 If there are no formal conditions, the fight is an Vasectomy is not mutilation. It does not entail the
ordinary fight and the laws on crimes against taking away of male reproductive organ.
persons will apply
 One who challenges another to a fight maybe 2. Intentionally mutilating any other part of the body
liable for threats such as the arms ears, legs, nose (mayhem)

Physical Injuries  The purpose must be precisely to deprive the

victim of the use of the organ or part of the
Kinds: body which was mutilated. If not the offense
(a) Mutilation would be ordinary physical injuries. Hence this
(b) Serious Physical cannot be committed by negligence. It is
(c) Less Serious and always intentional.
(d) Slight  Example: (a) The case of Mr. Bobbit (b).
Cutting off the arm of a champion bowler so
How inflicted: he can not bowl anymore. (c). Cutting off the
legs of a swimmer so he cannot make use of
a). By wounding, beating, mutilating, assaulting. This them.
may be with or without a weapon  Cruelty is inherent in mutilation. This is the only
crime where cruelty is an integral part and is
b). By administering injurious substances or beverages, absorbed therein. If the victim dies, the crime is
such as drugs, spoiled food murder qualified by cruelty, but the offender may
still prove that there is no intention to commit so
c) By taking advantage of the weakness of the mind or grave.
credulity of the victim, such as convincing a person
of low intelligence that he can fly, resulting to his Physical Injuries Proper
own injuries, or inducing him to contort his body
Introduction: When will the infliction of injuries
o If the victim dies, the injuries are absorbed if constitute attempted/frustrated Homicide or physical
they were inflicted by the same accused but if injuries?
by third persons who are not in conspiracy
with the one who inflicted the mortal wound, The absence or presence of an Intent to Kill determines
the said injuries are separately punished what crime was committed. Such intent must be
proven clearly and maybe inferred from:
 Always in the consummated stage and there are 1. The motive of the accused
no attempted or frustrated stages. 2. The nature, kind, and type of weapon used
3. The location, number and nature of the wounds of
o Physical Injuries is a crime based on the result, the victim
specifically on the gravity of the injury. If there 4. The manner of the attack as when it was
is no injury, not even the infliction of pain, treacherous
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then there is no crime of physical injuries. 5. The persistence of the attack
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6. Utterances of the accused accompanying the attack
The crime remains even if the victim
Physical Injuries vs. Attempted or Frustrated homicide undergoes surgery later or face lift or artificial
means to cover up the ugliness.
PHYSICAL INJURIES ATTEMPTED OR
FRUSTRATED Examples: A scar on the face; loss of a front
HOMICIDE tooth not the molars or the front baby tooth as
this can be replaced; slicing off the earlobe.
The offender inflicts Attempted homicide
physical injuries. may be committed, b. Loses any other member of his body (Loss of a
even if no physical non-principal member of the body); or
injuries are inflicted. c. Loses the use thereof; or
Offender has no intent The offender has an d. Becomes ill or incapacitated for the
to kill the offended intent to kill the performance of the work in which he was
party offended party. habitually engaged for more than 90 days in
consequence of the physical injuries inflicted;

Article 263. Serious Physical Injuries 4. When the injured person becomes ill or
incapacitated for labor for more than 30 days (but
How committed must not be more than 90 days), as a result of the
physical injuries inflicted.
1. By wounding;
2. By beating; Illness includes the healing period and not just the
3. By assaulting; or actual number of days of confinement in the
4. By administering injurious substance. hospital.

Serious Physical Injuries (Serious Physical Injuries  The penalty is higher if (Qualifying
are subdivided into four kinds for purposes of Circumstances):
determining the penalty to be imposed) (1) it is committed against the relatives who maybe
victims of parricide (conformably with the
1. When the injured person becomes insane, principle that the alternative circumstance of
imbecile, impotent or blind (total blindness) in relationship is aggravating in grave or less
consequence of the physical injuries inflicted grave offenses) and
(2) attended by the qualifying circumstances of
 The blindness must be total in both eyes murder.
 The impotence (inability to have engage in
sex) be total and not just a sexual dysfunction But these provisions will not apply if the injury of a
child was caused by excessive chastisement by a
2. Loss of a Principal Member /Organ of the Body. parent.
When the injured person -
a. Loses the use of speech or the power to hear  If the victim is a child and the accused is the
or to smell, or loses an eye, a hand, afoot, an parent, even if the child did not suffer any injury
arm, or a leg (total loss); but the cruel and unusual punishments were
b. Loses the use of any such member; or inflicted or he was subjected to humiliation, the
c. Becomes incapacitated for the work in which crime is Child Abuse under R.A. 7610.
he was theretofore habitually engaged, in
consequence of the physical injuries inflicted; Article 264. Administering Injurious Substances
or Beverages
3. When the person injured –
Elements
a. Becomes deformed; or
1. Offender inflicted upon another any serious
Deformity or disfigurement - a permanent, physical injury;
visible ugliness which can not be cured by the 2. It was done by knowingly administering to him any
action of nature. These must be inflicted on injurious substance or beverages or by taking
parts of the body which are normally exposed advantage of his weakness of mind or credulity;
and not usually covered by clothes. 3. He had no intent to kill.

REQUISITES OF DEFORMITY Article 265. Less Serious Physical Injuries

1. Physical ugliness
2. Permanent and definite abnormality Concept: The crime which result when injuries are
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3. Must be conspicuous and visible inflicted upon a person which (1) shall incapacitate him
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for labor ten days to 30 days or (2) shall require (1) A written notice to the school authorities from the
medical attendance for the same period head of the organization seven days prior to the
rites
ELEMENTS: (2) should not exceed 3 days in duration
1. The offended party is incapacitated for labor for 10 (3) presence of 2 representatives of the school or
days or more but not more than 30 days, or needs organization
attendance for the same period.
2. The physical injuries must not be those described Persons liable:
in the preceding articles 1. Officers and members who actively participate
2. Owners of the place as accomplice if the he has
Qualified as to penalty actual knowledge but failed to take action to
prevent
1. A fine not exceeding P 500.00, in addition to 3. Parents of officers or members where the hazing
arresto mayor, shall be imposed for less serious took place who have actual knowledge but failed to
physical injuries when – prevent
4. School authorities who have knowledge but failed
a. There is a manifest intent to insult or offend to take action are liable as accomplices
the injured person; or 5. Officers, former officers, alumni who planned the
b. There are circumstances adding ignominy to initiation
the offense. 6. Officers or members who induced the victim to be
present at the hazing
2. A higher penalty is imposed when the victim is 7. Advisers who failed to prevent the hazing
either –
 The presence of any person during the hazing is
a. The offender‘s parents, ascendants, guardians, prima facie evidence of participation therein as a
curators or teachers; or principal unless he prevented the commission of
b. Persons of rank or person in authority, the prohibited acts.
provided the crime is not direct assault.  The mitigating circumstance that there was no
intention to commit so grave a wrong shall not
Article 266. Slight Physical Injuries and apply.
Maltreatment
Penalties
Kinds:
If there was death, rape, sodomy or mutilation the
1. Where it incapacitated the victim from labor or penalty is reclusion perpetua. For other injuries, the
required medical attendance from one to nine days penalty is higher than those provided under the
Revised Penal Code. Lack of Intent to commit so grave
2. Where the victim is not incapacitated from his a wrong is not allowed as a mitigating circumstance.
habitual work or do not require medical
attendance. Example: boxing him on the stomach RA. 7610 The Child Abuse law

3. Ill treatment of another by deed without causing 1. Includes any form of physical, psychological, or
injury but the intention is to cause physical pain sexual abuse, and criminal neglect (that diminishes
(such as pulling the hair). the worth of the child)

 When there is no evidence of actual injury, it is 2. If the victim of the Mutilation or Physical Injuries
only slight physical injuries. (Par. 1) is under 12 years old, the penalty under
 Supervening event conveting the crime into serious the Penal Code is higher, it is Reclusion Perpetua.
physical injuries after filing the information for
slight physical injuries can still be the subject of a 3. If the act upon the minor is already punished by
new charge. the RPC, it can not be penalized by RA 7610.

R.A. 8049 The Anti Hazing Law Art. 266-A Rape

HAZING - An initiation rite or practice as a Introduction: Rape used to be a under Crimes

prerequisite for admission into membership in a Against Chastity as Article 335 and a private crime.
fraternity, sorority or any organization which places the R.A. 8353 has made rape a Crime Against Persons
neophyte in some embarrassing or humiliating as Article 266-A. It is a public crime hence:
situations or otherwise subjecting him to physical or (1) There is no need for a prior denunciation by the
psychological suffering. victim to start criminal proceedings and
(2) Any person may bring the crime of rape to the
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Requirements: attention of the authorities, which will be the basis
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for police investigation into the crime and doctrines requiring tenacious resistance
subsequent filing of charges. still apply.

Expanded Concept of Rape  There is no degree of force required to

overcome the resistance as any degree of
2 Kinds of Rape: force, intimidation to compel the victim‘s
submission to the desire of the accused is
1. The Traditional or Conventional Concept which sufficient
is the Penile Penetration into the female sex organ  Where the accused is the father or in case
and which can be committed by a male only and of incestuous rape, resistance is not
where the victim is a female only required due to the moral ascendancy
exercised by the father over the daughter
Elements (under paragraph 1)  If at any moment the victims manifest,
through overt acts that she does not want
1. Offender is a man; sex, any sex with her against her will is
2. Offender had carnal knowledge of a woman; rape
3. Such act is accomplished under any of the
following circumstances: b). When the victim is deprived of reason or
a. By using force or intimidation; otherwise unconscious
b. When the woman is deprived of reason or
otherwise unconscious; Partial deprivation of reason is sufficient which
c. By means of fraudulent machination or may be due to reasons which are organic,
grave abuse of authority; or or due to lack of sleep, or fatigue, or was
d. When the woman is under 12 years of age induced by drugs. As when the victim is in
or demented. a coma or was in that stage of being ―half-
asleep-half awake‖
2. Rape Through Sexual Assault either a penile
insertion into the mouth or anus or a non-penile Q: Suppose substances (Female Viagra)
insertion into the sex organ or anus were administered to the victim, without
her knowledge which incited her passions
Elements (under paragraph 2) and aroused her sexually, which thus made
it easier for the accused to have sex with
1. Offender commits an act of sexual assault; her? NO, because there is no deprivation of
 The act of sexual assault is committed by any reason.
of the following means:
a. By inserting his penis into another 2. Where there was no objection to the sex or
person's mouth or anal orifice; or it was consented to:
b. By inserting any instrument or object into
the genital or anal orifice of another a). By means of fraudulent machinations or grave
person; abuse of authority
3. The act of sexual assault is accomplished
under any of the following circumstances: Fraudulent Machination is the use of
a. By using force or intimidation; or artifice or deceit to obtain the consent of the
b. When the woman is deprived of reason or victim. The woman consented to the sex by
otherwise unconscious; or virtue of the artifice or deceit. There was a
c. By means of fraudulent machination or seduction.
grave abuse of authority; or
d. When the woman is under 12 years of age o The most common form of artifice is a
or demented. false promise of marriage which is the
excuse to have sex with the woman.
How Conventional Rape (Penile Penetration) is However the solicitation must be shown to
committed (an elaboration of the elements under par. be persistent as to overcome the woman‘s
1)) defenses
1. Where the Sex Is Objected to:
o If the artifice is a promise of money or
a). Through Force, threat, or intimidation material things, there is no rape

 This presupposes that there was Grave abuse of authority connotes that the
resistance and not just an initial reluctance accused enjoyed a position of influence or
but there must be a physical overt act ascendancy over the victim which he gravely
manifesting resistance. Mental or verbal abused to secure the consent of the woman to
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resistance is not sufficient. The old
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have sex with him. The relationship or position
of influence or ascendancy may be due to : 2. Qualified Rape (Art 266-B)
(i). Blood relations a). Where the Penalty is Reclusion Perpetua to
(ii) Human relations as officer of an Death as in the following:
organization over members (i). Rape is committed with the use of a deadly
(iii) Education as a teacher over a student weapon or by two or more persons
(iv). Employment as the boss seducing the (ii). When by reason or on the occasion of
secretary rape the victim became insane
(iv). Religion as the minister over his church
member b). Where the penalty is death
(v) Public office as a congressman over a poor (i). when by reason or on the occasion of
girl consummated rape, homicide is
committed (Special Complex Crime of
b). in cases of Statutory Rape Rape)
(ii). when any of the 10 qualifying aggravating
(i). The victim is under 12 years of age. This circumstances are alleged specifically in
refers to the biological age. the Information and duly proven

(ii) The victim is demented. This includes the (1) Where the victim is under 18 years of
insane, imbecile, feeble minded or mental age and the offender is her
retardate provided their mental age must ascendant, stepfather, guardian, or
be that of a woman below 12 years of relative by affinity or consanguinity
age. within the 3rd civil degree, or the
common law husband of the victim‘s
Rape Through Sexual Assault, (an elaboration of mother; or
the elements under par. 2)
(2) Where the victim was under the
The circumstances are the same as in the case of custody of the police or military
Conventional Rape but the accused: authorities, or other law enforcement
agency;
a). Inserts his penis into another person‘s mouth or
anal orifice. (3) Where the rape is committed in full
view of the victim‘s husband, the
 The accused is any person with a penis and parents, any of the children or
the victim may be a male or female relatives by consanguinity within the
 The person with a penis actively initiates the 3rd civil degree;
insertion and not when the person is the
passive participant, as when he was asleep in (4) Where the victim is a religious, that is,
which case, if the act was without his consent, a member of a legitimate religious
he may file a case of acts of lasciviousness vocation and the offender knows the
victim as such before or at the time of
b) Or any object or instrument into the genitalia or anal the commission of the offense;
orifice of another (Object Penetration)
(5) Where the victim is a child under 7 yrs
 The accused maybe a female or male and the of age;
victim may also be a male or female
 The insertion must be with ‖lewed design‖ i.e (6) Where the offender is a member of
to obtain sexual gratification, otherwise it may the AFP, its paramilitary arm, the PNP,
either be physical injuries or slander by deed. or any law enforcement agency and
 This absorbs the crime of Acts of the offender took advantage of his
Lasciviousness position;
 The term object includes parts of the human
body like a finger, tongue or toe. ―The (7) Where the offender is afflicted with
insertion of one‘s finger into the genetalia or AIDS or other sexually transmissible
anal orifice of another constitutes rape by diseases, and he is aware thereof
sexual assault and not merely an act of when he committed the rape, and the
lasciviousness ( PP vs. Fetalino, 525 SCRA 170) disease was transmitted;

Classification of Rape for Purposes of Penalty (8) Where the victim has suffered
(NO LONGER APPLICABLE) permanent physical mutilation;
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1. Simple Rape - the penalty is Reclusion Perpetua
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(9) Where the pregnancy of the offended 3. There is absolutely no attempt to define and
party is known to the rapist at the categorically create marital rape as a crime
time of the rape; or 4. There can be no crime by implication (Principle
of Legality)
(10) Where the rapist is aware of the 5. The women sponsors did not insist on it
victim‘s mental disability, emotional although originally they conceived of it. They
disturbance or physical handicap. left it for the courts to determine.

Special Complex Crimes/Composite Crimes At most the husband will be guilty of coercion,
unless he acted in conspiracy, or was a principal by
1. Rape Resulting to Insanity inducement, or acted as an accomplice or
2. Rape with Permanent Physical Mutilation or accessory.
Disability
3. Attempted Rape with Homicide However, the husband maybe guilty of rape if there
4. Rape with Homicide is legal separation between the spouses, and rape
by sexual assault, this being unnatural.
Note: In Nos. (1) and (2) the person who became
insane or suffered mutilation is the victim of the rape  Rape has only two stages, the attempted and
whereas in Nos. (3) and (4) the victim of the homicide consummated.
may be any person and not necessarily the victim of  As long as there is an intent to effect sexual
the rape. cohesion, although unsuccessful, the crime
becomes attempted rape. However, if that
Defenses Which May Extinguish Criminal intention is not proven, the offender can only be
Liability Or Criminal Action / Effect of Pardon convicted of acts of lasciviousness. The main
(Art 266-C) distinction between the crime of attempted rape
and acts of lasciviousness is the intent to lie with
1. The subsequent valid marriage between the offender the offended woman.
and the offended party extinguishes (a) the  The principle that rape is consummated by the
criminal action i.e the case will be dismiss which slightest penetration applies to both types of rape.
presupposes the marriage took place before or  The character of the victim is immaterial as rape
during the filing of the case or maybe committed even against a prostitute.
(b) the penalty i.e. the accused, if convicted, will  Rape is not a continuing offense
not longer serve the penalty which presupposes
the marriage took place after conviction o Several sexual acts on one occasion is one
rape only as when the girl is kept in a room for
Since rape is now a crime against persons, two hours and the accused had sex for three
marriage exticuishes the penal action only as to times.
the principal but not as to his co-principals,
accomplices and accessories. o But Sex on different occasions constitutes
different and separate crimes.
2. Subsequent Forgiveness by the Wife Upon the
Husband which maybe given before, during the o Where there are two or more rapists who
case, or after conviction of the husband EXCEPT acted in conspiracy, all are liable for each of
when the marriage is void ab initio. This is an rape committed by each one of them and for
exception to the rule that forgiveness by the those committed by their co-accused. Thus if 3
offended party shall not extinguish the penal action raped the same girl, all will be liable for 3
in crimes against person. separate rapes.

Q: Is there Marital Rape or, can the husband be o If there be several victims, there are as many
guilty of raping the wife? rapes corresponding to the number of victims

A: (Personal opinion) No, as to rape in the  For purposes of conviction the following principle is
traditional concept. observed:

1. The marital union maintains the husband‘s right o A rape charge is easy to make, difficult to
to the physical access to the wife ie. Right of prove but more difficult for the accused,
Consortium based on connubial relations though innocent, to disprove.
2. There was prior marital consent as contained in
that absolute answer to the question: ― Do you o In view of the intrinsic nature of rape where
give yourself to him as your lawful husband?‖ generally only two persons are involved, the
(Note also the Biblical admonition that Woman testimony of the complainant must be
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should submit to their husbands)
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scrutinized with extreme caution (HELL HATH 5. Trespass to dwelling (Art. 280);
NO FURY LIKE A WOMAN SCORNED). 6. Other forms of trespass (Art. 281);
7. Grave threats (Art. 282);
o The evidence for the prosecution must stand 8. Light threats (Art. 283);
or fall on its own merits and cannot draw 9. Other light threats (Art. 285);
strength from the weakness of the defense 10. Grave coercions (Art. 286);
evidence 11. Light coercions (Art. 287);
12. Other similar coercions (Art. 288);
13. Formation, maintenance and prohibition of
EVIDENCE WHICH MAY BE ACCEPTED IN THE combination of capital or labor through violence or
PROSECUTION OF RAPE: threats (Art. 289);
1. Any physical overt act manifesting resistance 14. Discovering secrets through seizure of
against the act of rape in any degree from the correspondence (Art. 290);
offended party; or 15. Revealing secrets with abuse of office (Art. 291);
2. Where the offended party is so situated as to 16. Revealing of industrial secrets (Art. 292).
render him/her incapable of giving his consent
Article 267. Kidnapping and Serious Illegal
Indemnity: for the fact of rape alone Detention

 Simple rape is P50,000.00 for each and every Introduction: Art. 267 lays down the penalty for
conviction for rape, for each and every accused kidnapping and enumerates when the detention
 Qualified: P75,000.00 becomes serious. The concept is of American origin
 This is in addition to moral damages which has
been set at P50,000.00 and P75,000.00 Elements
respectively for simple and qualified rape, without
need of evidence since, when a woman is raped, it 1. Offender is a private individual;
is presumed she underwent moral suffering 2. He kidnaps or detains another, or in any other
 In incestuous rape, the court pegged P25,000.00 manner deprives the latter of his liberty;
―to set an example for the public good‖ 3. The act of detention or kidnapping must be illegal;
4. In the commission of the offense, any of the
following circumstances is present:
TITLE IX. a. The kidnapping lasts for more than 3 days;
CRIMES AGAINST PERSONAL LIBERTY b. It is committed simulating public authority;
AND SECURITY c. Any serious physical injuries are inflicted upon
the person kidnapped or detained or threats to
Introduction: These crimes are committed principally kill him are made; or
by private persons. If a public officer participates, the d. The person kidnapped or detained is a minor,
crime must come from a private person as the principal female, or a public officer.
accused, otherwise the crime would be a crime against
the fundamental laws of the state.  To kidnap is to forcibly take a person from he has a
right to be (such as his place of work, residence,
Crimes against liberty rest and recreation, school, street, park or public
place) and bring him to another. The taking is
1. Kidnapping and serious illegal detention (Art. 267); always without the consent of the victim.
2. Slight illegal detention (Art. 268); Kidnapping need not be followed by detention as
3. Unlawful arrest (Art. 269); where the talking was only to briefly restrain the
4. Kidnapping and failure to return a minor (Art. victim. It is usually for ransom.
270);
5. Inducing a minor to abandon his home (Art. 271);  To ―detain‖ is to deprive a person of his liberty or
6. Slavery (Art. 272); restrict his freedom of locomotion or movement,
7. Exploitation of child labor (Art. 273); and may not involve a kidnapping. This includes
8. Services rendered under compulsion in payment of the following situations:
debts (Art. 274). a). Lock up or actual physical deprivation of the
personal liberty by confinement in an
Crimes against security enclosure
b) Immobilizing the victim though he has not been
1. Abandonment of persons in danger and placed in an enclosure
abandonment of one's own victim (Art. 275); c). by placing physical, moral or psychological
2. Abandoning a minor (Art. 276); restraint on his freedom of locomotion or
3. Abandonment of minor by person entrusted with movement
his custody; indifference of parents (Art. 277);
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4. Exploitation of minors (Art. 278);
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Example: The Mayor confronted a DENR Ransom is any consideration, whether in the form of
Inspection team, calls for reinforcements, money, articles of value, or services or favors, for the
refuses their request to leave, orders them to release of a person.
go with him and allows them to leave only the
following day. It need not be given or received it being sufficient that
Held: ―The curtailment of the victim‘s liberty a demand was made
need not involve any physical restraint upon
the victim‘s persons. If the acts and actuations Examples: (i).The son of the Judge will be released if
of the accused produced such fear in the mind the Judge dismisses a case or allows the bail to be
of the victim sufficient to paralyze the latter, to reduced (2) The grandson of a physician will be
the extent that he victim is compelled to limit released if the physician will perform an operation on
his own actions and movements in accordance the mother of a friend of the kidnappers (3) The wife
with the wishes of the accused, then the victim of a politician will be released if the husband makes a
is detained against his will‖ ( Aslega vs. public apology (4) The pupils of a school will be
People, Oct. 01, 2003) released if the school lowers its tuition fees.

d). The detention may either be Serious Art. 267 or New Special Complex/Composite Crimes
Slight ( Art. 268) 1. Kidnapping/Serious Illegal Detention with
Homicide
Persons Liable. a). The person killed is the victim of the kidnapping
or illegal detention. If the person killed is a
1. The offender is a private person and not a Public third person, such as the bodyguard, the
Officer else the crime is Arbitrary Detention, unless driver or an innocent person, it is article 48
the latter has no duty to arrest or order the which applies and the crime is an ordinary
detention of another. complex crime.
b). Hence previous decisions which say the crime
2. One who furnished the place of detention is liable is either murder or kidnapping depending on
as an accomplice unless he was in conspiracy with the intention of the accused do not anymore
the other accused. hold water. It is enough the victim was killed
whether the original intention was to kill or to
The circumstances which make the detention detain. Regardless of the original intention.
serious are: c). There is no kidnapping with murder but only
murder where a 3-year old child was gagged,
1. The kidnapping or detention shall have lasted more hidden in a box where it died and ransom
than 3 days, regardless of who the offended party asked. The ransom is only a diabotic scheme
is; of the accused to murder the child, to conceal
his body and demand money before the
2. It is committed by simulating public authority; discovery of the cadaver. (San Beda)
Example: a person represents himself to be a police
investigator who tells victim he will bring him to 2. Kidnapping/Serious Illegal Detention with
the police station, but brings him elsewhere Rape.

3. If serious physical injuries were inflicted or threats The victim of rape is the victim of kidnapping and
to kill were made; not a third person else the rape is a separate
offense
4. If victim is a minor, female or public officer, no
matter how long or how short the detention is. Includes a situation where several rapes are
In case of minors, the kidnapper should not be the committed
parent.
The taking way must not be with lewd designs
QUALIFYING CIRCUMSTANCES: DEATH PENALTY
IS IMPOSED The original idea was not to rape.
1. Purpose is to extort ransom
2. If victim is killed, raped or tortured as a 3. Kidnapping /Serious Illegal Detention with
consequence Physical Injuries as a result of torture or
dehumanizing acts
Kidnapping for Ransom
Q: A Woman was kidnapped, ransom was demanded,
The victim is held hostage until demands of the and then later was killed. What crime was committed?
kidnapper are met. The penalty is death. A: Kidnapping for Ransom with Murder. ( PP. vs.
Ramos: Oct. 12, 1998)
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Q: Suppose the victim was also raped before being
killed? 1. Offender is a private individual;
A: It is still Kidnapping for ransom with Murder. The 2. He kidnaps or detains another, or in any other
rape will be considered as an aggravating manner deprives him of his liberty;
circumstance. 3. The act of kidnapping or detention is illegal;
4. The crime is committed without the attendance of
Q: The robbers held hostage the customers of a bank any of the circumstances enumerated in Article
as human shield against the police. Are they also liable 267.
for detention?
A: The detention in robbery is absorbed unless the Special Mitigating Circumstances
victims are detained to compel delivery of money
(1). If the victim is released within 3 days
Distinguished from Other Crimes Which Involved (2) without the purpose having been attained and
Detention and Taking Away of a Person (3) before institution of criminal proceedings. Note that
this special mitigating does not apply if the
1. From coercion- where there is no intent to detain detention is serious.
or deprive a person of his liberty.
The 3 must concur.
Examples:
a). dragging a woman to a waiting car but was let If the victim is female, the detention is under 267,
go due to her remonstrations or because she voluntary release is not mitigating.
was able to wrest herself free. Thus if the woman victim was released after one
b). a debtor was forcible taken from his store and hour, the same is not mitigating since the detention
brought to a house to compel him to pay is already serious.
c). A woman was taken to a house and kept there
in order to break her will and agree to marry Article 269. Unlawful Arrest
the accused
d). Where a woman was seen dragging along a Concept: It is the crime committed by any person,
missing boy who was crying and refusing to go whether a private person or public officer, who arrest
with her or detains a person without reasonable ground
therefore, for the purpose of delivering him to the
2. Abduction- where the taking away of the woman proper authorities.
against her will (Forcible Abduction) or by artifice
upon a minor girl (Consented Abduction)) was with Elements
lewd designs, which was present at the very
moment of the taking away, as it was the purpose 1. Offender arrests or detains another person;
thereof. 2. The purpose of the offender is to deliver him to the
proper authorities;
3. Vs Illegal Detention 3. The arrest or detention is not authorized by law or
there is no reasonable ground therefor.
ILLEGAL ARBITRARY
DETENTION DETENTION  The public officer is one who has no power to
Committed by a Committed by a arrest or order the detention of another, else it is
private individual public officer or arbitrary detention.
who unlawfully employee who  The situation is that the arrest is not a valid
kidnaps, detains or detains a person warrantless arrest but the victim is brought before
otherwise deprives a without legal ground the police or prosecutor‘s office or court, for the
person of liberty. purpose of filing charges against the victim.
Crime is against Crime against the  If the purpose is otherwise, the crime may be
personal liberty and fundamental law of detention or coercion or abduction.
security the State  The term is not ―Illegal Arrest‖.
 This maybe complexed with Incriminatory
Machination. E.g. A person placed a knife in the
Article 268. Slight Illegal Detention bag of another and then arrests him and brings
him to the police station
Concept: The crime committed by a private person  No period of detention is fixed by law under Art.
who detains another without the attendance of any of 269.
the circumstances under Article 267. The penalty
therefore is the same penalty imposed upon one who DELAY IN THE UNLAWFUL
furnished the place of detention. DELIVERY OF ARREST (Art. 269)
DETAINED PERSONS
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Elements (Art. 125)
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Detention is for some Detention is not 1. Slavery Proper under Art. 272.
legal ground authorized by law
Concept: The crime committed by a person who
Crime is committed by Committed by making shall purchase, sell (kidnap) or detain a human
failing to deliver such an arrest not being for the purpose of enslaving him.
person to the proper authorized by law
judicial authority within Elements
a certain period
1. Offender purchases, sells, kidnaps or detains a
Article 270. Kidnapping and Failure to Return A human being;
Minor 2. The purpose of the offender is to enslave such
human being.
Concept: The crime committed by a person who as
entrusted with the custody of a minor person who shall  If the purpose is to assign the person to some
deliberately fail to restore the latter to his parents or immoral traffic, the penalty is higher. This is
guardians referred to as White Slavery (Why the term
white? To distinguish it from the slavery of
Elements Black Africans the purpose of which is to make
them work as field hands, laborers, house-
1. Offender is entrusted with the custody of a minor helps, against their will and without
person (whether over or under seven years but compensation)
less than 21 years of age);
2. He deliberately fails to restore the said minor to his Note: There are two kinds of White Slavery or
parents or guardians. ―pimping‖ (supplying women as partners for
sex)
 The term: Kidnapping‖ is not accurate since the 1. That under Article 272 where the accused is
gist of the offense is the failure to return the minor not engaged in prostitution
to his parents or guardians 2. That under Article 341 where the accused is
 The accused maybe a parent. engaged in the business of prostitution
 Example, a wife is separated from the husband.
The husband was awarded custody of their child.  There is a Flaw in the law: If the detention is
The wife was allowed to bring the child to her not to enslave or to assign to immoral traffic,
house on a Friday but to return him on Monday. the crime is serious illegal detention
She failed to do so. ‖ punishable by reclusion perpetua whereas, if
the purpose is to enslave the woman the
Article 271. Inducing A Minor to Abandon His penalty is prision mayor, and if it white slavery
Home the penalty is prision mayor maximum

Concept: The crime committed by any person who 2. Exploitation of Child Labor under Article 273
shall induce a minor to abandon the home of his
parents or guardians or persons entrusted with his Concept: The crime committed by any person who
custody. This includes a parent. shall retain a minor in his service as payment of the
indebtedness of the minor‘s ascendant, guardian or
Elements person entrusted with the custody of the minor.
Note: The accused is a creditor
1. A minor (whether over or under seven years of
age) is living in the home of his parents or Elements
guardians or the person entrusted with his
custody; 1. Offender retains a minor in his services;
2. It is against the will of the minor;
2. Offender induces said minor to abandon such 3. It is under the pretext of reimbursing himself
home. of a debt incurred by an ascendant, guardian
or person entrusted with the custody of such
 The Home includes the temporary boarding house minor.
or dorm .
 There must be no force employed threat or 3. Services Rendered Under Compulsion In
intimidation but through the use of false Payment Of A Debt (Art 274)
representations. Such as making him believe to
become a star in Manila. Concept: The crime committed by a creditor who
compels the debtor to work for him as household
Crimes Involving Involuntary Servitude servant or farm laborer. If in some other capacity
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as office worker for example, the crime is coercion.
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forced labor, slavery, involuntary servitude or debt
Elements bondage

1. Offender compels a debtor to work for him, Debt bondage- the act of pledging of personal
either as household servant or farm laborer; services or labor by the debtor or of any person
2. It is against the debtor‘s will; under his control as security or payment of a
3. The purpose is to require or enforce the debt when the length and nature of services is
payment of a debt. not clearly defined or when the value of the
services as reasonable assessed is not applied
Q: What are the crimes committed by a Creditor in toward the liquidation of the debt
relation to the debt owed him?
2. To introduce or match for money or profit or any
A: They are: other consideration, any person or Filipina woman
1. Exploitation of Child labor (Art. 273) to a foreign national for the same purposes or
2. Services Rendered Under Compulsion As exploitation.
Payment Of Debt (Art. 274)
3. Light Coercion ( Art. 287) seizing, by 3. To offer or contract marriage, real or simulated, for
violence, a property of a debtor to apply said purposes
as payment of a debt
4. To undertake or organize sex tours and travel plans
R.A. 9208
THE ANTI TRAFFICKING IN PERSONS ACT 5. To maintain or hire a person to engage in
OF 2003. prostitution or pornography

The provisions of Articles 271 to article 274 6. To adopt or facilitate the adoption of persons for said
must be read in the light of the provisions of this law. purposes

Per Section 3 Trafficking In Persons means: 7. To recruit, hire, adopt or abduct, by any unlawful
means, for the purposes of removal or sale of
1. The recruitment, transportation, transfer or organs of a person
harboring, or receipt of persons with or without the
victim‘s consent or knowledge, within or across 8. To recruit, transport or adopt a child to engage in
national borders by means of threat or use of armed activities
force, or other forms of coercion, abduction, fraud,
deception, abuse of power or of position, taking Crimes Against Security
advantage of the vulnerability of the person, or, the
giving or receiving of payments or benefits to Crimes Involving Abandonment of Persons
achieve the consent of a person having control
over another person for the purpose of exploitation 1. Abandonment of Persons (Art. 275)
which includes at a minimum, the exploitation or 2. Abandonment of Minors
the prostitution of others or other forms of sexual a). By one with temporary custody (Art. 276).
exploitation, forced labor or services, slavery, b). By one entrusted with the education or care
servitude or the removal or sale of organs. (Art. 277)
c). Indifference of Parents (Art. 277)
 It is any form of unlawful activity the subject
of which is the (a) any form of sexual Abandonment of Persons (Art. 275)
exploitation of a person (b) forced labor or
services or slavery (c) servitude (d) removal or 1. Of Persons Found in Danger:
sale of human organs
Act punished: Failing to render assistance to any
2. The recruitment, transportation, transfer, or person whom the offender finds in an uninhabited
harboring or receipt of a child for the purpose of place wounded or in danger of dying when he can
exploitation shall also be considered as ―trafficking render such assistance without detriment to
in persons‖ even if it does not involve any of the himself, unless such omission shall constitute a
means set forth in the preceding paragraph more serious offense.

Acts punished: Elements

1. To recruit, transport, transfer, harbor, provide, or 1. The place is not inhabited;

receive a person by any means for the purpose of 2. Accused found there a person wounded or in
prostitution, pornography, sexual exploitation, danger of dying;
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3. Accused can render assistance without 3. He abandons such child;
detriment to himself; 4. He has no intent to kill the child when the
4. Accused fails to render assistance. latter is abandoned.

Example: The housemaid brought the child to a

Note: This is a crime by omission but there are park but left him there to go window shopping.
two legal excuses or justifications which maybe
defenses: If there is intent to kill and the child dies, the crime
is murder, parricide or infanticide. If the child does
(i). The place must be an ―Uninhabited place‖ not die, it is in attempted or frustrated stage.
which refers to places where there is remote
possibility of the wounded or dying person In this case intent to kill is not presumed. Such
receiving help form anyone. Hence one who presumption is applicable only in crimes against
fails to help a wounded person in the market persons.
alley is not liable.
Circumstances qualifying the offense
(ii) The accused himself would be placed in an
equal or more serious danger if he renders 1. When the death of the minor resulted from
assistance such abandonment; or
2. If the life of the minor was in danger because
2. Of one‟s own victim in an accident of the abandonment, like abandoning him on a
busy street
Act punished: Failing to help or render assistance
to another whom the offender has accidentally 2. By a person entrusted with the education or
wounded or injured; /rearing care (Art. 277)

 The term ―accident‖ is that which constitute Act punished: Delivering a minor to a public
the exempting circumstance of accident under institution or other persons without the consent of
Par. 4 of Article 12 and not to those arising the one (usually parent) who entrusted such minor
from negligence or imprudence. to the care of the offender or, in the absence of
that one, without the consent of the proper
 Thus if one runs over a person because of authorities.
loose break and he abandons his victim, the
abandonment is absorbed in the crime of Elements
reckless imprudence resulting in homicide. But
if a hunter tripped in a forest causing his gun 1. Offender has charge of the rearing or
to fire and his companion is hit and he education of a minor;
abandons the wounded man, the hunter is 2. He delivers said minor to a public institution or
liable for abandonment. other persons;
3. The one who entrusted such child to the
 Failure to deliver an abandoned child offender has not consented to such act; or if
the one who entrusted such child to the
Act punished: By failing to deliver a child, under offender is absent, the proper authorities have
seven years of age, whom the offender has found not consented to it.
abandoned, to the authorities or to his family, or
by failing to take him to a safe place. Note: The purpose is to evade the responsibility of
rearing the minor or educating him
The child under 7 must be found in an unsafe
place. Example: The uncle to whom the child was left by
the parents brings the child to a foster home
It is immaterial that the offender did not know that
the child is under 7. 3. Indifference of parents

Abandonment of Minors Act punished: Neglecting his (offender‘s) children

by not giving them the education which their
1. By one with custody of a child below 7 years station in life requires and financial condition
of age but without intent to kill (Art. 276) permits.

Elements ELEMENTS OF INDIFFERENCE OF PARENTS:

1. That the offender is a parent
1. Offender has the custody of a child; 2. That he neglects his children by not giving
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3. That his station in life requires such education
and his financial condition permits it 1. Offender is a private person;
4. Failure to give education must be due to 2. He enters the dwelling of another;
deliberate desire to evade such obligation 3. Such entrance is against the latter‘s will.

 The liability of a parent does not depend on Trespass to Dwelling - This connotes that a stranger
whether the other parent is also guilty of i.e. one who is not an occupant, actually enters the
neglect. The irresponsible parent cannot dwelling of another against the will of the owner or
exculpate himself from the consequences of lawful occupant, whether express or implied.
his neglect by invoking the other parent‘s
faithful compliance with his/her parental duties Dwelling - the place where a person habitually stays
 The charge cannot however be made in for rest, comfort and peace of mind.
relation to section 10 (a) of R.A. 7610 (i.e. a). It includes the basic structure and the
Child Abuse) (De Guzman vs. Perez 496 SCRA dependencies. In trespass and violation of
474) domicile, dwelling is broader as compared to
dwelling as an aggravating circumstance.
b). It may be owned by the victim or is merely leased
ABANDONMENT OF ABANDONMENT OF by him or he is a guest or works thereat as a stay-
MINOR BY MINOR (ART. 276) in.
PERSONS c). The occupant need not be present at the time of
ENTRUSTED WITH entry
CUSTODY (ART.
277)  The accused is a private person else the crime is
The custody of the The custody of the Violation of Domicile.
offender is specific, offender is stated in  In Qualified Trespass, the entry is by means of
that is , the custody general violence or intimidation
for the rearing or
education of the o The violence or intimidation may be either
minor immediately before, during or immediately
Minor is under 21 yrs. Minor is under 7 years of after the accused has gained entry
of age age
o It may be against persons or against things
Minor is delivered to a Minor is abandoned in
public institution or such a way as to o The prohibition may be express or implied, in
other person deprive him of the care any form, and made at any time, not
and protection that his necessarily at the time of entry.
tender years need
o Examples: (i) Pushing aside the victim who is
Article 278. Exploitation of Minors blocking the door (ii) cutting the string used
as temporary lock (iii) removing the bolt (iv)
Note: Article 278. Exploitation of Minors, involving kicking the door open
employing minors in activities inimical to them (like in
circuses) is now superseded by R.A. 7610 (The  If there is no violence it is simple trespass
Child Abuse Law)
o This includes surreptitious entry
The Crime of Trespass
(Unauthorized Entry) o When the accused entered by pushing open a
door with his finger, the crime is simple
Kinds: trespass. But if upon entering an occupant
pushes him out and the accused boxed, kicked
1. Trespass to dwelling which, depending upon the or fought against the occupant, the crime is
mode of entry, may be either: (a). Simple which is qualified trespass
entry without violence or (b) Qualified which is
entry with violence o A consented entry does not become
unconsented thereby giving rise to trespass
2. Trespass to Estate or to Property just because the entrant performed an act
whereby he is ordered to leave but he refused.
Article 280. Qualified Trespass to Dwelling
Example: The maid allowed the accused to
Elements enter. When the father learned his intention
was to court the daughter, he got mad,
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The accused refused not until he can see the 3. The prohibition to enter is manifest (such as a
daughter. Before being forcibly pushed out, the sign, or perimeter fence even if only a strand of
accused answered back and argued with the barbed wire);
father. Did the accused commit trespass? 4. The trespasser has not secured the permission of
Answer: No, because he was allowed to enter the owner or the caretaker thereof.
by a lawful occupant.
QUALIFIED OTHER FORMS OF
But if the father had previously already told TRESPASS TO TRESPASS (ART.
the accused he was not welcome into his DWELLING (ART. 281)
house and instructed the maid not to let the 280)
accused enter but the maid later allowed the Offender is a private The offender is any
accused to enter, the accused is guilty of person person
trespass. Offender enters a Offender enters closed
dwelling house premises or fenced
 The entry must not be to commit a more serious estate without securing
crime inside the dwelling because: the permission of the
o The entry maybe absorbed as an element of owner or caretaker
the crime, such as in robbery thereof
o It may constitute the aggravating circumstance Place entered is Prohibition to enter
of unlawful entry or dwelling, as when the inhabited must be manifest
accused entered the dwelling in order to kill or Act constituting the It is the entering the
injure an occupant. crime is entering the closed premises or the
o Where a person was found inside a dwelling, dwelling against the fenced estate without
and upon discovery he kills an occupant, there will of the owner securing the permission
are two separate crimes: (i) trespass and (ii) of the owner or
homicide or murder caretaker thereof
Prohibition to enter is Prohibition to enter
 The accused may be the owner of the building so express or implied must be manifest
long as the occupancy was voluntarily given to the
victim. Example: the lessee may file Trespass Premises – signifies distinct and definite locality. It
against the lessor who enters the leased premises may mean a room, shop, building or definite area, but
against the will of the lessee. in either case, locality is fixed.

 Justified trespass - If the entry is: Note: This includes unauthorized entry into commercial
(a) to prevent serious harm to himself, to an establishments and private offices. This does not
occupant or to a third person include cars.
(b). to render some service to humanity or justice
(c). in case of public houses while they are open Threats and Coercions

Example: X snatched the wallet of Y who gave Introduction: These are considered as crimes against
chase. X ran inside an apartment and Y followed security because they disturb the peace of mind of a
inside and collared the snatcher. X is liable for person.
trespass but Y is not.
Threats
Example: A traveler climbed through a window and
entered a house the occupants of which are Concept: Declarations of an intention to inflict a future
absent. The traveler had no place to sleep and a wrong upon the person, honor or property of another
typhoon was raging. He is not liable for trespass. or the latter‘s family. The acts or words must be so
efficacious (must be serious, if not unjust vexation) as
Article 281. Other forms of trespass to amount to moral pressure and thus produces fear, or
mental disturbance.
Trespass to Fenced Estate or Closed Premises
(Trespass to Property) A. Grave Threats under Article 282 - the act
threatened to be done is a crime e.g. to kill, to
Elements burn or destroy property, to box or to inflict injuries

1. Offender enters the closed premises or the fenced Acts punished:

estate of another;
2. The entrance is made while either of them is 1. Threatening another with the infliction upon
uninhabited; his person, honor or property or that of this
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condition, even though not unlawful, and the
offender attained his purpose 1. Where the act to be done does not amount to a
crime, but it disturbs another. This may be
Qualifying Circumstance: subject to a condition or not. (Article 283)
If threat was made in writing or through a
middleman. Elements

ELEMENTS OF GRAVE THREATS WHERE 1. Offender makes a threat to commit a

THE OFFENDER ATTAINED HIS wrong;
PURPOSE: 2. The WRONG DOES NOT CONSTITUTE A
1. That the offender threatens another CRIME;
person with the infliction upon the latter‘s 3. There is a demand for money or that
person, honor or property, or upon that of other condition is imposed, even though
the latter‘s family, of any wrong. not unlawful;
2. That such wrong amounts to a crime. 4. Offender has attained his purpose or, that
3. That there is a demand for money or that he has not attained his purpose.
any other condition is imposed, even
though not unlawful. Examples:
4. That the offender attains his purpose. (a). ―I will fail you if you will not introduce me
to your sister‖
If the condition is money, the penalty is higher (bi). ― I will report your absences to your
father if you do not let me copy your
2. Making such threat without the offender answers‖
attaining his purpose; (c). ―I will tell your boyfriend about your
3. Threatening another with the infliction upon dating other men‖
his person, honor or property or that of his
family of any wrong amounting to a crime, the 2. Other Light Threats (Article 285)
threat not being subject to a condition.
Acts punished
ELEMENTS OF GRAVE THREATS NOT
SUBJECT TO A CONDITION: 1. Threatening another with a weapon, or by
1. That the offender threatens another drawing such weapon in a quarrel, unless
person with the infliction upon the latter‘s it be in lawful self-defense;
person, honor, or property, or upon that 2. Orally threatening another, in the heat of
of the latter‘s family, of any wrong. anger, with some harm constituting a
2. That such wrong amounts to a crime. crime, without persisting in the idea
3. That the threat is not subject to a involved in his threat;
condition. 3. Orally threatening to do another any harm
not constituting a felony.
Kinds of grave threats:
Threats vs Robbery
1. Conditional: the accused makes a demand so
that he will not do what he threatened, such If there is an intimidation and threat to inflict an injury
as a demand for money or another condition is coupled with a demand for money, when is it threats
which may not be unlawful. E.g. ―I will stone and when is it robbery?
your car if you will fail me‖. 1. In threats, the harm/injury is still to be inflicted in
the future (future harm) whereas in robbery the
2 Unconditional- there is simply a declaration to harm is to be inflicted right then and there, or that
do wrong or harm amounting to a crime. E.g.: it is actual and immediate ( immediate harm)
―I am tired of looking at your face. I might as 2. In threats, the harm maybe committed upon the
well kill you‖ person or honor of the victim or that to his family,
or to his property whereas in robbery the harm is
Note: But if the threat was made in the heat of to be inflicted does not include the honor of the
anger and the accused did not persist, it is victim
Light Threats. E.g: In a heated quarrel the 3. In threats the doing of the harm may be
accused uttered: ― Uubusin ko kayong communicated through an intermediary whereas in
magpapamilya‖ but did not do anything more. robbery the doing of the harm is always
If he however gets a weapon and moves communicated directly and personally to the victim
towards his opponent, the crime is grave 4. In threats gain is not immediate whereas in
threats. robbery the gain is immediate.
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B. Light Threats which may either be:
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Threats as constituting blackmailing - when the  Examples: Applying force, violence, or intimidation
doing of a wrong which does not constitute a crime in order to:
(Light threat) is subject to a demand for money or 1. Compel a suspect to make a confession
other valuable considerations. 2. Compel the driver to change course
3. Stop a person from making a construction
Examples: 4. Prohibit a student from leaving the classroom
1. ― I will report your cheating to the Dean unless you 5. Force a tenant into leaving the leased premises
take charge of my back rentals‖ coupled with padlocking the door
2. ―I will inform your best friend that you are dating 6. Compel a person to board a vehicle even if
her boy friend. However, If you let me have your after some distance she was able to break free
bracelet, then I will not say anything‖. and ran away
7. Break a girl‘s spirit so that she will agree to
NOTE; there are two forms of blackmailing. First is marry the accused, even if she was taken from
light threats. The second is under the law on libel. her house and brought elsewhere.
8. Take back or recover one‘s own property from
 Threats maybe made in any form: orally or in another even if said property has been
writing or by deeds and actions; personally or previously unlawfully taken away (Note that
through an intermediary, or via modern facilities of this is not an impossible crime of robbery)
communications, such as by texting or E-mail. The
crime is consummated once the threat is made  The penalty is higher if the coercion relates to:
known to the person threatened, 1. the exercise of suffrage, as preventing a voter
 Threats are absorbed when they are made in form voting
connection with another crime, or are used as the 2. exercise of religion, such as pointing a gun at
means to commit another crime. Thus the threat to another to prevent him from making the sign
kill is absorbed in armed robbery, as the threat to of the Cross
injure is absorbed in rape.
 Bond for Good Behavior: this is the amount of Distinguished from other crimes:
money to be deposited by the accused charged
with threats to ensure that he shall not molest the A. From robbery: where property is taken. It is
person threatened. If he refuses to put up the coercion if the taking is not with intent to gain but
Bond for Good behavior, he shall be sentenced to to prevent the doing of an act Example: The
destierro. This is separate and different from the accused took away the bolo of another to prevent
bond which the accused is require to put up in the latter from continuing to cut down the pine
order not to be detained pending trial. trees.

WHEN A PERSON IS REQUIRED TO GIVE B. From threats: if the harm to be done is direct and
BAIL BOND (Art 284) immediate, it is coercion but if the harm is to be
1. When he threatens another under the inflicted later, it is threats.
circumstances mentioned in Art. 282. 1. ― I will kick you if you will not leave this room‖.
2. When he threatens another under the This is coercion as the kicking is to be done
circumstances mentioned in Art. 283. right then and there. It is actual and imminent.
2. ― If you will not leave this room, I will kick you‖.
Coercion This is threat as the kicking will be later.

Concept: When a person takes the law into his own C. From Illegal Detention: In coercion the intention
hands i.e in that he is without authority of law or has is not to deprive a person of his liberty or to
no right to act, and by means of violence, threat or restrain his liberty. Example: A guest who refuses
intimidation, he either: to vacate his room for violations of hotel rules even
after he was ordered to leave, was forcibly taken
1. Compels another to do something against his will, out from the room and guarded in the Office of the
whether it be right or wrong, or Hotel Security Force. He was released only after
all his things were taken out and the room was
2. Prevents another from doing something not locked. The crime is coercion not detention.
prohibited by law. If the act prevented is prohibited
by law, the accused is not violating but Coercion is either:
complementing the law.
A. Grave Coercion if there is use of force, violence, or
 The violence must be actual and immediate, else intimidation (Article 286)
(if the violence is a future harm), it is threat
Acts punished
 The purpose of the accused need not be attained
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1. Preventing another, by means of violence,  The same act may constitute either slight
threats or intimidation, from doing something physical injuries, acts of lasciviousness,
not prohibited by law; slander by deed, or unjust vexation,
2. Compelling another, by means of violence, depending upon the intention of the
threats or intimidation, to do something accused. Example: holding the testicles of
against his will, whether it be right or wrong. a man or embracing a woman may give
rise to several crimes.
Elements  For the crime of unjust vexation to exist, it
is not necessary that the offended party
1. A person prevented another from doing be present when the crime was committed
something not prohibited by law, or that he by the accused - it is enough that the
compelled him to do something against his offended party was embarrassed,
will; be it right or wrong; annoyed, irritated, or disturbed when
2. The prevention or compulsion be effected by he/she learned of the overt acts of the
violence, threats or intimidation; and accused. ( Maderazo vs. PP 503 SCRA
3. The person that restrained the will and liberty 234)
of another had not the authority of law or the
right to do so, or in other words, that the 3. Other similar coercions (under Article
restraint shall not be made under authority of 288).
law or in the exercise of any lawful right.
Concept: Crime by any person who shall force
B. Light Coercion which may also be either: or compel his laborer or employee to: (a)
purchase merchandise or commodity of any
1. Coercion by a creditor (Article 287 par 1) - kind sold by said employer or (b) accept
the crime committed by a creditor who, with tokens or objects, other than the legal tender,
violence, shall seize anything belonging to his as payment of wages, unless expressly
debtor for the purpose of applying the same to requested by the employee. Example:
the payment of his debt compelling wages in the form of casino chips,
sweepstake tickets, lotto tickets, or goods or
Elements merchandise
1. Offender must be a creditor;
2. He seizes anything belonging to his Acts punished:
debtor;
3. The seizure of the thing be accomplished 1. Forcing or compelling, directly or
by means of violence or a display of indirectly, or knowingly permitting the
material force producing intimidation; forcing or compelling of the laborer or
4. The purpose of the offender is to apply employee of the offender to purchase
the same to the payment of the debt. merchandise of commodities of any kind
from him;
 If the purpose is not to apply as payment
for the debt, the crime is robbery Elements:
 If there was no violence employed, but
the property was taken without the a. Offender is any person, agent or
knowledge of the debtor, the crime should officer of any association or
be theft corporation;
 If the taking was by deceit or b. He or such firm or corporation has
misrepresentation, as when the creditor employed laborers or employees;
says he will just borrow the property but c. He forces or compels, directly or
applied it to the debt, the crime is unjust indirectly, or knowingly permits to be
vexation. forced or compelled, any of his or its
 If the creditor pretends there is a debt to laborers or employees to purchase
be paid which was why the thing was merchandise or commodities of any
given, when truth there is no debt, the kind from him or from said firm or
crime is estafa by means of deceit corporation.

2. Unjust Vexation (Art 287 par 2) - any 2. Paying the wages due his laborer or
conduct which annoys, vexes, disturbs or employee by means of tokens or object
irritates another, provided there was no force, other than the legal tender currency of the
threat, violence or intimidation. Philippines, unless expressly requested by
such laborer or employee.
 This is always in the consummated stage
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 This is a crime of last resort Elements:
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1. Offender is a private individual or even a
a. Offender pays the wages due a public officer not in the exercise of his official
laborer or employee employed by him function;
by means of tokens or object; 2. He seizes the papers or letters of another;
b. Those tokens or objects are 3. The purpose is to discover the secrets of such
other than the legal tender currency another person;
of the Philippines; 4. Offender is informed of the contents of the
c. Such employee or laborer does not papers or letters seized.
expressly request that he be paid by
means of tokens or objects.  The penalty depends on whether the accused
revealed the contents or not.
Article 289. Formation, Maintenance, and  The crime is committed even if it turns out the
Prohibition of Combination of Capital or Labor papers are blank
through Violence or Threats  Persons exempt: (i) parents, guardians, or persons
in custody of minors in respect to the letters of
Elements said minors and (b) spouses with respect to the
correspondence of either of them. However, in
1. Offender employs violence or threats, in such a Zulueta vs. Zulueta, it was held that a married
degree as to compel or force the laborers or person has a right to the privacy of letters in his
employers in the free and legal exercise of their private office and if these are seized by his spouse
industry or work; without his consent, the documents are
2. The purpose is to organize, maintain or prevent inadmissible as evidence.
coalitions of capital or labor, strike of laborers or  If the seizure is not to know the contents but to
lockout of employers. prevent the addressee from receiving the letter, the
crime may be malicious mischief.
Discovery and Revelation of Secrets  According to Ortega, it is not necessary that the
offender should actually discover the contents of
Introduction. These are crimes against personal the letter. Reyes, citing People v. Singh, CA, 40
security because they likewise result to irritation, OG, Suppl. 5, 35, believes otherwise.
consternation and similar mental disturbance.

 These crimes may be referred to as involving

the revelation of private secrets by private Article 291. Revealing Secrets with Abuse of
persons. The secrets involved are private Office
secrets in that they do not pertain to matters
affecting the government and only private  This is the crime committed by a manager,
persons are the accused. However, public employee, or servant, who in such capacity, learns
officers are also liable if they did not acquire the secrets of his principal or master, and shall
the secrets in their official capacity. reveal such secrets.
 The constitution protects several Zones of  Secrets refer to any matter which ought not to be
Privacy one of which is the privacy of known. It need not destroy the reputation of the
correspondence and communication. These principal. Example: the fact that the husband and
crimes intrude into this zone. wife do not sleep together; or that the husband is
 They are classified into: irresponsible.
 If the secrets pertain to illicit matters, such as the
1. Discovering secrets through seizure of principal being a jueteng lord, there is no liability if
correspondence (Art. 290) the revelation is made to the proper authorities.
2. Reveling Secrets with abuse of office (291)
3. Revelation of industrial secrets ( Art. 292)
Question & Answer

Article 290. Discovering Secrets through Seizure Q: Why is there no corresponding penal provision if
of Correspondence they were the masters who reveal the secrets of their
employees or servants?
Concept:
Article 292. Revelation of Industrial Secrets
The gist of the crime is the act of seizing the papers or (repealed)
letters of a private individual in order to discover the
contents thereof. Note: Art. 292 is already superseded by the
Intellectual Property Code
Elements
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Title X.
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Crimes Against Property 29. Destroying or damaging statues, public
monuments or paintings (Art. 331).
Major Classification:
Article 293. Who Are Guilty of Robbery
1. Robbery: (Robbery In General)
a) With Violence or Intimidation Against
Persons ( Hold-up) Concept:
b) With Force Upon Things ( Break-In)
2. Theft The taking, with intent to gain, of personal property
a). Simple belonging to another, by means of violence against or
b). Qualified intimidation of persons, or by using force upon things.
3.Estafa
4. Malicious Mischief Elements of robbery in general
a). Ordinary
b). Special Cases 1. There is personal property belonging to
5. Arson another;
6. Violation of the Chattel Mortgage Law 2. There is unlawful taking of that property;
3. The taking must be with intent to gain; and
Crimes against property 4. There is violence against or intimidation of any
person, or force upon anything
1. Robbery with violence against or intimidation
of persons (Art. 294);  The two major classifications are based on the
2. Attempted and frustrated robbery committed manner by which the robbery was committed.
under certain circumstances (Art. 297); The first is commonly called ―hold-up‖ while
3. Execution of deeds by means of violence or the second is robbery by ―breaking –in‖
intimidation (Art. 298);  If none of these two methods are used, the
4. Robbery in an inhabited house or public taking will constitute theft.
building or edifice devoted to worship (Art.  If both methods were used, the result is
299); complex a crime i.e. Robbery with Force Upon
5. Robbery in an inhabited place or in a private things complexed with Robbery with Violence.
building (Art. 302);  In robbery with violence, the violence need not
6. Possession of picklocks or similar tools (Art. be present at the start of the taking so long as
304); it was resorted to before the taking was
7. Brigandage (Art. 306); complete.
8. Aiding and abetting a band of brigands (Art.
307); Elements Common to Robbery and Theft
9. Theft (Art. 308);
10. Qualified theft (Art. 310); 1. The subject matter must be a personal property
11. Theft of the property of the National Library
and National Museum (Art. 311);  These include licit as well as illicit articles such
12. Occupation of real property or usurpation of as drugs and unlicensed firearms as well as
real rights in property (Art. 312); stolen articles
13. Altering boundaries or landmarks (Art. 313);  The term‖ Personal Property‖ does not follow
14. Fraudulent insolvency (Art. 314); the meaning provided for by the Civil Code. It
15. Swindling (Art. 315); means such property, whether tangibles or
16. Other forms of swindling (Art. 316); those with physical appearance and form or
17. Swindling a minor (Art. 317); intangibles, as long as they maybe subject of
18. Other deceits (Art. 318); appropriation and may be carried away
19. Removal, sale or pledge of mortgaged without altering its nature.
property (Art. 319);
20. Destructive arson (Art. 320); o Thus this includes those considered as
21. Other forms of arson (Art. 321); Real Property by Immobilization or
22. Arson of property of small value (Art. 323); destination‖ or those attached to the
23. Crimes involving destruction (Art. 324); soil or building for so long as they
24. Burning one‘s own property as means to were detached there from and carried
commit arson (Art. 325); away. Such as trees, machineries,
25. Setting fire to property exclusively owned by statutes, soil, stones and rocks
the offender (Art. 326);
26. Malicious mischief (Art. 327); o Accessories of real properties such as
27. Special case of malicious mischief (Art. 328); fruits of trees, fishes, paintings
28. Damage and obstruction to means of
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communication (Art. 330);
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 In theft the article must have a value because Introduction:
the penalty, and jurisdiction over the offense,  The penalties are determined and based on
is based on the value of the article taken the extent or gravity of the violence employed,
its degree of intensity, and the resulting injury
o The value must be proved as courts or harm
will not take judicial notice thereof. If  There are several special complex crimes (also
no value is proved, the court uses the known as Composite Crimes or Special
lowest value in the law value as basis Indivisible Crimes) involving consummated
robbery, which according to the order of
2. The property must belong to another severity are as follows:
1. Robbery with Homicide
 This means the property does not belong to 2. Robbery with Rape
the accused. Hence there is no robbery or 3. Robbery with Intentional Mutilations
theft of one‘s own property. The offenses are 4. Robbery with Arson
either Grave Coercion instead of robbery and 5. Robbery with Physical Injuries
Impossible Crime of Theft instead of the 6. Robbery with Unnecessary Violence
ordinary crime of theft.  In cases where there was death, rape, or
 The victim need not be the owner. He may be physical injuries inflicted, the foregoing Order
a mere possessor or even a robber or thief of Severity must be followed in giving the
himself. Thus robbery or theft may be name of the crime. There will only be one
committed against another criminal robber or crime and one specific penalty but the rape
thief. It is enough that the accused is not the and lesser injuries will be utilized as
owner of the property. aggravating circumstances.

3 There must be an act of taking or Acts punished

―apoderamiento‖, which is the physical act of
divesting another of the possession of a thing, or to 1. When by reason or on occasion of the robbery
separate and remove the property from the actual (taking of personal property belonging to
or constructive possession or custody or control of another with intent to gain), the crime of
the victim homicide is committed;

 The accused must hold the thing in a manner 2. When the robbery is accompanied by rape or
sufficient to enable him to dispose of it had he intentional mutilation or arson;
wanted to
 The possession may be permanent, temporary 3. When by reason of on occasion of such
or transitory robbery, any of the physical injuries resulting
in insanity, imbecility, impotency or blindness
4. There must ―Animus Lucrandi‖ or intent of gain is inflicted;

 The gain need not be in terms of financial or 4. When by reason or on occasion of robbery,
material gain as this includes: intent to obtain any of the physical injuries resulting in the loss
some utility, enjoyment, satisfaction, or of the use of speech or the power to hear or
pleasure. Example: X boxed Y so that Y will to smell, or the loss of an eye, a hand, a foot,
hand over the magazine for X to see the nude an arm, or a leg or the loss of the use of any
pictures. X returned the magazine thereafter. such member or incapacity for the work in
 If there is no animus lucrandi but force was which the injured person is theretofore
used to get an object, the crime is coercion. habitually engaged is inflicted;
 Robbery and theft maybe a continuous offense
as in the case of robbery of several persons. 5. If the violence or intimidation employed in the
The accused entered a classroom and robbed commission of the robbery is carried to a
the 20 students of their money at the point of degree unnecessary for the commission of the
a gun. Or, when the several robberies are crime;
component parts of a general plan to rob
within a specific place or area. Example: 6. When in the course of its execution, the
Robbery of several houses in subdivision or offender shall have inflicted upon any person
robbery of the various stalls in side the not responsible for the commission of the
shopping mall. robbery any of the physical injuries in
consequence of which the person injured
becomes deformed or loses any other member
Article 294. Robbery with Violence against or of his body or loses the use thereof or
Intimidation of Persons becomes ill or incapacitated for the
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habitually engaged for more than 90 days or
the person injured becomes ill or incapacitated  The following will constitute robbery with
for labor for more than 30 days; homicide:
o The robber fired his gun upwards to frighten
7. If the violence employed by the offender does the victim but the bullet killed a person who
not cause any of the serious physical injuries was hiding in the ceiling
defined in Article 263, or if the offender o The victim drew a gun to defend but his aim
employs intimidation only. was deflected and instead hit his companion
o It was a responding policeman who was
killed by a robber.
Robbery with Homicide o The responding policeman fired a shot but
missed and killed the victim of robbery
 This is committed ― When by reason or on the o The several robbers fought over the loot and
occasion of robbery, the crime of homicide shall one killed another, even if this took place
have been committed‖. This phrase requires that after the taking had taken place and the
there is a causal connection between the robbery robbers had fled the scene of robbery
and the death, had it not been for the robbery, o One of the victims suffered a stroke due to
there would have been no death. the tension and dies
 Both the robbery and the homicide should be o The gun of a robber accidentally fell and
consummated to be penalized by Reclusion killed a person outside the house
Perpetua to Death.
 The killing may be before, during, or immediately
o If it was the Robbery which was not after the taking provided that the original intent
consummated, but there was a killing, it is of the robbers must have been to rob and not to
still a special complex crime of Attempted or kill, which need not be the sole motive either.
Frustrated Robbery with Homicide but the
penalty is as provided for under Article 297 Example: X pointed a knife at Y and divested
him of his cell phone. X turned and ran
o If both the robbery and the killing are either whereupon Y chased him so that X stabbed and
attempted or frustrated, the result is either a killed Y.
complex crime of Attempted/Frustrated  If the original intention was to kill and the idea
Robbery with Attempted/Frustrated of taking came only thereafter, there results two
Homicide under Article 48, or as separate separate crimes of theft and murder or homicide.
crimes depending on the circumstances Example: The accused shot to death his enemy.
Then he decided to take the victim‘s necklace.
o If the Robbery is consummated but the  All those who conspired in the robbery will be
homicide is attempted or frustrated, they liable for the death unless he proved he
may be ordinary complex crimes or separate endeavored to prevent the killing. Physical
crimes depending on the circumstances absence in the place where the killing took place
is not a defense, or that the accused was not
 The term ―Homicide‖ is used in its generic sense aware his co-accused would resort to a killing.
and it includes any kind of killing whether it be
murder, parricide or infanticide, and irrespective Example: A, B, C and D conspired to rob a
of how many killings were there. The following housel with D acting as look-out at the road.
are not proper terms: Jose, an occupant refused to give money so A
leveled his gun at him. B shielded Jose with his
o Robbery with Murder: if there is any body as he did not like any killing A pushed B
qualifying circumstance which was present, aside and shot Jose. C was then at the rooms
such as treachery, it will be considered as an ransacking it. A, C and D will be liable for
ordinary aggravating circumstance Robbery with Homicide, but not B, who tried to
prevent it.
o Robbery with Double, Triple or Multiple
Homicide: Robbery with Rape: ―When the robbery shall have
been accompanied by rape‖
 The killing may be intentional, or accidental. The
killing may be by the acts of the robber, or by  The rape maybe committed before, during, or
the act of the victim, or act of a third person. after the robbery so long as it was
The person killed may be the victim of the contemporaneous with the robbery and so long
robbery or his friend, or family member. The as the original intention was to rob.
person killed may even be one of the robbers
themselves, or a person wanting to assist or  If the original intention is to rape and not to rob
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even a total stranger. so that if the taking came only after the rape
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because the opportunity presented itself, the o by public officers without the consent of the
taking is theft. victim. If it the giving is consensual it is
 The victim of the rape may be any person bribery
including one of the robbers o by persons pretending to be authorities and
 Both the robbery and rape must be threatening to arrest unless money is given
consummated other wise the there are two o by one falsely accusing another of a crime and
separate offenses. making a demand for money
 If there are two or more rapes, the others will be Special Aggravating Circumstances with respect
considered as aggravating circumstances of to Robbery with Violence or Simple Robbery
ignominy. Only
 Illustrations:
o If the girl is robbed, raped and then killed,  Art. 295 creates the following circumstances
the crime is Robbery with Homicide which cannot be offset by any mitigating
aggravated by rape
o If the girl is raped, then robbed and then 1. In uninhabited place (despoblado)
killed the crimes are (i) Rape with Homicide 2. By a band ( cuadrilla)
and (ii) Robbery 3. By attacking a moving vehicle (including train)
o If the girl is raped and then a personal or airship or entering the passenger‘s
property is taken the crimes are (i) Homicide compartment in a train
and (ii) Theft 4. By entering the passengers‘ compartments in
a train, or in any manner taking the
Robbery with Intentional Mutilation: ―when the passengers thereof by surprise in the
robbery shall have been accompanied by …intentional respective conveyances; or
mutilation‖ 5. On a street, road, highway or alley, and the
intimidation is made with the use of
 The injury resulted to insanity, imbecility, firearms,
impotency or complete blindness
 The victim may be any person including one of  If the crimes are Robbery with Homicide, with
the robbers also Rape, with Serious Physical Injuries, with Arson,
and the foregoing are present, they will be
Robbery with Arson: ―when the robbery shall have treated only as ordinary aggravating
been accompanied by… arson‖ circumstances

 The victim should not be killed, raped or mutilated Robbery by a Band: when more than 3 (at least 4)
 The arson is a separate act from the taking as armed malefactors take part in the crime of robbery
when the accused held up the occupants of a car (under Article 296)
after which they burned the car  The ―arms‖ may refer to any object capable of
inflicting a bodily injury
Robbery with Unnecessary Violence and other  If the weapon happens to be an unlicensed
serious physical injuries: (1) if the violence or firearm, this becomes a special aggravating
intimidation shall have been employed in the circumstance to the penalty committed by the
commission of the robbery shall have been carried to a band
degree clearly unnecessary or (2) when in the course  Requisites for liability for the acts of the other
of its execution the offender shall have inflicted any of members of the band
the physical injuries under subdivision 3 and 4 of Article
263. 1. He was a member of the band;
2. He was present at the commission of a
 The injuries referred to are deformity loss of a robbery by that band;
non-member part of the body or clearly 3. The other members of the band committed
unnecessary violence) should be inflicted prior to an assault;
the consummation of the crime or before the 4. He did not attempt to prevent the assault.
taking is complete other wise the injuries are
separate offenses In other words, the Effects of a “band” are:
a). all will be liable for the crime they agreed to
Simple robbery- where there is only an intimidation commit b) if they merely agreed to commit
or where the injuries sustained are less serious or slight robbery but a homicide, rape or physical injuries
were committed, those present in the assault
 The act known as ―extortion‖ or ―mulcting‖ is and who did not prevent the additional crime
simple robbery such as: will be liable for the additional crimes
o by law enforcement agencies known as
―kotong cops‖ Attempted and Frustrated Robbery with
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use of false keys or using any fictitious name,
 A special Complex Crime punished under Article or pretending the exercise of public authority
297.
 The term ―homicide‘ is used in its generic sense  Necessity of Entry: there must be proof that
as to include murder, parricide, or infanticide the accused actually physically entered, i.e the
provided the homicide was consummated and whole body was inside and not just the arms
was committed by reason or on the occasion of or upper part. In case there was no total entry,
the robbery the crime is theft if a property was taken or
attempted trespass if none was taken.
 To constitute consummated robbery, the article
Article 298. Execution of Deeds by Means of or thing must be brought out of the house or
Violence or intimidation building

Concept:
Question & Answer
This is the crime committed by a any person who, with
intent to defraud another, shall compel him to sign, Q: Suppose one accused is inside dropping articles
execute or deliver any public instrument or document to a co-accused who was outside the building,
collecting them. They were caught. Is the crime
Elements consummated?

1. Offender has intent to defraud another;

2. Offender compels him to sign, execute, or Article 299. Robbery in An Inhabited House or
deliver any public instrument or document. Public Building or Edifice Devoted to Worship
3. The compulsion is by means of violence or
intimidation. Place of Commission.
The robbery must be inside: (Article 301. What is
Principles: inhabited house, public building or building dedicated
to religious worship and their dependencies)
 This is a special kind of committing robbery
 The document must be capable of producing 1. An Inhabited House. ― any shelter, ship, or
legal effect and the victim is under a lawful vessel constituting the dwelling of one or more
obligation to execute and deliver the document persons, even though the inhabitants thereof
 The document may be public or private shall be temporarily absent therefrom when the
 If the document is void the crime is coercion robbery is committed ‖
 The purpose of the accused is to defraud the
accused, to divest him of his property, else it is  If the ship was for transporting persons or
coercion goods and it is sea worthy, the crime
 Examples: Using violence to compel one to should be piracy. Thus the term ship under
execute a deed of sale of his vehicle or to article 301 must refer those which are not
execute a last will and testament longer sea worthy but are used as
dwellings instead.
They include dependencies, which refer to
Robbery By the Use of structures which are contiguous to, and
Force Upon Things. with interior entrances connected to the
(Break-In) house

General Principles: 2. A Public Building. One owned by the

government or by a private person but was
 This is of two kinds. The first is where the leased, rented or actually being used, by the
robbers broke-into or entered an Inhabited government, although temporarily unoccupied by
house, public building or edifice devoted to the same.
religious worship and the second is where the
entry or break in is into an Uninhabited House 3. An Edifice devoted to religious worship. This
or a private building. does not include private houses or commercial
 The force refers to the mode or manner by buildings, rented by, leased to, or actually used,
which the entry was made. It connotes some for religious services.
kind of a trespass inside where the robbery
was committed. It may be actual physical  Dependencies of an inhabited house, public
force, such as breaking a wall door, or floor; or building, or building dedicated to religious
it may consists of constructive force, such as worship – all interior courts, corrals, warehouses,
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departments, or enclosed places contiguous to  The crime of Possession of Picklocks under
the building or edifice, having an interior article 304 is absorbed
entrance connected therewith and which form  The key is that used to enter the house and
part of the whole. The yards, orchards and lands to open a wardrobe or room inside.
for cultivation are not included, even if closed,  See: Art 305 for definition of false keys
contiguous to the building, and having direct
connection therewith. 4. By using any fictitious name or pretending the
exercise of public authority. This is not limited to
Elements under subdivision (a) of Art 299 the use of aliases but extends to any
misrepresentation about the identity of the accused
1. Offender entered an inhabited house, public in order to misled an occupant into allowing the
building accused to enter.
2. The entrance was effected by any of the
following means:  This presupposes that at the time of entry
a. Through an opening not intended for there were persons in the house or building.
entrance or egress; This is the reason why this mode of entry
b. By breaking any wall, roof or floor, or does not apply to Robbery in an Uninhabited
breaking any door or window; House
c. By using false keys, picklocks or similar  Examples: pretending to be sheriffs of the
tools; or court; inspectors of the NPC or as
d. By using any fictitious name or pretending detectives, or as messengers, classmates
the exercise of public authority. and the like.
3. Once inside the building, offender took
personal property belonging to another with Elements under subdivision (b) of Art 299:
intent to gain.
1. Offender is inside a dwelling house, public
building, or edifice devoted to religious
The manner of entry must be through any of the worship, regardless of the circumstances
following modes, otherwise the crime is theft. under which he entered it;
2. Offender takes personal property belonging to
1. Through an opening not intended for entrance or another, with intent to gain, under any of the
egress. following circumstances:
a. By the breaking of doors, wardrobes,
 The only opening for entrance is through an chests, or any other kind of locked or
outside door, except in cases where the sealed furniture or receptacle; or
inside door refer to the door of separate b. By taking such furniture or objects away
units or rooms used as separate dwellings. to be broken or forced open outside the
 The entry then may have been through an place of the robbery.
open window, a break in the wall or roof or
floor, sliding down the fireplace Note: In the two following situations the accused
entered the house properly but the taking of
2. By breaking any wall, roof, floor or breaking any property is still robbery.
door or window .
5. By breaking of doors, wardrobes, chests or any
 The term ‖door‖ refers to the outside door of other kind of locked or sealed furniture or
the dwellings and not to doors of rooms receptacles
inside the house
 To ―break the door‖ is not just ―forcing the  The term ―door‖ does not refer to the inside
door open‖ or prying it loose from its or interior doors, or door of rooms or
grooves. compartments, but to the doors of furniture,
 When the padlock was destroyed, the aparadors, closets, cabinets
Supreme Court says the crime is robbery
because the padlock is an integral part of 6. By taking such furniture or objects away to be
the door. The Ct. of Appeals says it is theft broken or forced open outside the place of robbery
 If what was destroyed is the key, it is theft
 The term ―wall‖ is not the dividing wall  The taking of small receptacles, such as
between rooms, unless the rooms are jewelry boxes, or piggy banks, even if
separate units constituting separate broken outside is merely theft
dwellings
The penalty of the accused is determined by the
3. By using false keys, pick locks or similar tools following factors;
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1. Value of the property taken
2. Whether the accused was armed. But if the  The term cereals refer to seedlings or unhulled
firearms were used against or, to intimidate the grains in their original states
occupants or victims, the crime is Robbery with  These are taken from inside a house, or
Violence. building whether inhabited or uninhabited
3. In case of a house, whether it was in the main  The penalty is one degree lower because it is
house or in a dependency presumed the acts were impelled by economic
4. Whether it was a mail matter in which case the necessity or hunger.
penalty is one degree higher and
5. If committed by a band and in an uninhabited
place. Example four armed malefactors robbed Article 304. Possession of Picklock or Similar
a house built in an isolated place. Tools

Elements
Article 302. Robbery in An Uninhabited Place or
in A Private Building 1. Offender has in his possession picklocks or
similar tools;
Elements 2. Such picklock or similar tools are especially
adopted to the commission of robbery;
1. Offender entered an uninhabited place or a 3. Offender does not have lawful cause for such
building which was not a dwelling house, not a possession.
public building, or not an edifice devoted to
religious worship; Article 305 defines false keys to include the
2. Any of the following circumstances was following:
present:
a. The entrance was effected through an 1. Tools mentioned in Article 304 (i.e. those
opening not intended for entrance or specifically adopted for the commission of
egress; robbery i.e to open locks);
b. A wall, roof, floor, or outside door or
window was broken; 2. Genuine keys stolen from the owner (or
c. The entrance was effected through forgotten or lost by him – Sir Sagsago);
the use of false keys, picklocks or
other similar tools; 3. Any key other than those intended by the
d. A door, wardrobe, chest, or any owner for use in the lock forcibly opened by
sealed or closed furniture or the offender such as a duplicate made by
receptacle was broken; or the accused based on the wax impression of
e. A closed or sealed receptacle was the genuine key borrowed form the owner
removed, even if the same be broken
open elsewhere. Acts punished under Art 304 (Sir Sagsago):
3. Offender took therefrom personal property
belonging to another with intent to gain. 1. Possession of these picklocks or similar tools
specially adopted for robbery is a mere
Principles: preparatory act which is punished
2. The manufacture of said picklocks or similar
 Although the law uses the word ―uninhabited tools.
place‘ what this actually means is uninhabited
house- those not used as residences or  A master key or skeleton key is a picklock
dwellings.  If a key was entrusted to a confidential
employee, as a secretary or body guard, for
o These would include warehouses, stores, safekeeping but the latter used them to open
offices, commercial buildings and and take property, the crime is qualified theft
establishments, department stores, banks,  If the accused used said keys to commit theft
market stalls. or robbery, for example: in the so-called
bukas-kotse, the possession is absorbed
 The mode of entry is the same as in an
Inhabited house except for the use of fictitious
names or pretending the exercise of public Brigandage And
authority Highway Robbery
(Arts. 306, 307and P.D. 532)

Article 303. Robbery of Cereals, Fruits or Introduction:

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Article 306 defining and penalizing brigandage has
been modified by Pres. Decree 532 defining and
punishing ― highway robbery and brigandage‖ As thus
modified, the term ―brigandage‖ and ―highway Article 308. (Simple)Theft
robbery‖ are used synonymously and they mean:
Concept:
 The seizure of any person for ransom, extortion
or other unlawful purposes (Is not the seizure of Theft is committed in four ways.
persons the crime of kidnapping ?)
 Or the taking away of property of another by 1. The first way defines the ordinary, simple, or
means of violence against or intimidation of common crime of theft as the crime
person or force upon things or other unlawful committed by any person who, with intent to
means gain but without violence against or intimidation
 Committed by any person on any Philippine of persons nor force upon things, shall take
Highway personal property of another without the latter‘s
consent.
o Highway refers to the roads connecting
distant barrios or towns to one another and 2. Theft of lost property
not to those located within a city or town.
3. Theft after a malicious mischief
Notes:
4. Theft after a trespass
 Highway robbery requires that commission of
robbery is not an on the spur of the moment Persons liable
decision by the accused; it requires habituality
or regularity and the commission thereof is 1. Those who with intent to gain, but without
indiscriminate and not against a violence against or intimidation of persons nor
predetermined victim i.e. against any traveling force upon things, take personal property of
person. In case the accused are more than another without the latter‘s consent;
one, they must be organized for the purpose 2. Those who having found lost property, fails to
of committing such crimes in said manner in deliver the same to the local authorities or to
order to give rise to brigandage. If not, the its owner;
crime is plain robbery committed in the 3. Those who, after having maliciously damaged
highway. the property of another, remove or make use
of the fruits or objects of the damage caused
 Those who help or assist the highway robbers by them;
are guilty of the crime of Aiding or Abetting 4. Those who enter an enclosed estate or a field
Brigands where trespass is forbidden or which belongs
to another and, without the consent of its
Article 307. Aiding and Abetting A Band owner, hunt or fish upon the same or gather
of Brigands fruits, cereals or other forest or farm products.

Elements Elements

1. There is a band of brigands; 1. There is taking of personal property;

2. Offender knows the band to be of 2. The property taken belongs to another;
brigands; 3. The taking was done with intent to gain;
3. Offender does any of the following acts: 4. The taking was done without the consent of
a. He in any manner aids, abets or the owner;
protects such band of brigands; 5. The taking is accomplished without the use of
b. He gives them information of the violence against or intimidation of persons of
movements of the police or other force upon things.
peace officers of the government; or
c. He acquires or receives the property Discussion of the Elements
taken by such brigands.
1. That there be a taking (apoderamiento) or there
 the brigands were formerly called the be a physical act of divesting a person of his
highwaymen or tulisans who waylay travelers possession of a property and bringing it under
or attack and pillage villages as a way of living. one‘s control; an act separating the property
They have their own hideouts in the from the owner or possessor and without animus
mountains. They are the equivalent of pirates revertendi.
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Notes: borrowed cell phone or refused to return
the article he borrowed
 Taking means the act of depriving another of
the possession and dominion of movable  Estafa if what was transferred is both physical
property without his privity and consent and and juridical possession i.e the right to possess
without animus revertendi the thing such as a thing given as collateral for
a debt
a) The owner or juridical possessor does not give
his consent 3. The property is a personal property which
b) or the consent was vitiated belongs to another: ie. it does not belong to the
c) may occur at or soon after the transfer of accused otherwise the crime committed would be
physical possession when an act done by the the Impossible Crime of Theft.
receiver soon after the actual transfer of
possession results in unlawful taking ( PP vs.  They include illicit articles such as drugs,
Tan 323 SCRA 30) unlicensed firearms, or property stolen from
another and in the possession of the victim
 It is not necessary that the property be
actually carried away out of the physical
Question & Answer
possession of the lawful possessor or that the
thief should have made his escape with it.
Neither as transportation or actual manual Q: Is a co-owner liable for theft of the property
possession of property is required. owned in common?
Constructive possession of the property is
enough ( Laurel vs. Abrogar, 483 SCRA 243) A: Yes if he takes more than his lawful share. His
 The taking maybe by the offender‘s own liability is for the excess.
hands, by his use of innocent persons without
any felonious intent, as well as by any a). A and three others co-owned P20,000.00
mechanical devise such as access device or kept in a box. A took away P5,000.00. He is
card, or any agency, animate or inanimate, not liable because the amount corresponds
with intent to gain ( Laurel vs. Abrogar) or the to his share.
property is received or physically delivered to
him b). A took the whole P20,000.00. He is liable
 The taking is complete once the thing is placed for theft of P15,000.00
under one‘s possession or control even if only
for a short time and even if there was no c). A finder of lost treasure who appropriates
opportunity to dispose off the article. The everything is liable for theft of one-half
thing need not be carried away. Hence there is thereof as the same belongs to the
no frustrated theft even of bulky items. government

o The decisions in PP. vs Dino and PP. vs  Personal property is that which can be
Espiritu concerning frustrated theft of appropriated and can be carried away without
bulky items have been reversed in changing its nature.
Valenzuela vs. PP. June 21, 2007 This case
expressly declared that theft has no o They include tangible movable properties
frustrated stage. which have physical or material existence
and susceptible of occupation by another;
2. However, if the property was not taken but was or to movables which can be taken and
received or that it was voluntarily delivered to the carried from the place where they are
accused, and thereafter not returned, the crimes found and brought under the possession
committed are: of a person. The following are examples:
(i). jewelries, money, food, clothing,
 Theft if what was transferred to the accused (ii). papers, documents, certificates of
is mere physical possession. title
(iii). commercial papers such as checks,
o The rule is that if a person, to whom a promissory notes
thing was delivered, was under obligation (iv). rocks, soil, flowing water, water,
to return the same thing, but does an act trees
amounting to appropriation or conversion,
he commits theft o Those Intangible properties which are
o Examples: one who ran away with a ball capable of being appropriated such as
pen after borrowing it; or one who sells a electricity and other forms of energy are
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proper subject of theft
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of asportation. (Laurel vs. Abrogar
 ―Electricity, like gas, is a valuable Feb. 27, 2006)
article of merchandise, bought and
sold like other personal property,
susceptible of being severed from a  NOTE: The acts complained of in
mass or larger quantity and of being Laurel vs. Abrogar maybe penalized
transported from place to place. under RA 8484, The Access Devices
Electrical energy may likewise be Regulations Act of 1998.
taken and carried away‖ (Laurel vs
Abrogar)  NOTE: Theft of electricity by the use
of jumpers is penalized by R.A. 9832,
 Intangibles such as rights and ideas The Anti Electricity and Electric
are not subject of theft because they Transmission Pilferage Act of 1994)
are without form or substance and
cannot be ―taken‖ from the place they
Questions & Answers
are found. A naked right existing
merely in contemplation of law,
although it may be valuable to the Q: Juan used a stolen credit card of Pedro
person who is entitled to exercise it, is to pay for his hotel accommodations.
not the subject of theft. They include What crimes may be filed against
these: right to produce oil, good will Juan?
or interest in business, right to
engage in business, credit or A: The crimes are: (i) Theft on complaint
franchise, a credit line represented by of Pedro as to the taking of the credit
a credit card. card (ii) Violation of R.A. 8484 for
(a). Plagiarism: using the card to obtains services and
(b). Trafficking in Persons- theft of (iii) Estafa on complaint of the hotel
body organs for pretending and misrepresenting
©. If what was stolen are feelings himself to be the owner of the credit
and emotions or people, while card.
they maybe stolen in songs, are
not subject of theft) Q: JUAN used a ―splitter‖ and was able to
watch cable programs provided by
 Example: Laurel vs. Abrogar 483 ABC Co. Did he commit theft?
SCRA 243, Feb. 27, 2006)

Facts: BAYNET Co. sold phone cards  Identity theft

which enabled buyers to make calls in
the Philippines through the telephone 4. The property is capable of pecuniary valuation or
lines, equipments and facilities of the estimation. This is necessary for purposes of
PLDT without the knowledge of the determining the penalty of the accused and
PLDT such that it evaded the charges consequently what court has jurisdiction over the
which would have been paid to the theft. They include the following:
PLDT.
 Basis of the valuation is either: (i) the value of
Issue: Whether PLDT‘s business of the thing itself (ii) its intrinsic value, as in theft
providing telecommunication services of gold (iii) that which is represented as in
is a proper subject of theft checks or commercial papers.

Held No. The international telephone  It does not matter that the article is of no
calls placed by the BAYNET card value to the accused as when he stole a
holders, the telephone services person‘s Community Tax Certificate, or sales
provided by PLDT and its business of invoices or I.D. cards.
providing said services are not
personal properties. Personal property  If the article is valueless, as for example
subject of theft cannot be interpreted checks which have already been encashed,
to include ― telecommunication or they will be valued at the lowest valuation set
telephone services‖ or computer by law i.e it ―does not exceed P5.00‖
services for that matter. A service is
not generally considered property and 5. There is intent to gain or “Animus Lucrandi‖.
theft of service would not constitute The taking is for the purpose of obtaining financial
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theft since there can be no possibility
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or material gain; utility, satisfaction enjoyment and
pleasure. 5. There is a presumption of theft against one
found in possession of a stolen article who cannot
 If there was an act of taking but without intent explain away his possession. Likewise the
of gain, some other offense may be possession of some part of the stolen property
committed. Thus: (a) A took the notebook of B raises the presumption that the possessor stole the
and hid it so that B has nothing to review. The whole property
crime would be unjust vexation. (b) If A threw
the notebook in a pool of water the crime is
malicious mischief (c) But if A took the Theft of Lost Property
notebook so that he can study and review and
then returned the notebook the crimes is still  The crime committed by any person who, having
theft as there was gain. found lost property, shall fail to deliver the same to
local authorities or to its owner.
6. There is no violence against or intimidation of
persons (not a hold-up) nor force upon things o This is a crime by omission but the failure
(break-in) must not be due to valid reasons. Hence it is
no defense that the finder did not profit from
 If there was force employed, it is not upon the it
person but upon the property. However the
force on the property must not be to gain o It is not necessary that the accused knows
entry into a dwelling, public building or who the owner is. It is enough that he knows
religious edifice. or ought to know, that the property was lost.
It is his duty to turn it over to the authorities.
 Thus where the accused applied force to pull
at the shoulder bag, the crime is theft. If the o Suppose he turned it over to persons other
victim pulls away the bag so that the accused than to the authorities? He may or may not be
pushed down the victim to make him loss his liable depending to whom he turned over the
hold, the crime is robbery. property. If it was turned over to one whose
employment or position is such that through
 3 If they are the windows or door of a vehicle him the property can be returned to the owner
or display rooms or cabinets which are broken o possessor, then the finder is not liable. Thus
to get the things inside, the crime is theft the delivery to a radio station for
announcement to the public does not give rise
Principles: to criminal liability.
1. Theft is consummated once the taking is
complete even if the accused was immediately o To be liable the failure to deliver must be after
apprehended, or that it was snatched back from the lapse of a sufficient time. Thus: if the
him, or that he had no opportunity to dispose off accused found a valise which he failed to
the thing. deliver within 41/2 days. When the owner
came to get it, he surrendered it. He is not
2. There is no frustrated stage. Was there liable.
possession of the thing or not? If there was, it is
consummated o The property must not be res nullius

3. There as many crimes of theft as there are

several occasions of taking, even if the victim is one
Questions & Answers
and the same person.

a). There is only one crime even if there be Q: The taxi driver had it be announced over the
several victims- a continuous crime of theft- if radio that he found a bag left by a passenger.
the things were taken at the same time and He advises the owner to get the bag at his
place. Example: the theft of two roosters house but to bring identification papers with
belonging to different persons him. After two weeks the owner comes to claim
but the bag was stolen from the house of the
b). The ―single larceny doctrine‖, that is, the taxi driver. Is the Taxi Driver liable for theft?
taking of several things whether belonging to
the same or different owners, at the same time  The term ―lost property‖ is used in its generic
and place constitutes but one larceny (Santiago sense in that it was separated from the owner or
vs. Garchitorena, 228 SCRA 214) possessor without his consent and this includes
property which were stolen or subject of robbery.
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4. It may be complexed with falsification  The persons liable are either:
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6. If property is taken on the occasion of fire,
1. The Finder- in- Fact: this is the actual finder earthquake, typhoon, volcanic eruption, or any
of the property such as the taxi driver who finds other calamity, vehicular accident, or civil
a wallet left by a passenger disturbance.

2. The Finder-in-Law or the transferee, or the These circumstances are categorized according to
person to whom the Finder-in-Fact turned over their nature thus:
or transferred the lost property.
a). Circumstances pertaining to the accused
himself, such as the accused is a domestic
servant
Questions & Answers
b). Those arising from the offended party, such
Q: The taxi driver turned over the wallet left as when he reposed trust and confidence in
by a passenger to the Police Desk Sergeant. the accused
The latter spent the money. What crime did
the policeman commit? c). Those based on the nature of the object
stolen such as mail matters
A: Theft. He is the Finder-in-Law (PP. vs.
Avila 47 Phil. 720) d) Those arising from the circumstances of time,
place and occasion of the taking
Theft After a Malicious Mischief
 If committed by a domestic servant. The theft is
 “Any person who having maliciously damaged the always qualified theft.
property of another, shall remove or make use of  If committed with grave abuse of confidence.
the fruits or objects of the damage caused by him‖
o This presupposes that there should be a
o The malicious destruction is absorbed in the relation of dependence, guardianship or
taking vigilance between the accused and the victim
o Ex: Shooting a dog and then eating it; or which created a high degree of trust and
cutting down the neighbor‘s fruit tree and then confidence.
gathering its branches as firewood
o If there was no intent to gain the crime is o The trust and confidence should arise in
simply malicious mischief special relations of intimacy and confidence
between the offender and the accused. It
Theft after a trespass should be proven that the victim reposed trust
and confidence and it was this which enabled
 ―By hunting, fishing or gathering fruits, cereals, the accused to commit the crime.
forest or farm products after committing trespass‖. a). Theft by an employee against his employer
The act of trespass is absorbed. The property such as confidential secretary, a
trespassed refers to lands and not to buildings. bodyguard, or a warehouseman or cashier,
salespersons, a bank teller, by a personal
chauffeur
b). Theft by a one living with the victim as a
Article 310. Qualified Theft guest or a stay-in or a room mate
c). Theft by a driver as to the gasoline of
 Provides that the penalty shall be 2 degrees higher trucks driven which they are allowed to
than that for simple theft if theft is committed draw
under any of the circumstances enumerated
thereunder. o Liability of strangers: Since the trust and
confidence which was abused is purely
Theft is qualified if personal between the accused and the victim,
strangers who participate in the taking are
1. Committed by a domestic servant; liable for simple theft only.
2. Committed with grave abuse of confidence;
3. The property stolen is a motor vehicle, mail  When the property stolen is a motor vehicle.
matter, or large cattle;
4. The property stolen consists of coconuts taken o This is modified by R.A. 6539 or the Anti-
from the premises of a plantation; Carnapping Law which defines the crime of
5. The property stolen is fish taken from a carnapping as ― Taking, with intent to gain, of
fishpond or fishery; or a motor vehicle belonging to another without
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the latter‘s consent, or by means of violence
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against or intimidation of persons, or by using o Suppose the mail is sent by commercial
force upon things‖ couriers who take the mail or the contents of
letters or packages? It is qualified theft
 The act of carnapping includes both because of grave abuse of confidence
―theft‖ and ―robbery‖.
 Suppose it was the juridical possession of  When the property taken is a Large Cattle
the motor vehicle which was delivered?
The crime is estafa and not theft therefore o This has been modified by P.D. 533 or the
R.A. 6539 does not apply. Anti Cattle Rustling Law

o Cattle Rustling is defined as ― the taking, by

Questions & Answers
any means, method or scheme, with or
without intent to gain, with or without violence
(i). What crime was committed by a driver or force upon things, if without the consent of
on the ―boundary system‖ who brings the the owner, of any large cattle‖
vehicle elsewhere and does not return it?
 Large cattle refers to a horse, bull, ass,
(ii). What crime was committed by one who carabao, other domesticated members of
was entrusted with the possession or the bovine family. A goat is a small cattle.
custody of a motor vehicle, who thereafter  The acts punished by P.D. 533 include:
sells it? (i). mere killing, hence there is no
malicious mischief of large cattle
(ii). the taking of the meat or hide
(iii). What crime was committed by one who (iii). the spreading of poison among the
is given the motor vehicle to test drive it but herd
drives it away and does not return it? (iv). the act of co-mingling of cattle

o Motor vehicle refers to any vehicle propelled  If homicide results, the killing is absorbed
by any power (such as solar energy) other and becomes an aggravating
than muscular power using the public highway. circumstance. The crime becomes the
special complex crime of Cattle Rustling
 The following are not motor vehicles: road Resulting in/Accompanied by, Homicide
rollers, trolley cars, bulldozers, street
sweepers, graders, forklifts, traction  But if it was the physical possession of the
engines of all kinds used in agriculture. cattle which was received by the accused
Taking of these kinds of vehicles will be who appropriated it for himself, the crime
qualified theft is Qualified Theft of Large Cattle. For
 If a motor is attached to a bicycle, it example: the neighbor took his cow to the
becomes a motor vehicle accused to be mated with the bull of the
accused. That night the accused
o R.A. 6539 creates the special complex crimes butchered the cow.
of (a). Carnapping Resulting to/Accompanied
by Homicide and (b) Carnapping Resulting  If the cow was entrusted to the accused
to/Accompanied by Rape if the owner, driver, for him to bring to another but the
or occupant is killed or raped in the course of accused ate the cow, the crime is estafa
the commission of the carnapping or on the
occasion thereof.  When the property taken is a coconut. The coconut
must be taken from a plantation whether they are
The homicide and rape must be simultaneous still in the tree or on the ground The reason for the
with the taking i.e. committed at the time and law is to protect the coconut industry of the
place of the carnapping. Philippines.

 When the property is a mail matter.  When the property taken is a fish. The taking must
be from large fishponds or those ponds for
o If by the Post Master the crime is Infidelity in commercial purposes.
the Custody of Documents. If by mail carriers,
it is qualified theft  When the taking is on the occasion of a calamity,
o Should the mail be unopened? Suppose it has vehicular accident, or civil disturbance. Example:
already been read by the addressee? If so the The accused took the valuable items of the
crime is simple theft. passengers of a bus which fell down the ravine.
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 When the property taken is timber from a logging
concession. Acts punished:

Article 311. Theft of the Property of the 1. Taking possession of any real property
National Library or National Museum belonging to another by means of violence
against or intimidation of persons;
 If the property stolen is any property of the 2. Usurping any real rights in property belonging
National Library or of the National Museum to another by means of violence against or
intimidation of persons.
 This is a special kind of theft and is set apart
from the others in order to protect the Elements
historical and cultural treasures.
1. Offender takes possession of any real property
o The accused should not be the museum or usurps any real rights in property;
curator or the librarian because what they 2. The real property or real rights belong to
commit is malversation another;
3. Violence against or intimidation of persons is
used by the offender in occupying real
Questions & Answers
property or usurping real rights in property;
4. There is intent to gain.
Q: Suppose the artifacts were taken from their
natural habitat, such as theft of the Kabayan Notes:
mummies?
 This is akin to robbery of real property.
A: Yes If they were constituted as part or  There must be animus lucrandi otherwise the
extension of the Museum act is coercion
 This includes the act of squatting
 There are two penalties imposed:
Other Offenses Penalized as Theft (i) The first is for the act of usurpation
which is based either on the gain or a
A. Violation of P.D. 133. The laborer/employee who fine, and
shall steal any material, spare part, produce, or article, (ii) the penalty for the injury inflicted
he is working on.  The land should not be public agricultural
Example: (a). a silversmith who steals the silver lands as it is R.A. 947 which applies
given him to work on (b). A shoemaker who steals
the leather used to make shoes 2. Altering Boundaries or Landmarks
(Article 313)
B. Violation of the Forestry Code which punishes,
as qualified theft, the act of cutting, gathering or Elements
removing or smuggling timber or other forest products
from any public or private forest in violation of existing 1. There are boundary marks or monuments of
rules, regulations or laws towns, provinces, or estates, or any other
marks intended to designate the boundaries of
C. Violation of P.D. 581 which punishes ―High the same;
Grading‖ or the taking of gold-bearing ores or rocks 2. Offender alters said boundary marks.
from a mining claim or camp.
Notes:

 The boundaries may refer to boundary marks

Usurpation (of real property) or monuments of towns, provinces or private
estates or other marks intended to designate
Kinds: the boundaries of the same, such as trees
planted or fences placed around the perimeter.
1. Occupation of Real Property or Usurpation of  This includes titled lands
Real Rights in Property (Article 312).
Culpable Insolvency
Concept:
Article 314. Fraudulent Insolvency
The act of taking possession, by means of violence
against or intimidation of persons, of any real Concept:
property or shall usurp any real right in property
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belonging to another.
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The act of a person who absconds with his property to performance of an act, or (b) he intentionally omits
the prejudice of his creditors, i.e. in order that they or conceals or suppresses an important fact or (c)
cannot collect from him. he intentionally fails to do an act which aids in the
deception of the victim.
Elements
o Example: The seller of a car who did not
1. Offender is a debtor, that is, he has obligations inform the buyer that the car had previously
due and payable; been involved in an accident and was
2. He absconds with his property; damaged so that certain parts had to be
3. There is prejudice to his creditors. repaired, replaced or welded, was found
guilty of estafa by deceit.
Notes:
o ―Concealment which the law denounces as
 The accused must be a debtor fraudulent implies a purpose or design to
 The term‖ abscond‖ means to conceal one‘s hide facts which the other party ought to
self or one‘s property, with intent to avoid legal know. Failure to reveal a fact which the
processes seller is, in good faith, bound to disclose
may generally be classified as a deceptive
o Hiding so as not to be served with a act due to its inherent capacity to deceive.
complaint, summons or notices or orders Suppression of a material fact which a party
is bound in good faith to disclose is
o The property may be real or personal. equivalent to a false representation.
Concealing one‘s property means Moreover, a representation is not confined
transferring to another to prevent the to words, or positive assertions; it may
creditor from running after that particular consist as well of deeds, acts or artifice of a
property but there must be a real nature calculated to mislead another and
consideration. thus allow the fraud-feasor to obtain an
undue advantage.
o Simulated sales or transfers (i.e there is
no real consideration as ownership o Fraudulent nondisclosure and fraudulent
remains with the debtor), are punished concealment are of the same genre.
under estafa Faudulent concealment presupposes a duty
to disclose the truth and that disclosure was
o Creditors must be prejudiced in that they not made when opportunity to speak and
are unable to collect inform was presented, and that the party to
whom the duty of disclosure as to a material
o It is not necessary that insolvency fact was due, was induced thereby to act to
proceeding should have been filed first. his injury‖.( Guinhawa vs. People, 468 SCRA
278)

Estafa or Swindling  It maybe a (a) continuing offense in that the acts

(Embezzlement of Private constituting estafa were executed not in an
Funds or Property) instance but within a span of time and (b) it may
be transitory in that the essential elements took
General Principles: place in different jurisdictions.

1. Generally there are only two ways of commission:

Questions & Answers
A. By misappropriation or abuse of confidence or
unfaithfulness Q: X, who is in Manila, convinced Y who is in Baguio,
to send money to X as purchase price of goods
B. By False pretenses or by means of deceit which Y was in need. The agreement was through
text messages, and sometimes through the use of
If one is charged under one mode, he cannot be cell phones and at items through the internet. The
convicted under the other mode. Each mode is money was sent through the Western Union. X
distinct so that one cannot be said to include the misappropriated the money. Can Y file estafa
other. charges in Baguio City?

 Estafa by deceit cannot be committed by  There must be damage to a third person to bring
negligence. It is always intentional in that the about consummated estafa which damage may
accused (a) knowingly asserts or assures the either be:
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o Actual or material damage such as in the loss reimbursement of the money or that be given
of a certain amount of money, or a specific another land in substitution. X agreed but found
property the land given in substitution was not to his
liking. The subsequent agreement which is a
o It may consist in the mere disturbance of novation is a good defense to a charge for
property rights. estafa.
Example. Mr. X presented misrepresented
himself as the President of a company in  The Principle of Multiple Estafa:
whose favor certain sums of money were due
and payable from Juan. He demanded o There are as many separate charges for estafa
payment whereupon Juan issued a check as there are different and separate acts of
made payable to: ―The President of the misappropriation committed on different dates
company‖. Even if Mr. X is unable to encash or occasions.
the check, Juan cannot also make use of the
amount covered by the check. o For each amount belonging to a different
o Temporary Prejudice. person i.e there as many separate charges of
estafa as there are persons damaged because
the damage to one is different from the
Questions & Answers
damage to another person.

Q: Juan handed P10,000.00 to Pedro for Pedro to o The principle of continuous crime does not
give to Juan‘s brother at the end of the month. apply to estafa.
Pedro‘s allowance did not yet arrive so he
spent the money in the expectation that he
will replace it with his allowance which is due Article 315. Swindling (Estafa)
by the end of the month. He did replace it with
his allowance and gave the money to Juan‘s Elements in general
brother. Juan learned about it. Can Juan file
charges of estafa against Pedro? 1. Accused defrauded another by abuse of
confidence or by means of deceit; and
 The damage must be capable of pecuniary
valuation because the penalty includes a fine which This covers the three different ways of
in turn is based on the amount of damage. committing estafa under Article 315; thus,
Likewise the penalty of imprisonment is based on estafa is committed –
the amount The exception is syndicated estafa
under P.D. 1689 where the penalty is fixed: life a. With unfaithfulness or abuse of
imprisonment to death, regardless of the amount confidence;
involved. A syndicate exists if committed by” five b. By means of false pretenses or
or more persons formed with the intention of fraudulents acts; or
carrying out the unlawful or illegal act, c. Through fraudulent means.
transaction, enterprise or scheme”
(The first form under subdivision 1 is known as
 Novation may be a defense in that it may prevent estafa with abuse of confidence; and the
the rise of criminal liability or it may cast doubt on second and third forms under subdivisions 2
the true nature of the original basic transaction and 3 cover cover estafa by means of deceit.)
between the accused and the offended party.
2. Damage or prejudice capable of pecuniary
o It is not a defense once the Information was estimation is caused to the offended party or
filed in court third person.

o Examples:
(i). A contract of agency may be converted into Elements of estafa with unfaithfulness of abuse
a debtor-creditor relationship. Thus the agent of confidence under Article 315 (1)
and the principal may agree that the agent Under paragraph (a)
assume the payment of the value of the article
supposed to be sold on consignment. If the 1. Offender has an onerous obligation to deliver
agent failed to pay, there can be no charge of something of value;
estafa. 2. He alters its substance, quantity, or quality;
3. Damage or prejudice is caused to another.
(ii). X discovered that the land sold to him is
non-existent and when he informed the seller, Under paragraph (b)
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the seller offered X an option of either
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1. Money, goods, or other personal property is calumny which the offended party may deem
received by the offender is trust, or on proper to bring against the offender.
commission, or for administration, or under
any other obligation involving the duty to Under paragraph (d)
make delivery of, or to return, the same;
2. There is misappropriation or conversion of 1. Offender postdated a check, or issued a check
such money or property by the offender, or in payment of an obligation;
denial on his part of such receipt; 2. Such postdating or issuing a check was done
3. Such misappropriation or conversion or denial when the offender had no funds in the bank,
is to the prejudice of another; and or his funds deposited therein were not
4. There is a demand made by the offended party sufficient to cover the amount of the check.
to the offender.
Acts punished under paragraph (e)
(The fourth element is not necessary when
there is evidence of misappropriation of the 1. a. Obtaining food, refreshment, or
goods by the defendant. [Tubb v. People, et accommodation at a hotel, inn,
al., 101 Phil. 114] ). restaurant, boarding house, lodging
house, or apartment house;
Under Presidential Decree No. 115, the failure b. Without paying therefor;
of the entrustee to turn over the proceeds of the c. With intent to defraud the proprietor
sale of the goods, documents, or instruments or manager.
covered by a trust receipt, to the extent of the
amount owing to the entruster, or as appearing in 2. a. Obtaining credit at
the trust receipt; or the failure to return said any of the establishments;
goods, documents, or instruments if they were not b. Using false pretense;
sold or disposed of in accordance with the terms of
the trust receipt constitute estafa. 3. a. Abandoning or surreptitiously
removing any part of his baggage in
Under paragraph (c) the establishment;

1. The paper with the signature of the offended b. After obtaining credit, food,
party is in blank; refreshment, accommodation;
2. Offended party delivered it to the offender; c. Without paying.
3. Above the signature of the offended party, a
document is written by the offender without Estafa through any of the following fraudulent
authority to do so; means under Article 315 (3)
4. The document so written creates a liability of,
or causes damage to, the offended party or Under paragraph (a)
any third person.
1. Offender induced the offended party to sign a
document;
Elements of estafa by means of false pretenses 2. Deceit was employed to make him sign the
or fraudulent acts under Article 315 (2) document;
3. Offended party personally signed the
Acts punished under paragraph (a) document;
4. Prejudice was caused.
1. Using fictitious name;
2. Falsely pretending to possess power, Under paragraph (b)
influence, qualifications, property, credit,
agency, business or imaginary transactions; or Resorting to some fraudulent practice to insure
3. By means of other similar deceits. success in a gambling game;

Under paragraph (b) Under paragraph (c)

Altering the quality, fineness, or weight of anything 1. Offender removed, concealed or destroyed;
pertaining to his art or business. 2. Any court record, office files, documents or
any other papers;
Under paragraph (c) 3. With intent to defraud another.

Pretending to have bribed any government Note: This article defines the 2 ways by which estafa in
employee, without prejudice to the action for general is committed. It provides the penalty which is
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dependent upon the amount of fraud or damage
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involved. However the maximum penalty of commission, or to be returned if
imprisonment is 30 years which is to be called as unsold.(referred to as goods received on
reclusion perpetua. consignment)
(d). For administration or for the accused to look
FIRST MODE OR KIND: after
With Unfaithfulness or by Abuse of Confidence (e). Receipt by an agent from the principal
(f). Received as pledge or property leased to the
I. ―By altering the substance, quantity or quality of any accused
thing of value which the offender shall deliver by virtue
of an obligation to do so, though based on an immoral In all the foregoing the same property received
or illegal consideration‖ given is the same property to be returned. (
Identity of the Article)Thus the bills coins or
 There was an agreement as to the kind, checks deposited in the bank, or is given by a
quantity or quality of the thing to be delivered lessee as advanced deposit: or paid to a school
 The accused misrepresented that the thing he subject of reimbursement; even if spent, does
now delivers is of the same kind, quality or not constitute conversion. The same bills, coins
quantity agreed upon when in truth it is not or checks originally given are not the same bills,
coins or checks to be returned, but their
Examples equivalents.

1. The accused received money and claims the Element No. 2.

goods he is giving is the 10 kilos agreed There was a conversion or diversion i.e after
upon when in truth it is only 8 kilos; it is the receipt of the property, it was used or disposed of by
white sugar when in truth it is brown or that the accused as though it were his own, or that he
it is the 5 kilos of shabu for which he deviated or used to the property to a purpose different
received payment but what he gave is 3 from that agreed upon.
kilos only
2. The accused claimed there were 100 sacks o Conversation includes personal appropriation
of palay in his warehouse which he used as although it is not necessary that the accused
pledge when in truth there as only 90 sacks. personally benefited. It includes as well
denying the receipt of the property
II. ―By misappropriating or converting money or goods
or other property received by the offender under an o Examples of diversion:
obligation to make delivery or to return, or by denying (a). The article was to be sold in cash but the
receipt thereof ― accused sold it on credit
(b). Article is to be sold but the agent pledged
This is what is referred to as ―Estafa by Conversion‖ it and failed to account for the money
received
Element No. 1. (c). Note however that if the article is to be
The personal property was received or sold for a fixed amount but it was sold for
voluntarily delivered to the offender under any less, there is no estafa. But if the agent
form of contract or arrangement so long as there misappropriates the proceeds there is
was an obligation on the part of the offender to estafa
deliver the property to another or to deliver to the (d). If the article is only to be pledged but it
offender party, or to return the same property. was instead sold, the crime is theft.

o This contracts give juridical possession to the o In case of delay in the fulfillment of a trust: as
offender which means the transfer or delivery when the money entrusted to Juan for delivery
of the property to the accused was made by to Pedro was given to Pedro belatedly. There
virtue of an obligation created by a valid is no estafa but only civil liability
contract which was mutually consented to, or
created by law, which gives the offender a o If the accused retained or deducted his
right to the possession which he can set up commission from the proceeds of the sale of
even as against the transferor the goods:

o Thus in the following examples note that  There is estafa if retention was not
property was received: authorized or agreed upon
(a). For safekeeping or for deposit such as goods  Even if not authorized there is no estafa if
delivered to the hotel management the purpose is as a protection against
(b). In trust for delivery to another possible civil controversy as where there is
(c). On commission as in articles given to sales a pending mutual accounting; or the
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agents to be sold and the agent receives a principal failed to pay the accumulated
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commissions in an amount larger than evidence of misappropriation. This demand may be
that retained formal or verbal. Even a query as to the
 If the accused was given the option to whereabouts of money is tantamount to a demand.
either return or pay the value of the
article, the liability is only civil NOTE: It be understood therefore that demand is
not required if there is evidence if misappropriation
o If the thing was delivered to a third person or conversion. Suppose there is no direct evidence
of the misappropriation or conversion, and there
 If to a sub-agent there is no estafa even if was no prior demand made on the accused, will a
the reason for the non-return is due to charge for estafa still prosper? Yes. The effect of
acts of the sub-agent, unless delivery to a this absence of prior demand is that proof of
third person was expressly prohibited misappropriation is more difficult to obtain. To
 Delivery to a sub agent should not make the proof easier, a demand may be made so
however be a mere subterfuge to explain that if the accused failed to account, then this will
the non-production of the article be circumstantial evidence of actual
misappropriation.
o If the thing was leased and was sold during
the period of lease there is estafa or if the III. ―By taking advantage of a signature in blank and
lessee asserts ownership and refuses to by writing any document above a signature in blank
return. without the knowledge or consent of the victim‖

 This presupposes that: a paper which bore the

Questions & Answers
signature of the victim was voluntarily
delivered to the accused; that there was a
Q: X rented the taxi of Y and used it as a public specific instruction on what the accused was
transport. X thereafter sold the taxi. What supposed to write; but the accused wrote
crime was committed? something different.
 If the document was not voluntarily delivered,
Third element: the crime is falsification, so also if there was a
That the act resulted to damage or prejudice writing which was altered.
 If however the signature was procured
 The person damaged need not be the legal through fraud, the crime is estafa by deceit.
owner of the goods as the damage may befall  Example: (1) X handed a signed check to Y
a person other than the owner. with the agreement that Y place the amount of
P10,0000.00 but Y wrote P20,000.00. (2) X
Is demand an element in estafa by conversion? gave a bond paper already signed by him with
the instruction for Y to fill up the paper by
The case of Lee vs. People (455 SCRA 256) settled placing thereon the conditions agreed upon. Y
the question: added other conditions.

Facts: The accused failed to remit to the

corporation the amount he received and collected. SECOND MODE OR KIND:
He was charged for estafa with abuse of confidence Estafa By Means of False Pretenses or Deceit
under Article 315 Paragraph 1 (b). He moved to Executed to or Simultaneously with the
have his conviction be reversed arguing that there Commission of the Fraud
as no prior demand made on him to account and
remit the money. Introduction:
 Deceit assumes so many hues or forms. It so
Held: Demand is not necessary. broad as to include any falsehood, or lie, false
assertion, or presenting something which the
1. Demand is not an element or a condition accused knows is untrue. Making assurances
precedent to the filing of a complaint for estafa. of doing an act, giving or delivering, which
Indeed the accused maybe convicted of the felony accused knew he has no capability or intention
under Article 315 (1-b) if the prosecution proved of fulfilling. (Glib tongue or sweet words)
misappropriation or conversion by the accused of
the money or property subject of the Information.  The victim must not know or be aware of the
In a prosecution for estafa, demand is not true state of things and he must have relied on
necessary where there is evidence of the misrepresentation of the accused. Had it
misappropriation or conversion. not been for what the accused told him, the
victim would not have transacted with the
2. However, failure to account upon demand for accused.
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funds or property held in trust, is circumstantial
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o The deceit, must be prior or
Questions & Answers
simultaneously committed with the act of
defraudation
Q: Money was given on a promise by the
o The deceit must be the efficient cause or accused for approval of certain documents
primary consideration which induced the which the accused did not succeed in having
offended party to part with his money or be approved. Is there estafa?
property (Answer).None. There is only a contract of
services unless the accused had no intent to
o It need not be of things possible perform the services at that time, or if he
made representations which were false.
I. ―By using fictitious name, falsely representing to
possess power, influence, qualifications, property, II.‖ Altering the quality, fineness, or weight of anything
credit business, or imaginary transactions‖. pertaining to his art or business‖

 Fictitious name is not necessarily an alias but it  This has been supplanted by the law on
covers every situation where the accused Weight and Measurements which includes the
misrepresents himself in order to be able to manipulation of weighting scales.
catch the victim unaware and therefore willing
to deal with the accused. Thus one who III. ―By pretending to have bribed a government
projected himself as a Volunteer Teacher and employee ―.
thereby gained the trust of the students, after  The claim of bribery is a mere pretense to
which he was able to convince them to give obtain money from a person.
their money to him, used a fictitious name.
 The public official may charge the accused for
 Illustrations: libel or slander
1. Illegal Recruitment where accused represents
their capacity to work for a person‘s‘ visa  Example: To facilitate the release of papers or
and to secure a job abroad; or that they for a favorable decision, the accused obtained
have contacts who can facilitate the money from complainant supposedly to be
issuance of visas or the procurement of jobs given to the officer.
abroad. This includes the scheme of
advertising one‘s business as ―Visa IV. ―By Issuing or Postdating a check without or
Consultancy‖ as front for illegal recruitment. against insufficient acts.‖
2. Offering Get-rich-quick schemes or
pyramiding or promising big return of  The deceit is in the act of issuance of a check
investments under the ― Ponzi scheme‖; or since there is implicit an assurance that the
to invest in U.S. Treasury Warrants. check will be backed up by funds when
3. Hiring a vehicle with assurance to pay when presented to the drawee bank.
actually he has no money
4. Pretending the assured is dead in order to  Elements (Sir Sagsago):
collect the insurance
5. Encashing a forged check by misrepresenting 1. The accused postdated or issued a check in
ones self to be the payee giving rise to payment of an obligation contracted at the
estafa through falsification time of issuance (kaliwa-an)
6. Selling a non existing property 2. At the time of issuance, the accused has no
7. Placing orders on a COD basis but thereafter funds in the bank or the funds were
making excuses for not paying on cash basis insufficient
8. Pretending the ability to locate buried 3. The payee has been defrauded or damaged
treasures
9. Putting up a bank then running away with the  Important considerations:
deposits
10. Enticing people to invest in a business which o The check was issued for the purpose of
does not exist contracting or creating an obligation. It
12. Advertising as real estate developers when was not issued for a pre-existing
in truth the accused does not have the obligation or one already existing prior to
capability to fulfill his promises of a house the issuance of the check.
and lot.
13. Those who represented themselves as  Issuing a bad check to pay purchases
members of a religious group and convinced is estafa
people to make donations to them.  If the check is to pay a loan there is
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 Rediscounting a check is estafa  If within the 3 day period the victim
 Check issued to pay the installment accepted another check as
due on a deed of sale is not estafa replacement for the original check
which was dishonored, but the
o The payee did not know or was not replacement check in turn bounced,
informed of the lack or insufficiency of the the accused is not liable for estafa
funds at the time the check was given him upon the first check as he was not
any more obligated to fund the first
o The check was issued as payment i.e. to check within the 3 day period. The
be encashed by the holder, and not as presumption of deceit does not apply
guaranty check or as security check or any more. (PP vs. Juliano 448 SCRA
memorandum check or as an 370).
accommodation check

o If there was no consideration, there is no Acts punished: under Paragraph (e)

estafa
1. Obtaining food, refreshment and accommodation
in a hotel, inn, restaurant, boarding house, lodging,
Questions & Answers
house or apartment houses without paying
therefore (Crime known as Eat, Drink, Sleep and
Q: Is the payee liable if he negotiates the Run)
check which turned out to be without
funds?  The accused impliedly represents that he has
the means to pay
A: Yes if he was in conspiracy with the
drawer, or under paragraph 2(a) i.e. (by 2. Obtaining credit at a hotel, inn, restaurant
pretending an imaginary transaction, or boardinghouse, lodging house, or apartment house
by means of deceit). by the use of any false pretense

3. Surreptitiously abandoning or removing any part

Q: X gave his check to Y for Y to show his of the luggage after obtaining food, refreshments or
creditors that he ( Y) be given time to accommodations from said establishments without
pay . But Y negotiated the check to Z paying
which check bounced. Who is liable?
 Refers to transients and not where there is a
A: It is Y. contract of lease unless false pretenses
applies.
Q: Y gave his check to X as payment and Y
negotiated the check to Z. The check Estafa Through any of the following fraudulent
bounced. Question: Can Z file estafa means:
charges against either X or Y?
I. By inducing another, by means of deceit, to sign any
o If the maker or drawer stops the payment document
of the check for a valid reason, he is not  Not by violence else it is either coercion or
liable. Examples: that the check was Execution of Deeds by Means of Violence
stolen or the goods sold to him were  If the victim is willing to sign but a different
defective, are valid reasons for stopping document is prepared the crime is falsification
payment.
II. By resorting to some fraudulent practice to ensure
o Presumption of deceit constituting false success in a gambling game
pretense or fraudulent acts
 There be honor among gamblers
 Deceit is presumed from the failure to  Examples: ―pikit‖, using cards with signs
deposit the amount necessary to (readers), secret connivance among several to
cover the check within three days win over another
from receipt of notice from the bank
or payee/holder that the check has III. By removing, concealing or destroying, in whole or
been dishonored. Proof of receipt of in part, any court record, office files, documents or
notice, not just the sending, is other papers
essential for the presumption to arise.
 The purpose must be to defraud else it is
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malicious mischief
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 Not by the custodian else it is infidelity  Supreme Court Adm. Circular No. 12-2000
 Example: concealing the receipt of a deposit or authorized judges to impose fine only as a
cash bond penalty in lieu of imprisonment, depending on
the circumstances, thus:
VIOLATION OF B.P. 22 ―The circular does not decriminalize
B.P. 22 but merely lay down a rule of
Purpose: preference in the application of penalties.
Where the circumstances of the case, for
To prevent the proliferation of worthless checks in instance, clearly indicate good faith or a clear
the mainstream of daily business and to avert not mistake of fact without taint of bad faith, the
only undermining of the banking system, but also imposition of fine alone maybe considered as
the infliction of damage and injury upon the trade the more appropriate penalty. The rule of
and commerce occasioned by the indiscriminate preference does not foreclose the possibility of
issuance of such checks. (They are referred to imprisonment… neither doe sit defeat the
either as ―watered checks‖, ―bouncing checks‖, or legislative intent behind the law… the
―worthless checks‖) determination of whether the circumstances
warrants the imposition of a fine alone rests
B.P. 22 is constitutional and does not violate the solely upon the discretion of the judge‖
prohibition against non-imprisonment for non
payment of a debt. In truth it is not the non-  The court may impose subsidiary penalty for
payment of the debt which is punished but the act failure to pay the fine
of issuing a worthless check.

Acts Punished Necessity of Written Notice of Dishonor

1. The making, drawing or issuance of any check to  The notice of dishonor must be in writing.
apply on account or for value, knowing at the time Verbal notice is not enough. (Marigomen vs.
of issue that the drawer does not have sufficient People, May 26, 2005), (Ongson vs. PP, Aug.
funds in ,or credit, with the drawee bank. In this 12, 2005)
case the check is a worthless check at the time it is  The presumption of knowledge can not arise‖
issued. if such notice of non payment by the drawee
bank is not sent to the maker or drawer, or
 If issued by a juridical person those liable are there is no proof as to when such notice was
those who signed the check. But a mere received by the drawer, since there would
employee tasked to sign corporate checks in simply be no way of reckoning the crucial 5
blank may not be deem to have knowledge of day period ( Dico vs. C.A. ( Feb. 28, 2005)
the insufficiency of funds. Ongson vs. PP ( Aug. 12, 2005)
 One who co-signs without knowledge of lack  The notice may be sent by the offended party
or insufficiency of the funds is not liable. or the drawee bank ( Dico vs. CA, Feb. 28,
2005).
2. Failure to keep sufficient funds or to maintain a
credit to cover the full amount of the check if
presented within a period of 90 days from the date Re: presentation of drawee bank representative
appearing thereon. The check may be good at time as witness
of issue but not at the time of presentation.
 It is not required, much less indispensable, for
 The fact that the check was presented beyond the prosecution to present the drawee bank‘s
the 90 day period is of no moment. The 90 representative as a witness to testify on the
day period is not an element but merely a dishonor of the check. The prosecution may
condition for the prima facie presumption of present…. Only the private complainant as
knowledge of insufficiency of funds witness to prove all the elements of the
 Under Banking practices the check may be offense. Said witness is competent to testify
presented within 6 months from its due date, and qualified to testify that upon presentment
thereafter it becomes stale. for payment, the subject check was
dishonored by the bank (Recuerdo vs. PP, 443
Penalty. Phil. 770 ; Ongson vs. PP ( Aug. 12, 2005)

Imprisonment of 30 days and a fine of not less

than but not more than double the amount of the Requirements for Liability and Defenses Allowed
check but not to exceed P200,000.00
Vergara vs. People (February 04, 2005)
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Facts: The accused issued a check which was time the accused was informed up to
dishonored. She was verbally informed of the the filing of the case, she made
dishonor. She then replaced the check with six (6) payments which covered the value of
other checks. Payments were made after the the checks.‖
dishonor but the payments were applied first to the
interests. Three years later the accused was (Note: In Griffith vs. CA (379 SCRA 94)
charged for Violation of B.P. 22. the accused was acquitted of a charge
filed 2 years after the complainant
Held: collected more than the value of the
1. The requirements for conviction of B.P. 22 are: check. Ratione Cessat Lex, et Cessat lex)
a). The fact of the issuance of a check
b). The fact of dishonor the check (e). In Macalalag vs. People ( 511 SCRA 400;
c). Knowledge at the time of the issue of the Dec. 20, 2006) the court held: the principle
insufficiency of funds in Medel vs. CA ( 299 SCRA 481) as
(i) It maybe actual knowledge or reiterated in Ruiz vs. CA (401 SCRA 410)
(ii) Presumed Knowledge if (a) the applies to a prosecution for Violation of B.P.
check was presented within 90 22. ( In Medel the court ruled that if the
days from the date of the check; stipulated interest is excessive, iniquitous,
(b) the maker /drawer received unconscionable and exorbitant, said interest
written notice of the dishonor may be declared illegal and the interest is
and (c) he failed to make set at 12% per annum). The trial court may
arrangements within five (5) thus determine whether the interest of the
banking days from receipt of the loan covered by the check is unconscionable
written dishonor, for the payment or not. It may then declare that a check
of the check has been fully paid if the interest is
unconscionable and hold the accused
2. The defenses include: not liable for violation of B.P. 22 if said
amount was paid prior to the
a). There was no written notice of dishonor presentation of the check with the
b).There is no proof of the receipt of the notice bank or within the 5 days after notice
and the date thereof of dishonor.
c) Arrangements were made for the payment of
the checks including replacement with new f). ―There is no violation of B.P. 22 if the
checks, within five days from receipt of complainant was actually told by the drawer
notice that he has no sufficient funds in a bank‖ (
d) The Utilitarian Theory if there was a full Macalag vs. PP, 511 SCRA 400)
payment despite which a criminal case is
filed as a collection suit g). If there is a variance or discrepancy in the
identity of the check described in the
― The accused cannot be penalized for the Information with the check presented in
issuance of a check which has already been court as this violates the right of the accused
satisfied. to be informed of the offense charged and
can not thereby be convicted ( Dico vs. CA,
B.P. 22 … was devised to safeguard Feb. 25, 2005)
the interest of the banking system
and the legitimate public checking h). That the check was issued merely to
account user. It was not intended to accommodate the complainant is not a
shelter or favor or encourage users of defense ( Steve Tan vs. Mendez, June 06,
the system to enrich themselves 2002)
through the manipulation and
circumvention of the noble purpose 3. Other defenses include:
and objective of the law. Under the
Utilitarian Theory or protective a). Prescription of the crime
theory in criminal law, the b). Forgery, or that the accused did not
primary function of punishment is voluntarily part with the check
the protection of the society c) The check became stale when presented
against actual or potential wrong
doers.
Questions & Answers
The accused can hardly be classified
as a menace against whom the Q: Is wife liable if only the husband signed the check
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society should be protected. From the given as security for a loan?
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is the agent, delivery to him is delivery to the
Ladonga vs. PP ( Feb. 17, 2005) payee as the principal.

This involves the application of the Revised 3. In the place of dishonor i.e. where the drawee
Penal Code in a suppletory character pursuant to bank is located
Article 10. Thus the following principles apply: a).
Provisions on subsidiary imprisonment. b). Principle Note: Violation of B.P. 22 may be a transitory crime
of Conspiracy as analogous to the provisions on
principals. There was however no proof the wife Other Important Considerations:
performed an overt act in pursuance of the
complicity which overt act may either be active  There is no independent civil action allowed and
participation in the actual commission of the crime, no reservation is allowed as the civil liability
or it may consist of moral assistance to the co- arising from the crime is mandatorily
conspirator by moving them to execute or to determined in the criminal case.
implement the criminal design.  How many charges ought to be filed if there
were several checks issued and dishonored?
Q: May a person be held liable if he issues a check (Personal Opinion- Sir Sagsago): If the checks
which is drawn against the account of another were issued simultaneously for one and the
person? same transaction, against the same account, and
all are dishonored, there should only be one
A: Yes. The law includes within its coverage, the offense of violation of B.P. 22.
making and issuing of a check by one who has no
account with a bank, or where such account was
already closed when the check was presented for Estafa Against Realty
payment even if the owner of the said account Article 316. Other Forms of Swindling
consented to the making of the check.
NOTE: As a rule estafa involves only personal
Distinction From Estafa properties. However Article 316 provides the situations
when estafa may involve real properties.
1. Violation of B.P. is malum prohibitum a crime
against public interest whereas estafa is mala in I. Any person who, pretending to be the owner of any
se real property, shall convey, sell, encumber or mortgage
the same.
2. Violation of B.P. 22 does not require intent and
damage as elements which matters are the Elements
elements of estafa
1. There is an immovable, such as a parcel of
3. Violation of B.P. 22 applies to all kinds of checks land or a building;
whereas estafa applies only to checks issued as 2. Offender who is not the owner represents
payment for a simultaneous obligation himself as the owner thereof;
3. Offender executes an act of ownership such as
4. In Violation of B.P. 22 the drawer is given 5 days selling, leasing, encumbering or mortgaging
to pay or make arrangements for the payment of the real property;
the check as against 3 days for estafa 4. The act is made to the prejudice to the owner
or a third person.
Note: The accused may therefore be prosecuted
both for Estafa and for Violation of B.P. 22 over the  The property must actually exist but it does not
same check. Further, acquittal or conviction under belong to the accused. The latter simply
one law will not give rise to a double jeopardy if the pretends he is the owner.
accused is prosecuted under the other law.  If the property does not exists but the accused
pretends it exists, or the property is a personal
property, the crime is estafa under article 315
Venue of the criminal action for Violation of B.P. (par. 2-a) i.e. pretending to possess property
22  Examples: selling a public land; mortgage of a
land/building which the accused has already sold
1. In the place of issue i.e where the check was to another; second sale of the same property to
actually made or drawn the victim

2. In the place of effective delivery in the event the II. Disposing off encumbered property as if it were
check is personally given to one to deliver to the unencumbered (in other words, by disposing of real
payee but the recipient is not acting as the agent property as free from encumbrance, although such
26
of the payee ( Lim vs. Rodrigo ). If the recipient encumbrance be not recorded).
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 If the possessor is not the lawful possessor,
Elements there is no estafa.

1. The thing disposed is a real property:

Questions & Answers
2. Offender knew that the real property was
encumbered, whether the encumbrance is
recorded or not; Q: X saw his stolen cellphone in the possession of Y
3. There must be express representation by and pretends he wants to buy the cell phone.
offender that the real property is free from After it is given to him by Y, he declares he is
encumbrance; the owner and refuses to pay or to return it. Did
4. The act of disposing of the real property is X commit estafa?
made to the damage of another. IV. By executing a fictitious contract to the prejudice of
another.

 The real property has been mortgaged or is  The accused must be a debtor and the purpose
under any other valid encumbrance, as when it is to prevent a creditor from running after the
has been used as property bond, or was property to collect the debt.
attached. If the prior encumbrance is but a  ―Fictitious contract‖ refers to a simulated
verbal agreement, the same is not enforceable contract i..e there is no real consideration such
hence no estafa is committed. that the ownership remains with the accused. If
 The accused must expressly misrepresent that the ownership has been validly transferred, the
the property is free from any lien or crime would be Culpable Insolvency.
encumbrance. Mere failure to disclose even if
intentional, will not constitute a violation. This V. By accepting compensation for services not actually
requires that there be an express warranty that rendered or for labor not performed.
the property is clean.
 The acceptance must be in bad faith in that the
o But the failure or omission to disclose accused knows he has not performed any service
constitutes ― civil fraud‖ which may be the or labor. If he was in good faith the money may
basis for damages, but not for estafa under be recovered as this is a case of solution indebiti.
this article.  Ex: Impersonating a laborer and receiving the
wages of the latter
o This express warranty is often contained in .
the body of the Deed of Sale itself VI. Selling or mortgaging of real property used as bond
without judicial authority (in other words, selling,
 The rule on constructive notice concerning titled mortgaging or encumbering real property or properties
lands does not apply with which the offender guaranteed the fulfillment of
his obligation as surety)
III. The owner of a personal property who shall
wrongfully take it from its lawful possessor to the Elements
prejudice of the latter or to a third person
1. Offender is a surety in a bond given in a
Elements criminal or civil action;
2. He guaranteed the fulfillment of such
1. Offender is the owner of personal property; obligation with his real property or properties;
2. Said personal property is in the lawful 3. He sells, mortgages, or in any manner
possession of another; encumbers said real property;
3. Offender wrongfully takes it from its lawful 4. Such sale, mortgage or encumbrance is
possessor; without express authority from the court, or
4. Prejudice is thereby caused to the possessor made before the cancellation of his bond, or
or third person. before being relieved from the obligation
contracted by him.
 The taking should be by deceit and not by force
else it is coercion. Note: There must be actual damage and not just
temporary prejudice.
Example: the debtor enticed the creditor to
handover the watch used as a pledge on the
pretext that the debt is to be paid. Upon being
handed the watch the debtor does not pay and
does not return the watch.
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Article 317. Swindling A Minor new ( when in fact it is not) ( Guinhawa vs.
People, Aug. 25, 2005)
Elements
2. Interpreting dreams, by making forecasts, by telling
1. Offender takes advantage of the inexperience fortunes, or by taking advantage of the credulity of
or emotions or feelings of a minor; the public in any other similar manner for profit or
2. He induces such minor to assume an gain
obligation or to give release or to execute a
transfer of any property right;  This is called the ―Fortune Teller‟s Crime”
3. The consideration is some loan of money,  Q: Suppose the prediction came true?
credit or other personal property;
4. The transaction is to the detriment of such
minor.
Chattel Mortgage
Notes: Article 319. Removal, Sale or Pledge of
 This covers any form of deception where the Mortgaged Property
accused took advantage of the inexperience or
emotion or feelings of a minor to his detriment Acts punished
and shall induce the minor to:
1. assume any obligation, such as borrowing 1. knowingly removing to any province or city any
money with high interest property mortgaged under the chattel
2. give any release as by condoning any mortgage law other than the one in which it
indebtedness due to the minor was located at the time of the execution of the
3. execute any transfer of any property, such as mortgage, without the written consent of the
exchanging his property with a less valuable mortgagee or his representative (i.e. his
property executors, administrators or assigns)

 The property involved should not a real property Elements:

as minors cannot convey or encumber real
property without the consent of his parents or a. Personal property is mortgaged under
guardians, otherwise it would be estafa under the Chattel Mortgage Law;
Article 318. b. Offender knows that such property is
so mortgaged;
c. Offender removes such mortgaged
Article 318. Other deceits personal property to any province or
city other than the one in which it was
Acts punished located at the time of the execution of
the mortgage;
1. Defrauding or damaging another by any other d. The removal is permanent;
deceit not mentioned in the preceding articles; e. There is no written consent of the
mortgagee or his executors,
 ―Any other deceit‖ covers any form of administrators or assigns to such
deception which is not punished under either removal.
article 315, 316 or 317. It is intended as the
catchall provision for that purpose with its Notes:
broad scope and intendment.  the removal must be to defraud the
mortgagee and not due to any valid
 Examples: reason, such as a change of address, or if
(i). Obtaining a loan on the promise that the the properties are vehicles which travel
accused shall mortgage a property which the from one place to another . The purpose
accused latter refused to do is so that the mortgagor cannot foreclose
(ii). A person presents herself as house help, on the mortgage
requests for an advance, and then  But if the creditor chooses to collect by
surreptitiously leave filing a suit, the debtor is relieved from
(iii) Bus conductor who issues a ticket for a liability under Article 318
lesser amount than what is actually collected
which ticket he then presents to the 2. Double sale, pledge or mortgage of the
operator, and thereby pocketing the property without the written consent of the
difference mortgagor written on the back of the
(iv). The false or fraudulent representation by a mortgage and recorded in the Office of the
seller that what he offers for sale is brand Register of Deeds.
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Elements: 2). Property of the accused if the arson was under
circumstances which exposes danger to the life
a. Personal property is already pledged or property of another
under the terms of the Chattel Example: burning ones old house locate in a
Mortgage Law; heavily populated residential
b. Offender, who is the mortgagor of
such property, sells or pledges the  As to the kind of property: these may be real or
same or any part thereof; personal, including plantation, farms, pasture
c. There is no consent of the mortgagee land, crops, forest land, plants and animals
written on the back of the mortgage except large cattle (as the latter is cattle
and noted on the record thereof in the rustling)
office of the register of deeds.
Note: The value of the property is immaterial

Crimes Involving Destruction Penalty for Arson

1. Arson For purposes of the penalty arson is classified

into:
Laws Involved
1) Destructive Arson where the penalty is
1. P.D.1613 which repealed Articles 320 to 326-B Reclusion Temporal Maximum to Reclusion
of the Revised Penal Code Perpetua
2. P.D. 1744 which revived Article 320
3. R.A. 7659 which amended Article 320 as 2). Other cases of Arson where the penalty is
revived. reclusion temporal to reclusion perpetua

Concept: 3). Simple Arson of another‘s property

punishable by prision mayor and
This is the crime committed by any person who
destroys property by means of fire. 4). Arson of one‘s property

 There are two categories of the crime of arson Factors affecting penalty
(per PP. vs. Malngan 503 SCRA 294) based on
their significance on the social, economic, 1). Ownership of the property
political and national security implications
2). The kind or nature of the property such as:
1. Destructive Arson under Article 320, as whether it is a building or not, if a building
amended by R.A. 7659. whether it is a public building or a private
dwelling ; a religious building or one devoted
o This contemplates the malicious burning to culture, education or social service
of structures, both public and private,
hotels, edifices, trains, vessels, aircrafts, 3). The presence of the special aggravating
factories and other military, government, circumstances of:
or commercial establishments a) If with intent of gain, such as to collect
the insurance premium
2. Simple Arson under P.D. 1613 which b). If committed for the benefit of another
contemplates the malicious burning of public c). If the offender is motivated by spite or
and private structures, regardless of size, hatred towards the owner or occupant
not included in Article 320 as Amended of the property burned
d). If committed by a syndicate i.e. if
o These includes houses, dwellings, planned or carried out by a group of 3
government buildings, farms, mills, or more persons ( syndicated arson)
plantations, railways, bus stations,
airports, wharves, and other industrial 4. If death results i.e if by reason or on the
establishments. occasion of arson death results

Property Subject of Arson o This is the special complex crime of Arson

Resulting in or accompanied by, Homicide.
 As to who owns the property burned: The term ―homicide‖ is in generic sense
1). Property of another, who may be a private and includes several deaths
person or the government
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o Death is not the purpose of the burning a) Ordinary Malicious Mischief: i.e. that of
otherwise the crime is murder but this private property where the penalty depends
crime is where the intention is to burn but on the value of the property, hence the
a person was killed property must have a valuation i.e. does not
exceed P200.00, more than P200.00 but not
Principles more than P1,000.00 and over P1,000.00

1. Arson is a continuous crime and a single offense Example: Writing graffiti or acts of
is committed even if on the same occasion of the vandalism
burning, several properties are burned, even if
belonging to several persons b). Special Malicious Mischief or Qualified
Malicious Mischief (Article 328)
2. The justifying circumstances of State of Necessity
may be invoked Acts punished

3. Conspiracy to Commit Arson is punishable as a 1. Causing damage to obstruct the

crime performance of public functions,
e.g. destroying the stage to prevent the
mayor from speaking;
2. Using any poisonous or corrosive
Article 327. Malicious Mischief substance;
3. Spreading any infection or contagion
Concept: among cattle;
4. Causing damage to the property of the
The crime committed by any person who shall National Museum or National Library, or
deliberately cause damage to the property of another to any archive or registry, waterworks,
due to hate, revenge, jealousy, anger, or any other evil road, promenade, or any other thing
motive. used in common by the public such as
promenades, waiting sheds, seats in the
Elements park
e.g. throwing human waste or urinating
1. Offender deliberately caused damage to the in a public street
property of another;
2. Such act does not constitute arson or other c). Malicious Mischief to means of
crimes involving destruction; communication or transportation
3. The act of damaging another‘s property was (Article 330)
committed merely for the sake of damaging it;
 this is committed by damaging any railway,
Principles telegraph or telephone lines

1. The destruction should not however be by means  If the damage results to any kind of
of fire otherwise the crime is arson accident, such as derailment, collision, the
2. The property should not include large cattle else it penalty is higher. This is in addition to the
is cattle rustling liability for the other consequences of his act

3. If animal is killed to protect one‘s farm or Example: The accused destroyed the
property, the principle of defense of property retaining wall of a road causing a jeep to fall
may be invoked down the ravine killing the driver. He is
liable for Malicious Mischief (for the
4. This is always intentional and cannot be destruction of the wall) and a separate
committed by negligence. If destruction was due offense of Reckless Imprudence resulting in
to lack of foresight or skill, the nomenclature of homicide and damage to property
the crime is imprudence resulting to damage to
property. d). Malicious Mischief of public statues or
of useful or ornamental monuments or
5. If the property or part thereof is thereafter taken, of public ornamental paintings (Article
the crime is theft and malicious mischief is 331).
absorbed
Example: Painting the statute of the heroes
6. For purposes of the penalty malicious mischief is in public parks
sub classified into:
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TITLE XI
Exemption from Criminal Liability CRIMES AGAINST CHASTITY
for Crimes Against Property Crimes against chastity

Article 332. Persons Exempt from Criminal 1. Adultery (Art. 333);

Liability 2. Concubinage (Art. 334);
3. Acts of lasciviousness (Art. 336);
Introduction: 4. Qualified seduction (Art. 337);
5. Simple seduction (Art. 338);
 Article 332 provides for an absolutory cause in 6. Acts of lasciviousness with the consent of the
the crimes of theft, estafa and malicious offended party (Art. 339);
mischief by directing that “No criminal but 7. Corruption of minors (Art. 340);
only civil liability, shall result” if the crimes 8. White slave trade (Art. 34);
are mutually committed by the persons 9. Forcible abduction (Art. 342);
enumerated therein. This is based on the 10. Consented abduction (Art. 343).
relationship between the accused and the
victim.
 The exemption applies provided the crimes are I. Introduction:
not complexed with other crimes
A. (Personal Opinion). In view of the provisions of
Persons exempted from criminal liability R.A. 8353 ( The Anti Rape Law of l997), R.A.
9208 ( The Anti Trafficking in Persons Act of
1. Between Spouses; ascendants and descendants, or 2003) the only crimes against chastity should be
relatives by affinity in the same line :

o This includes between parents and children - 1. Adultery (Art. 333)

in- law; step children and step parents; 2. Concubinage (Art. 334)
adopter and adopted, including recognized 3. Acts of Lasciviousness
natural children with their natural parents a). Forcible ( Art. 336)
o Spouses include common-laws spouses but not b). Consented (Art. 339)
those simply in a live-in-relationship. This is 4. Abduction
because the property relations between a). Forcible (Art. 342)
common-law spouses is that of the co- b). Consented (Art. 343)
ownership
o Spouses who are legally separated are B. Rape ( Article 335) is now Article 266-A and 266-B
included so long as there was no dissolution as crimes against persons
yet of their property
C. Corruption of Minors under Article 340 and White
2 The widowed spouse with respect to the property Slave Trade under Article 341 are now punished
which belonged to the deceased spouse before the as Trafficking In Persons.
same shall have passed into the possession of another.
II. (Personal Opinion). As to the crime of Seduction, a
o If the property is subject of judicial settlement, qualification has to be made because it appears this
and is placed by the court under an crime has been modified by rape committed by means
administrator after an inventory has been of fraudulent machination or by grave abuse of
approved, the property is said to have passed authority.
into the possession of another
In seduction the victim consented to the sexual
intercourse.
Questions & Answers
A. In qualified seduction (Article 337) what makes
Q: Suppose the widowed spouse took and spent the the offense qualified is because of the character of
legitime of the heirs, was criminal liability incurred? the accused, the excess of power or abuse of
confidence. Thus the consent of the victim was
3. Brothers and sisters, brothers/sisters-in-law, if living obtained because of any of the following:
together.
(i). Abuse of authority such as by persons in
o Not if the accused is just a visitor or given authority, guardians, teachers, persons who
temporary shelter by the victim are entrusted with the education or custody
of the victim
(ii). Abuse of the confidence reposed in them
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domestics i.e. one living under the same 2. She has sexual intercourse with a man not her
roof as the victim husband;
(iii). Abuse of relationship such as by brothers or 3. As regards the man with whom she has sexual
ascendants intercourse, he must know her to be married.

Under the Anti Rape Law, there is rape by Notes:

―grave abuse of authority‖ hence it would seem
that if the accuse falls under any of the  The gist is actual sexual intercourse and not
foregoing classification but if the abuse is not just mere romantic dating, or petting or kissing
―grave‖, the offense would still be qualified  There is no frustrated stage: it is either that
seduction. But when is the abuse considered the accused were able to engage in sex or not.
grave, so as to give rise to rape, and when is it  It is not a continuing crime because each
mild or not grave? separate sex act on a different occasion is a
different and a separate crime.
B. In simple seduction (Article 338) the seduction  This may be committed when a married
was ―committed by means of deceit‖. woman marries a second time without the first
having been judicially annulled or voided. Her
Deceit was understood to be generally in the liability is in addition to bigamy
form of unfulfilled promise of marriage. Hence,  The Judicial validity of the woman‘s marriage
it would seem that if the consent to sex was by is not material. It is enough that there was a
any artifice other than by a promise of marriage, marriage which has not yet been annulled or
the offense would be rape by ―fraudulent declared null and void.
machination‖.
Rationale:
C. Requirements for seduction or consented sexual
intercourse: 1. The possibility of introducing spurious heirs
1. The victim is a woman who must be over 12 (Criticism: this reason will not hold water if the
years because if her age is below 12 the woman is proven to be sterile)
offense is statutory rape 2. Violation of the marriage vows and the sanctity
2. She must not be over 18 years (it is presumed of the marriage based on the exclusivity of the
that if over 18 years, she is of sufficient sexual partner.
understanding to take care of her virtue and
chastity). However even if the woman is Defenses in Adultery
over 18 if there was ―Grave Abuse of
Authority‖ or ―fraudulent machination‖ the 1. Pardon by the offended spouse if (1) given to
crime would be rape. both the guilty parties and (2) prior to the
3. While the law requires the victim to be a institution of the criminal action
―virgin‖, this is to be understood as referring
to a woman of chaste character though she 2. Pardon may be express or implied, as by
may not literally be virgin. sleeping with the woman despite knowledge of
4. There must be sexual intercourse to be the adultery (Pardon of the Act)
consummated
3. Consent given prior to the adultery, such as in
mutual agreement to separate and to live with
Adultery and Concubinage another partner

(These two crimes are 4. Recrimination or mutual infidelity is merely

the crimes of criminal mitigating
conversation proper)
5. The fact that the woman is legally separated
Article 333. ADULTERY from the husband is no defense.

Concept: Principles in the Prosecution of Adultery

The crime committed by a married woman who shall 1. Direct evidence is not necessary as adultery
have sexual intercourse with a man not her husband, may be implied from the circumstances of
and by the man who has carnal knowledge of her, time, place and occasion
knowing her to be married‖
2. There may be a separate trial for the man and
Elements the woman
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1. The woman is married;
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3. The man may be acquitted if he did not know
the woman is married
Questions & Answers
4 If the man is married, he may also be liable for
concubinage and the married woman man may Q: Is concubinage committed by the man in
also be charged as a concubine providing the woman her own house or
apartment but does not live with her though
Special Extenuating Circumstance of Unjustified he regularly visits her thereat, at which time
Abandonment they engage in sex?

 The penalty is at least one degree lower General Notes:

 The essence is that the woman was forced to
commit adultery by reason of extreme  Unlike in adultery, the fact of criminal
necessity which refers to economic necessity conversation or sexual intercourse with a woman
and the need for survival, such as providing does not per se give rise to concubinage.
for the shelter and sustenance of her Further, each sexual act is not a separate
abandoned family. offense because concubinage is treated as a
continuing crime.

Article 334. Concubinage Note: In adultery the penalty is the same

for both the woman and man (Prision
How committed/ Acts Punished/ Concept: The correctional medium and maximum) but in
crime committed by a married man who: concubinage the penalty for the man is lower by
one degree ( prision correctional minimum and
1. Shall keep a mistress in the conjugal dwelling medium) while the concubine is given a
separate penalty which is destierro.
 the concubine must live in the conjugal
dwelling even for brief periods of time, and not  The woman is liable if she knows him to be
where she occasionally comes for a tryst or to married (even if unhappily at that and even if
spend the night therein her purpose is to provide comfort and
companionship)
2. Shall have sexual intercourse with her under  The defenses available in adultery also apply
scandalous circumstances such as consent and pardon.

 Proof of sex is not necessary but may be

Questions & Answers
inferred

 There be a public or open flaunting of the illicit Q: Can the man also claim, by analogy, the
relationship so that the public is scandalized, circumstance of unjustified abandonment which
shocked, or the conduct give rise to general led him to commit concubinage i.e. out of
protest, or that the relationship sets a bad necessity and the need for survival?
example.
 Example: being seen with the woman in social
and public gatherings; introducing or treating Article 335. Rape
the woman as though she were the wife
This has been repealed by Republic Act No. 8353 or the
Anti-Rape Law of 1997. See Article 266-A.
Questions & Answers

Q: Since public reaction is gauge of the scandal Article 336. Acts of Lasciviousness
is there concubinage if:
(i) openly going out is in places where the Concept:
two are total strangers
(ii) relatives and acquaintances accept the The act of making a physical contact with the body of
fact of the relationship, as when the wife left another person for the purpose of obtaining sexual
the man who now is cared and loved by gratification other than, or without intention of,
another woman? sexual intercourse.

3. Cohabit with her in any other place Elements

 To cohabit is to live together as husband and 1. Offender commits any act of lasciviousness or
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2. It is done under any of the following Article 337. Qualified Seduction
circumstances:
a. By using force or intimidation; Acts punished
b. When the offended party is deprived
or reason of otherwise unconscious; 1. Seduction of a virgin over 12 years and
or under 18 years of age by certain persons,
c. When the offended party is another such as a person in authority, priest,
person of either sex. teacher; and

 The contact may be by the body of the Elements

accused such as by the lips, hands, foot; or by
means of any object or instrument. In either a. Offended party is a virgin, which is
case there must be no form of insertion into presumed if she is unmarried and of
the anus, mouth or sex organ amounting to good reputation;
rape through sexual abuse. b. She is over 12 and under 18 years of
age;
 It is distinguished from Attempted Rape in that c. Offender has sexual intercourse with
there is no intent to have sexual intercourse her;
with the victim. The intent may be inferred d. There is abuse of authority,
from the circumstances of time, place, and confidence or relationship on the part
occasion, or inferred from the nature of the of the offender.
act itself.
2. Seduction of a sister by her brother, or
 It is distinguished from Unjust Vexation in that descendant by her ascendant, regardless
there is no lewd design in unjust vexation of her age or reputation.

Example: (i) The acts of an ardent lover such

as kissing, embracing arising from his passion, Person liable
are unjust vexation merely. (ii). The touching
of the private parts of a woman out of 1. Those who abused their authority –
curiosity is unjust vexation.
a. Person in public authority;
 If the acts of lasciviousness (including sexual b. Guardian;
intercourse) is performed upon a child c. Teacher;
exploited in prostitution or other sexual abuse d. Person who, in any capacity, is
(i.e. abuse other than the acts of entrusted with the education or
lasciviousness such as when the child is the custody of the woman seduced;
subject of an obscene publication or
pornography or of indecent shows) whether 2. Those who abused confidence reposed in
male or female, the acts would constitute them –
sexual abuse punished under R.A. 7610 ( The
Child Abuse Law) ( Olivarez vs. C.A., July 29, a. Priest;
2006) b. House servant;
c. Domestic;
Kinds:
3. Those who abused their relationship –
1. Forcible (Article 336) if made under
circumstances of forcible rape, i.e through a. Brother who seduced his sister;
force, threat, violation, intimidation, b. Ascendant who seduced his
descendant.
 The accused may be any person and the
victim may be a male or female
Article 338. Simple Seduction
2. Consented: (Article 339) if made under
circumstances of seduction whether simple Elements
or qualified i.e. a) victim is a female of
chaste character, b) over 12 years but 1. Offender party is over 12 and under 18
below 18 years, or a widow, c) there was years of age;
deceit or abuse of authority, abuse of 2. She is of good reputation, single or
confidence or abuse of relationship widow;
3. Offender has sexual intercourse with her;
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b. The abduction is against her will;
c. The abduction is with lewd designs.
Article 339. Acts of Lasciviousness with
the Consent of the Offender Party
Notes:
Elements
 This presupposes the use of force, violence
1. Offender commits acts of lasciviousness or threat or intimidation or any method to
lewdness; overcome her resistance, or to deprive her of
2. The acts are committed upon a woman the ability to resist
who is a virgin or single or widow of good  If the woman was thereafter raped, it the
reputation, under 18 years of age but over crime is Forcible Abduction with Rape, and if
12 years, or a sister or descendant, there be several rapes, the other rapes are
regardless of her reputation or age; considered as separate crimes.
3. Offender accomplishes the acts by abuse  From Kidnapping/Serious Illegal Detention
of authority, confidence, relationship, or
deceit. o In kidnapping, there is no lewd design but
to either deprive or restrain the woman of
her personal liberty/freedom of
Article 340. Corruption of Minors movement, or the purpose is to demand a
ransom
This punishes any person who shall promote o If several rapes were committed on the
or facilitate the prostitution or corruption of woman, the crime is kidnapping with rape
persons under age to satisfy the lust of and the other rapes are absorbed and are
another. aggravating circumstances while in
Abduction, the other rapes are separate
It is not required that the offender be the offenses
guardian or custodian of the minor.
 It is Trafficking in Persons if the purpose is for
It is not necessary that the minor be sexual exploitation, forced labor or services,
prostituted or corrupted as the law merely slavery, involuntary servitude or debt
punishes the act of promoting or facilitating bondage, or sale of organs
the prostitution or corruption of said minor and
that he acted in order to satisfy the lust of 2. Consented (Article 343:) the taking away of a
another. woman of good reputation, 12 years or over but
under 18 years of age, carried out with her consent
and with lewd designs.
Article 341. White Slave Trade
Elements
Acts punished
1. Offended party is a virgin;
1. Engaging in the business of prostitution; 2. She is over 12 and under 18 years of age;
2. Profiting by prostitution; 3. Offender takes her away with her consent,
3. Enlisting the services of women for the after solicitation or cajolery;
purpose of prostitution. 4. The taking away is with lewd designs

Notes:
Abduction
 There may or may not be deceit employed to
Concept: get the woman to agree, as for example,
convincing the woman to elope with the man.
The taking away of a woman with lewd designs i.e. to The consent must be given freely and
obtain sexual gratification. intelligently.
 There be lewd design else the crime may be
1. Forcible (Article 342): if the taking away is inducing a minor to abandon the home
against her will.
Article 344. Prosecution of Private Crimes
Elements
Necessity of a complaint i.e a formal denunciation
a. The person abducted is any woman, indicating that the victim and her family opt not to
regardless or her age, civil status, or keep the incident a private matter but to bring it out in
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Article 345. Civil Liability of Persons Guilty of
I. In Adultery and Concubinage: the complaint Crimes Against Chastity
can only be initiated by the offended spouse who
must still be married to the guilty spouse at the 1. Indemnification of the offended party. Moral
time of the bringing of the complaint, and not when damages is recoverable in acts of lasciviousness
the marriage has already been annulled or voided by the victim as well by the parents
at the time when the action was brought.
o against both guilty parties if both are alive 2. Acknowledgement of the offspring, unless the law
o provided there was no prior consent or should prevent him from so doing
pardon
3. To support the offspring
II. In Acts of Lasciviousness and abduction,
the complaint must be initiated by the following In the following there can be no
enumerated persons. acknowledgement :
(a). in cases of adultery and concubinage
NOTE: The enumeration is both exclusive (no (b). where the offended party is married,
other person has the personality to file except those provided that paternity is not that of the
in the enumeration) and successive (the order of husband
preference must be followed) : (c). when paternity can not be determined. Note
that DNA testing is accepted to determine
1. Victim or offended party unless the victim is paternity
incapacitated by reasons other than
minority. If she is of legal age, she alone can Note: Where there are several accused and
bring the action. paternity can not be determined, all must give
2. By either of the parents if the victim is a support.
minor who refuses to file, or is incapacitated
as when she is demented or insane
3. By either of the Grandparents TITLE XII.
4. By the legal or the court appointed guardian CRIMES AGAINST THE CIVIL STATUS OF
5. By the state as parens patriae when the PERSONS
victim dies or becomes incapacitated before
she can file the complaint and has no known Crimes against the civil status of persons
parent, grandparents or guardian
1. Simulation of births, substitution of one child
Defenses in Acts of Lasciviousness and for another and concealment or abandonment
Abduction of a legitimate child (art. 347);
2. Usurpation of civil status (Art. 348);
1. Pardon by the Offended Party 3. Bigamy (Art. 349);
4. Marriage contracted against provisions of law
o The pardon must be express (Art. 350);
o If the offended party is of legal age and is 5. Premature marriages (Art. 351);
not otherwise incapacitated, she alone can 6. Performance of illegal marriage ceremony (Art.
extend a valid pardon 352).
o If a minor but of sufficient discretion, the
victim can extend a valid pardon if she has
no parent, otherwise the pardon must be Article 347. Simulation of Births, Substitution of
concurred by the parent, grandparent or One Child for Another, and Concealment of
guardian Abandonment of A Legitimate Child

2. A valid Marriage between the Offended and the Acts punished

Offender i.e contracted in good faith
1. Simulation of births;
o extinguishes the criminal liability ( case will 2. Substitution of one child for another;
be dismissed) or remits the penalty ( 3. Concealing or abandoning any legitimate child
accused will not suffer the penalty with intent to cause such child to lose its civil
anymore). status.
o This benefits the co-principals (by
indespensable cooperation and inducement Principles
but nto co-principals by direct participation),
accomplices and accessories  In simulation and substitution, the child need
not be legitimate.
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 The purpose of the acts punished must be to be the Cesar Oracion in order to be addressed
cause the loss of the civil status of the child or as ―Dean‖
to obtain the civil status of another.
 Simulation of birth, the act of making it appear Other Related Crimes involving
that a woman gave birth to a child, must be in usurpation/impersonation
the record of birth/birth certificate. A birth
certificate is obtained indicating that the 1. May be Using Fictitious Name as when the
woman gave birth to a child when in truth she accused another to avoid being arrested for
did not. traffic violations.
2. Estafa as by pretending to be the creditor or
o If the simulation is in any other document, collector
the crime is falsification 3. Falsification as by pretending to be the payee in
o If the woman feigns or pretends to be a check
pregnant and then makes it appear she 4. Perjury
gave birth to a baby when in truth the
baby is that of another, such pretense is
not punished. But when she causes the Illegal Marriages
birth to be recorded, said act constitute
the crime of simulation of birth.
o Where the woman pretends to be Kinds of Illegal Marriages (i.e. those not recognized
pregnant and to give birth in order to or prohibited by law)
demand support from the alleged father,
the crime is estafa. 1. Bigamous Marriages (Art. 349)
2. Those contracted contrary to the Marriage Law
 The abandonment is not to kill but to cause it (Art. 350)
to lose its civil status. It consists of the 3. Premature Marriages (Art. 351)
practice of leaving an infant at the door of a
religious or charitable institution, hospitals, or
a foster home or the DSWD. The child be Article 349. Bigamy
legitimate else it is a crime against security i.e.
abandonment by persons having charge of the Concept:
education or rearing of the child.
The crime committed by a married person who
 Substitution has for its principal element the contracts a second or subsequent marriage before the
putting of a child in place of another born of a first has been legally dissolved or before the absent
different mother. This results to a change of spouse had been declared presumptively dead.
status because a child is introduced into a
family although said child is a stranger thereto. Elements
The child acquires a name, situation and rights
to which it is not lawfully entitled. 1. Offender has been legally married;
2. The marriage has not been legally dissolved
Example: Placing a different baby in the crib of or, in case his or her spouse is absent, the
another absent spouse could not yet be presumed
dead according to the Civil Code;
3. He contracts a second or subsequent
Article 348. Usurpation of Civil Status marriage;
4. The second or subsequent marriage has all the
Concept: essential requisites for validity.
The crime committed by any person who shall usurp
the civil status of another. It is the act of pretending to  The first marriage must be valid, or at least
be another person so as to enjoy the latter‘s rights, voidable, and still subsisting and the second
filiations, paternity or conjugal rights, including his marriage would have been valid were it not for
profession or public status. It involves the idea of the existence of the first marriage
impersonating another.
 If the first marriage is completely void, there is
 The penalty is higher if the purpose is to no bigamy. If the second marriage is void,
defraud the offended party or his heirs such as there is no bigamy either. But this may give
pretending to be the lost son or nephew of a rise to either adultery or concubinage.
rich man
 Example: (i) ―The Prince and the Pauper‖ (ii) Example: H married first wife. Then he marries
―The Man in the Iron Mask‖. (iii). Pretending to second wife. The first wife died whereupon H
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married third wife. H is guilty of bigamy for the
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second marriage. But he is not guilty of o Those where the essential requirements have
bigamy for the third marriage because the not been complied with such as the
second marriage is void. requirements of age, marriage license, consent
and authority of the solemnizing officer.
 Bigamy may be committed by reckless o These refer to the void, voidable, and
imprudence as: (i). by failure to ascertain the annullable marriages
whereabouts of the first wife (ii) one who
obtains a divorced abroad and thinking it is
valid here, remarries. Article 351. Premature Marriage

 The prescriptive period commences after Persons liable

discovery of the second marriage as the
principle of constructive notice does not apply 1. A widow who is married within 301 days from
to records in the Civil Registry. the date of the death of her husband, or
before having delivered if she is pregnant at
 In case the second marriage is based on the the time of his death;
absence of the first spouse, there must first be
a judicial declaration of presumptive death so 2. A woman who, her marriage having been
that the accused can claim good faith and annulled or dissolved, married before her
avoid prosecution for bigamy. delivery or before the expiration of the period
of 301 days after the date of the legal
 Venue. In the courts of the city, province or separation.
province where the second marriage was
celebrated  The purpose of the prohibition is to prevent
doubtful paternity in the event she gives birth
during the second marriage. Thus there is no
liability in the following instances:
Article 350. Marriage Contrary to the Marriage a). If she already gave birth prior to the
law second marriage
b). There is proof she was not pregnant by the
Elements first husband as when the first husband is
sterile, or infertile or was unable to have
1. Offender contracted marriage; physical access to the wife
2. He knew at the time that – c). The second husband is sterile
a. The requirements of the law were not d). The woman is sterile or infertile
complied with; or
b. The marriage was in disregard of a legal
impediment. Article 352. Performance of Illegal Marriage
Ceremony.
Marriages contracted against the provisions of
laws (from Ortega) This is the crime committed by the solemnizing
officer.
1. The marriage does not constitute bigamy.
2. The marriage is contracted knowing that the
requirements of the law have not been
complied with or in disregard of legal TITLE XIII
impediments. CRIMES AGAINST HONOR
3. One where the consent of the other was
obtained by means of violence, intimidation or Crimes against honor
fraud.
4. If the second marriage is void because the 1. Libel by means of writings or similar means
accused knowingly contracted it without (Art. 355);
complying with legal requirements as the 2. Threatening to publish and offer to prevent
marriage license, although he was previously such publication for a compensation (Art.
married. 356);
5. Marriage solemnized by a minister or priest 3. Prohibited publication of acts referred to in the
who does not have the required authority to course of official proceedings (Art. 357);
solemnize marriages. 4. Slander (Art. 358);
5. Slander by deed (Art. 359);
Notes: 6. Incriminating innocent person (Art. 363);
7. Intriguing against honor (Art. 364).
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Introduction: Introduction:

 A person‘s name, honor and reputation, is as Forms: Libel may be through:

sacred to him as his very life. Title 13 seeks to
give protection thereto by defining certain acts a). The facilities of the mass media i.e print and
injurious to a person‘s name and reputation as broadcast media such as articles, news
crimes and prescribing penalties therefore. items, columns, caricatures, editorials in
newspapers and magazines; comments,
 These crimes, which are in the nature of opinions, news aired over the television or
character assassination, are classified according radio stations
to the manner of their commission into the
following: b). Modern communication facilities such as
a). Libel which is by making use of the mass through the internet or cellphones, CDs,
media and literary forms or literary outlets DVDs
b). Oral Defamation which is by the use of oral
utterances b). Literary outlets such as through letters,
c). Slander by Deed which is by performing an books, poems, songs, stage plays, movies,
act intended to cast dishonor, disrespect or paintings, drawings, pictures, sculpture and
contempt upon a person . the like
d). Incriminatory machinations which may either
be: Elements
(i) Incriminating an innocent person in the
commission of a crime by planting First Element: There must be a defamatory
evidence imputation
(ii) Intriguing against honor by resorting to
any scheme, plot, design, but not by This means that the matter claimed to be libelous
direct spoken words, to destroy the must impute a crime, vice, defect, or any act, or
reputation of another omission, condition, status or circumstance, tending
to cause the dishonor, discredit or contempt to a
 Elements common to all: natural or juridical person, or to blacken the
memory of one who is dead.
a) That there be a matter, oral written or in
whatever form, or of an act, which is The purpose is to lower the esteem or honor, or
defamatory to another respect, in which a person is regarded, such as :

b).That there is publicity of the defamatory a). The victim is humiliated or publicly
matter embarrassed
b). The victim is vilified, hated, becomes the
c). That there be malice on the part of the subject of gossip, nasty stories, suspected of
accused wrongdoings, is avoided
c). The victim losses face, becomes a laughing
d). That the person defamed is identifiable stock, is the object of ridicule

 The foregoing crimes cannot be committed by Rules to determine whether the language is
negligence because all require the element of defamatory or not:
malice.
 Title 13, especially the article on libel constitutes a). What should be considered is what the
another limitation to the freedom of speech and matter conveyed to a fair and reasonable
of the press as these two freedoms can not be man and not the intention of the author or
allowed to be used to destroy the good name of the accused.
an innocent person. b). Statements should not be interpreted by
taking the words one by one out of context;
they must be taken in their entirety.
Article 353. Definition of Libel c). Words are to be given the ordinary meaning
as are commonly understood and accepted
A libel is a public and malicious imputation of a crime, in the in daily life. The technical meanings
or of a vice or defect, real or imaginary, or any act, do not apply. This is especially true to
omission, condition, status, or circumstances tending to idiomatic sayings. Thus ―Babae ng Bayan ―
cause the dishonor, discredit, or contempt of a natural does not mean a heroine. ―Hayok sa Laman‖
or juridical person, or to blacken the memory of one does not mean a meat eater. ―Adu client nya
who is dead. nga pagbigasan‖
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How the imputation is made: b). Expressions of an opinion made by one who
is entitled to state an opinion on a subject in
a). By the use of direct and express defamatory which he is interested. Examples:
words, descriptions or accusations. (i) An heir writes that their was unfairness in
Examples: (i). He is a thief, swindler, the distribution of the properties
―babaero‖, ugly, wife beater, a crook (ii) (ii) A lady complains over the radio that
drawing a caricature of a person depicting there was discrimination against
him as a crocodile Cordillera girls women in the selection of
candidates to the Miss Baguio Pageant
b). By the use of Figures of Speech such as: (iii). A law student writes in the school news
organ that he believes the faculty in the
(i) Hyperbole - exaggeration according to college of law are generally lazy and are
which a person is depicted as being not kept abreast with new jurisprudence
better or worse, or larger or smaller (iv). A teacher declared in an interview that
than is actually the case. Example: (a). the students of one school are less
Mr. X is the gambling lord (b) She is intelligent than those in another school
the mother of all cheaters. (c) Praise
undeserved is slander in disguise c). Words which are merely insulting are not
actionable as libel or slander per se, and
(ii) Irony or sarcasm or where words are mere words of general abuse however
used to convey a meaning contrary to opprobious, ill-natured, or vexatious whether
their literal sense. Examples: (a). ―Maria written r spoken, do not constitute a basis
belongs to the ladies called ―Kalapating for an action for defamation in the absence
mababa ang lipad‖ (b). Don‘t bother of allegation for special damages. The fact
asking him for a treat. He is boxer ( i.e that the language is offensive to the plaintiff
stingy or a miser) (c) He has a face only does not make it actionable by itself ( MVRS
a mother can love (d) She is my wife Pub. Inc. vs Islamic Da‘wah Council of the
when she is beside me, yours when she Phil. 444 Phil. 20; Binay vs. Sec. of Justice
is near you. (e). She is very famous Sept. 8, 2006)
because she is a public sweetheart.
Second Element: Publicity of the Libelous Matter
(iii) Metaphor or the use of words or
phrases denoting one kind of idea in This means the accused caused the libelous
place of another word or phrase for the material to be known or read or seen or heard by a
purpose of suggesting a likeness third person, other than the person to whom it has
between the two. Examples: (a) He is been written i.e. the victim. Somebody must have
Satan personified on earth. (b) She has read, seen or heard the libelous material due to the
an angelic face but covered with a skin acts of the accused.
as thick as the hide of a carabao
o The addressing of defamatory words directly
c) Or words or phrases with double meanings to the person concerned, and to no other
such as those which apparently are innocent person, does not constitute an actionable
but are deliberately chosen because in libel.
reality they convey a different and a o If it was the victim himself and not the
derogatory meaning. Example: ―He will accused, who showed, informed or relayed
make a good husband. He is a mama‘s boy‖. the libelous material to others, then the
accused is not liable
Where the alleged libelous matter is o Circulation or publicity is not necessarily
susceptible of two or more interpretations, through the newspaper.
one libelous and the other not libelous, the o Examples:
courts are justified in holding that the real i). Posting the material in the internet or
purpose of the writer was to have the public posting in a bulletin board
understand what he wrote in the light of the ii). Showing the caricature, or naked picture,
worst possible meaning of the victim to another
iii) Announcements in the radio, or paid
What are not defamatory advertisements such as ―The public is
warned not to purchase the skin lotion
a). Words commonly used as expletives, products of ABC Corp. to prevent
denoting anger or disgust rather than as possible cancer‖
defamation, such as the expressions ―Putang iv). Asking someone to write a defamatory
inaka, tarandado ka‖, ―Ulol‖, ―Punyeta ka‖. letter about the victim
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iv). Sending the letter to the victim through many charges of liable as there are persons
a messenger but it is in an unsealed libeled
envelope ( the presumption is that the
letter is intended to be read by anyone b). If the article is directed to a class or group of
other than the victim). Thus if the letter several persons in general terms only
is sent in a sealed envelope, the without specifying any particular member,
element of publicity is missing. there is no victim identified or identifiable,
hence there is no actionable libel. No person
Effect: Each separate publication of a libelous can claim to have been specifically libeled as
matter is a separate crime, whether published in to give that person the right to file charges
part, or in the same newspaper. Example: (i) There of libel.
as many crimes of libel as there are various
showing or staging of a libelous drama or stage Examples:
play in different venues and at various times. (i). Some lady students in the 4th year law
(ii) If the same libelous news is published in two or class section A, are ugly
more newspapers, then there be such number of (ii). Two thirds of the law students are
separate libels corresponding to the different cheaters
newspapers which published the material. (iii). Majority of the policemen are crooks
(iv). Most lawyers are thieves disguised in
Third Element: The Person libeled must be identified. coat and tie
(Identity of victim)
c). If the defamation is directed against a group
This means the complainant or plaintiff must prove or class and the statement is so sweeping or
he is the person subject of the libelous matter, that all-embracing as to apply to every member
it his reputation which was targeted. of that group or class, then any member can
file an action for libel in his own name, not
This element is established by the testimony of in the name of the group/class. (Note:
witnesses if the complainant was not directly Philippine laws do not recognize group libel).
mentioned by name. They must be the public or Or if the statement is sufficiently specific so
third persons who can identify the complainant as that each individual can prove that the
the person subject of the libel. If third persons can statement specifically point to him then he
not say it is the plaintiff or complainant who is the may bring an action in his own name.
subject, then it cannot be said that plaintiff‘s name
has been tarnished. Examples:
(i). All those belonging to 4th year law class
o Where the publication is ambiguous as to section A are sex perverts
the person to whom it applies, the (ii) Each and every employee in the
testimony of persons who read the accounting office is secretly taking home
publication is admissible for the purpose of part of the tuition fees paid.
showing who is intended to be designated (iii) If you are a faculty member of the
by the words in said publication college of law of U.B. then you have no
integrity but you are a yes-man of the
How the identification or referral to the plaintiff is school President
made
a). Directly by his name d). But even if directed against a group or class
b). By descriptions of his person, his address, but the statement is directly and personally
nature of his office or work, his actions, or addressed to a member or members
any other data personally connected or thereof, then only such member(s) can bring
related to the plaintiff; or identification from an action.
similar other the circumstances
c) From the likeness of his face or features to Example: A radio announcer addresses
the libelous drawing, caricature, painting or himself to Mr. X and Mr. Y and says: ― Mr. X,
sculpture and you Mr. Y. You Pangalatoks are sex
maniacs‖. Only Mr. X and Mr. Y can file an
The victims maybe natural persons who are alive or action for libel.
juridical persons, or deceased persons as to their
memory. Fourth Element: That there be malice on the part of
the accused.
Rule if several persons were defamed or libeled
Malice is the legal term to denote that the accused
a). If several persons were libeled in one article, is motivated by personal ill-will, spite, hatred,
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but all are identifiable, then there are as jealousy, anger, and speaks not in response to duty
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but to do ulterior and unjustifiable harm. The
purpose is really to destroy, to injure, to inflict Venue: as a general rule the action for libel shall be
harm. in the RTC of the province/city where the article
was first printed and published ( Rule of Place of
There are two kinds of malice First Print and Publication) but it may also be
filed elsewhere as follows:
a). Malice in Law or Presumed Malice. a). If a private person: in the RTC of the
province/city where he resides
The plaintiff need not prove the existence of b). If a public official and holding office in
malice. It is for the accused to disprove this Manila: In the RTC of Manila
presumption c) If a public official holding office outside
Manila: in the RTC of the province/city
This presumption, that accused was where he holds office
actuated with an evil purpose or malice,
arises if the article is defamatory on its face, Persons Liable for Libel
or due to the grossness of the defamatory
imputation even if the facts are true, but 1. In case of written libel:
there was no good intention or justifiable a). The Authors of the written defamatory
motive. article, the artists, sculptor, or painter
b). Any person who shall publish, exhibit or
Examples: cause the publication or exhibition thereof (
i.e. those persons other than the author,
(a). X writes an article about the sexual who make known the libelous matter to a
escapades of a society matron complete third person)
with the details of time, place, and c). the editor or business manager of the print
supported by pictures. In such case the media where the article was published
law presumes that X was actuated by
malice even if what he wrote is true. 2. In case of non-written libel
(b). X calls the radio and announces that a). the speaker, announcer or utterer of the
the family of Juan de la Cruz is a family defamatory statements aired over the
of thieves and crooks. broadcast media; the host of the show
where the libelous statement is made
b). Malice in Fact or Malice as a Fact. -. It is b). the producers and makers of the libelous
the malice which must be proven by the cinematographic film, stage show, play or
plaintiff. He must prove the purpose of the drama
accused is to malign or harm or injure his
reputation. This arises either because: 3. Other persons under the principle of ―Libel by
(i) the article is not defamatory on its face Republication” i.e. a person is liable, though he is
or if libelous it is ambiguous not the author of has nothing to do with the
(ii) the accused was able to overcome the libelous matter, if he knowingly republishes or
presumption of malice. circulates the said libelous matter.

Prosecution for Libel Defenses Allowed in Libel

Remedies of the Victim: (i) the person libeled may file Concept:
a criminal case or a separate civil case for damages (ii)
but he may opt to recover damages in the same In general: if the accused proves the absence of
criminal case any of the elements, then he is not liable. Thus he
may show: the material is not defamatory; there is
Jurisdiction of the criminal action no publicity; it is impersonal and does not refer to
the plaintiff; or that there is no malice.
a). Actions based on libel, whether civil or criminal,
are within the exclusive jurisdiction of the There are however specific defenses which may
Regional Trial Court even if the penalty is refer to any of the elements of libel or are
within the Jurisdiction of the Municipal Trial independent defenses in themselves. These
Courts. defenses were established by jurisprudence,
b).The civil case must also be tried in the RTC particularly by United States Decisions, as our Libel
trying the criminal case (No separate civil law is based primarily on American concepts.
action)
c) If the libel imputes any of the private crimes, I. The Doctrine of Privilege Communication
the Prosecution must be upon a complaint filed
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This is a defense against the element of malice and
it applies to both libel and oral defamation. This o The communication must meet these
means that even if the material is considered elements:
libelous still there is no malice in the eyes of the (i). The person who made the
law. These consist of two kinds: (a) Absolutely communication had a legal, moral
Privilege Communication and the (b) Qualifiedly or social duty to make the
Privileged Communication. communication, or at least, had an
interest to protect, which interest
1. Absolutely Privileged Communication: may either be his own or of the one
to whom it is made
This refers to a communication, whether oral or (ii). The communication is addressed to
written which is defamatory and may even be an officer or a board, or superior,
made in bad faith but which cannot give rise to having some interest or duty in the
either criminal or civil liability. This is because matter, and who has the power to
there are higher considerations involved which furnish the protection sought ( or
are considered more paramount than the that the recipient is a proper person
damage to the reputation of a person. who can act on the
communication) and
o Privilege Speeches in the halls of Congress (iii). The statements in the
o Communications made by public officers in communication are made in good
the performance of their duties, such as the faith and without malice ( Binay vs.
explanations on a matter made by a public Sec. of Justice, Sept. 08, 2006)
officer to his superior though it contains
harsh language o Legal duty: presupposes a provision of
o Statements made in judicial proceedings if law imposing upon the accused the duty
pertinent and relevant to the case involved, to communicate. Such as the complaint
such as the allegations in the pleadings by a citizen concerning the misconduct
o Statements and evidence submitted in a of a public official to the latter‗s superior
Preliminary Investigation. even if, upon investigation, the matters
are not substantiated. But it may be
2. Qualifiedly/Conditionally Privileged shown that the charges were maliciously
Communication: made without reasonable ground for
believing them to be true.
This refers to communications in which the law
presumes the absence of malice, thus they are Also, a report to the police by a citizen
initially not actionable. The burden therefore is about the suspected criminal activities
on the plaintiff to prove the existence of actual of another person, even if latter it is
malice. proved the suspicions were groundless,
is privileged.
Two Kinds of Qualifiedly Privileged
Communications Under Article 354. o Moral or social duty presupposes the
existence of a relationship between the
a. Private Communications, made by one to sender and the recipient of the
another in the performance of a legal, moral communication, or the confidential and
or social duty provided that: (i). The one pressing urgency of the communication.
making the communication must have an
interest in the subject and (ii) the person to o The sender must have an interest in the
whom the communication was made is one subject of the communication and the
who can act on the matter recipient must be a proper person who
can act on the subject to the
o This communication maybe oral or communication.
written, private, public or official
document which are sent for redress of Thus a letter-complaint describing an
grievances or to request for appropriate SLU law professor as lazy incompetent,
action. But it must be private in that it and an absentee, is privileged if sent to
is intended to be only between the the SLU President. It is not privileged if
sender and the recipient. Undue sent to the President of U.B.
publicity removes the privilege.
If a teacher writes to his fellow teacher
Hence a so called ―Open Letter‖ is not that a student of his is becoming
privileged. Also, accusations made in a irresponsible and possibly a drug user,
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public gathering are not privileged. the same letter is not privileged. But if
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sent to the parents of the student for argument between two councilors
their information and action, it is during the session of the city council.
conditionally privileged.
 This defense apply most often to
o In Alcantara vs. Ponce ( Feb. 28, 2007) members of the media who write on
the court adopted the ruling in the U.S said matters or report them as news
case of Borg vs. Borg in that a ‖written
charge or information filed with the b-2. Fair and True Report of the Official Acts of
prosecutor or the court is not libelous a Public Official
although proved or be false and
unfounded. Furthermore, the  The public and official acts of a public
information given to a prosecutor by a official, including his policies, are
private person for the purpose of legitimate subjects of comments and
initiating a prosecution is protected by criticisms, though they may be unfair.
the same cloak of immunity and cannot Public officials are not supposed to be
be used as a basis for an action for onion-skinned. ―Public officials, like
defamation. ― Ceasar‘s wife, must be beyond reproach
and above suspicion‖.
In this Alcantara case, a newsletter
submitted by party in a preliminary  But the communication may be
investigation, which was defamatory, actionable:
was considered as a privilege (i) If it contains an imputation which
communication. is a false allegation of a fact or a
comment based on a false
It was also ruled that under the Test of supposition
Relevancy, a matter alleged in the
course of the proceedings need not be (ii). If the attack, criticism or
in every case material to the issues or imputation pertains to his private
be so pertinent to the controversy that it acts or private life, unless these
may become the subject of inquiry in reflect on his public character and
the course of trial, so long as they are image as a public official.
relevant.
(iii) As stated in the U.S. case of New
b.-1: A fair and true report of any official York Times vs. Sullivan, a public
proceeding, or of any statement, report, or official may recover damages if he
speech, made thereat proves that : ―the statement was
made with actual damage, that is,
 The proceeding must not be with knowledge that it was false
confidential, such as the hearings before or with reckless disregard of
the Senate, as opposed to the close whether it was false or not‖
door executive sessions of the senate .
Thus if the report is with respect to a Matters Considered Privileged By Jurisprudence
public record, it refers only to those
made accessible to the public which 1. Fair Comments on Matters of Public
may be revealed for public interest or Interest
protection of the public.
In Borjal vs. Ct. of Appeals, (301 SCRA 1, Jan. 14,
 The report must be without any 1999) it was held that the enumeration in Article
unnecessary comment or libelous 354 is not an exclusive list of qualifiedly privileged
remarks ( i.e. no editorializing) communications because ―fair comments on
matters of public interest are privileged and
 The report must be accurate and should constitute a valid defense in an action for libel or
not intentionally distort the facts. If slander‖
there is error in the facts reported, the
report is still privilege if made in good They refer to events, developments, or matters in
faith which the public as a whole has a legitimate
interest.
 Examples: News report of a judicial
proceeding, including the filing of a Examples
complaint in court; or what a witness
testified; or of a verbal and heated (i). A news report on the welfare of youth and
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students in a school allegedly staffed by
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incompetents, or a dumping ground of misfit
teachers, concerns a matter of public  It is not enough that what was publicized
interest. about another is true. The accused must also
prove good motives or intentions and
(ii). An editorial criticizing the owner of a ship justifiable ends, in order to disprove malice.
which sunk, for his delay in extending  This defense is available only if: (a) What is
financial help to the family of the victims, is imputed to another is a crime regardless if the
not libelous as the in action is a matter of victim is a private or public person or (ii) if the
public interest. victim is a public officer regardless of whether
a crime is imputed, so long as it relates to the
(iii). The arrest and prosecution of law violator is discharge of their official duties
a matter in which the public has a right to  Illustrations: one writes about the criminal
know. Thus there is no liability for reporting activities of another in order to show that
that a lady was arrested for selling shabu or crime does not pay, or to set an example of
that a person was charged in court or what conduct to avoid.
convicted by a court for Estafa. The persons
in question cannot file a case for libel. 5. The Principle of Neutral Reportage.

(iv). A radio announcer lambasts a family for  This is a defense available to one charged not
their adamant refusal to vacate and remove as the author but as a republisher of a
their structure inside a park. libelous material

2. Comments and Criticisms on the  The republisher who accurately and

Actuations of Public Figures disinterestedly reports certain defamatory
statements made against public figures, is
 Public figures refer to people who place shielded from liability, regardless of his
themselves in the public limelight or attention subjective awareness of the truth or falsity of
either: by nature of their business or activity, the accusation. ( See Fil Broadcasting Net
or mode of living, or by adopting a mode of Work vs. AGO Medical and Educational Center,
profession or calling which gives the public a 448 SCRA 413)
legitimate interest in his doings, his affairs and
in his character or which affect public interest Example: A parent of a student goes on radio
(these are the celebrities), or because they to denounce a school teacher as being
participate in public affairs or regularly and incompetent, absentee, bias and prejudiced. A
publicly expound their views on public affairs. news reporter quoted the accusations in his
news article. He is not liable even if he
Examples of the first: movie stars; national personally knows the accusations are untrue.
athletes; those representing the Philippines in
world beauty pageants, Manny Pacquiao; hosts
of TV shows/programs such as the Tulfo Article 355. Libel by Means of Writings or
brothers, musicians, novelists. The spouse of Similar Means
the President is a public figure.
A libel may be committed by means of –
Examples of the second: candidates for an
elective position; columnists of national 1. Writing;
newspapers, TV/radio commentators, Cardinal 2. Printing;
Sin during his time, Jose Maria Sison. 3. Lithography;
4. Engraving;
 As with public officials, the imputation maybe 5. Radio;
actionable if it is (i) a false allegation of fact 6. Photograph;
or (ii) it is based on a false supposition. 7. Painting;
8. Theatrical exhibition;
3. Justified Libel or the Privilege of a Reply. 9. Cinematographic exhibition; or
10. Any similar means.
This is fighting libel with libel. This refer to
communications made in response to a libel in
order to counter and/or remove the libel, Article 356. Threatening to Publish and Offer to
provided it is limited to and related to the Prevent Such Publication for A Compensation
defamatory imputation and not unnecessarily (Libel As A Threat (Blackmailing))
libelous.
Concept:
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4. Truth And Good Motives or Justifiable Ends.
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The law punishes a person who demands a
compensation or money consideration by (Acts  Factors to consider:
punished) : 1. The expression used including their sense,
grammatical significance and accepted
1. Threatening another to publish a libel ordinary meaning
concerning him, or his parents, spouse, child, 2. The personal relations of the accused and the
or other members of his family; offended party, as when both are bitter
enemies
2. Offering to prevent the publication of such libel 3. The special circumstances of the case and its
antecedents, such as the time, place and
Principles: occasion of the utterances, persons present
4. The social standing and position of the
1. This a form of blackmailing because there is an offended party
extortion for money under threat of so called
―exposing‖ a person. This is often called  Words uttered in the heat of anger or in a
demand for ―Hush Money‖ quarrel, with some provocation on the part of
the victim, is simple slander.
2. If both modes were committed by a single
person, there is only one offense. If committed Example: The refusal of the Mayor, without
by two different persons there be two separate valid justification to approve the monetization
offenses, unless both are in conspiracy. of accrued leaves of the accused led the latter
to utter scathing words against the Mayor,
3. The crime is consummated once the threats or which utterances were considered slight as the
offers were made. said refusal was deemed sufficient provocation
(Villanueva vs. People, April 10, 2006)
Examples:
1. The accused threatened to publish in a weekly Other Considerations:
periodical certain letters written by a married
woman unless she paid a certain sum of money.  The victim may not have heard the words, it is
2. The producer of a TV Program demanded money enough that a third person heard them.
from a politician otherwise he would expose the  Words uttered in one occasion and place and
sexcapades of the politician. directed at several persons not mentioned
individually constitute only one offense.
 Words used as expletives (i.e.to express anger,
Article 357. Prohibited Publication of Acts displeasure, are not defamatory)
Referred to in the Course of Official Proceedings
Example: the words ―Puta, Putang Ina Mo‖ are
Elements common enough expressions in the dialect that are
often employed, not really to slander but rather to
1. Offender is a reporter, editor or manager of a express anger or displeasure. It is seldom, if ever,
newspaper, daily or magazine; taken in its literal sense by the hearer, that is, as a
2. He publishes facts connected with the private reflection on the virtues of the mother ―(PP. vs.
life of another; Reyes quoted in Villanueva vs. PP)
3. Such facts are offensive to the honor, virtue
and reputation of said person.
Article 359. Slander by Deed
The provisions of Article 357 constitute the so-
called "Gag Law." Concept:

The performance of any act which shall cast dishonor,

Article 358. Slander (Oral Defamation) discredit or contempt upon another person. Depending
upon the seriousness of the act, the time, place,
Concept: occasion, the character of the victim, it is either Grave
or Light.
It is understood as the speaking of base and
defamatory words which tend to prejudice another in Elements
his reputation, office, trade, business or means of
livelihood 1. Offender performs any act not included in any
other crime against honor;
Kinds: 2. Such act is performed in the presence of other
(1) Grave when it is of a serious and insulting kind or person or persons;
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(2) Simple
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3. Such act casts dishonor, discredit or contempt or other proceeding for having been filed maliciously
upon the offended party. and without probable cause.

Two kinds of slander by deed Note:: Such a complaint states a cause of action if it
alleges:
1. Simple slander by deed; and 1). That the defendant was himself the prosecutor
2. Grave slander by deed, that is, which is of a or at least instigated the prosecution
serious nature. 2). That the prosecution finally terminated in the
acquittal of the plaintiff
Notes: 3). That in bringing the action the defendant acted
without probable cause and
 If it is not proven that the purpose of the act is 4). That the defendant was actuated by malice i.e.
to humiliate or embarrass the act may either sinister or improper motives
be maltreatment or unjust vexation.
 Poking a dirty finger ordinarily connotes the
phrase ―Fuck you‖ which is similar to the TITLE XIV.
expression ―Puta‖ or ―Putang Ina Mo‖ and, QUASI OFENSES
when there is provocation from the victim, is CRIMINAL NEGLIGENCE
simple slander by deed (Viilanueva vs. Pp) Introduction:

Negligence may either be criminal or not. Non criminal

Incriminatory Machinations negligence may either be contractual or quasi-delictual.
Criminal Negligence is the third among the three
I. Incriminating An Innocent Person Under classes of crimes, the two others being intentional or
Article. 363. malicious crimes and the other being crimes mala
prohibita.
Elements
Negligence is deficiency of perception or lack of
1. Offender performs an act; foresight: the failure to foresee impending injury,
2. By such an act, he incriminates or imputes to thoughtlessness, failure to use ordinary care. Whereas,
an innocent person the commission of a crime; imprudence is deficiency of action in avoiding an
3. Such act does not constitute perjury. injury due to lack of skill. Both result to a culpable
felony.
Notes:
Reckless: If the danger to another is visible and
 This refers to acts not constituting perjury but consciously appreciated by the accused. It is simple if
directly tending to cause the false prosecution the injury is not immediate or openly visible.
of another and is limited to ―planting evidence‖
 The evidence should not however consist of Principles:
drug or drug paraphernalia else the act is 1. The degree of diligence required by law varies
specifically known as Planting Evidence with the nature of the situation in which a
punished by the Dangerous Drugs Law person is placed.

II. Intriguing Against Honor Under Art. 364. 2. Negligence maybe presumed if at the time the
accident occurred, the accused was violating a
This refers to any scheme or plot designed to regulation the purpose of which was to prevent
blemish the reputation of a person by means of the accident.
which consists of some trickery. The accused does
not avail directly of spoken or written words, 3. There is no conspiracy in culpable felonies.
pictures or caricatures, but of some ingenious,
crafty or secret plot. 4. As to the penalties:

Example: circulating gossips, stories or rumors  The penalty as provided under article 356
highly offensive to a lady, that she is ―a saint by depends on whether the
day but not at night‖. negligence/imprudence is reckless or simple
and it generally applies to all situations of
(Action for) Malicious Prosecution culpable felonies, unless there is a specific
penalty provided in certain crimes. Example:
Concept: culpable malversation, evasion through
negligence.
It is not a crime but a civil case for damages brought  The principle of complex crimes apply if
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after the dismissal of a criminal prosecution, civil suit, several grave or less graves crimes result
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1. The accused commits the act of
Defenses Allowed: sexual intercourse or lascivious
conduct
1. If both the victim and the accused were 2. The said act is performed with a child
negligent, the accused may be held liable exploited in prostitution or subjected
under the Doctrine of Last Clear Chance i.e it to other sexual abuse
was he who had the sufficient opportunity to 3. The child, whether male or female, is
avoid the accident after noticing the danger below 18 years of age

2. Emergency Rule: due to the negligence of B. Meaning of Lascivious Conduct per section 32
another, the accused was placed in an Article XIII of the Implementing Rules and
emergency and compelled to act immediately Regulations:
to avoid an impending danger, and in so doing ―The intentional touching, either directly or
he injured another, even if his choice of action through clothing, of the genitalia, anus, groin,
was not the wisest under circumstances. This breast inner thigh, or buttocks, or the
is similar to the exempting circumstance of introduction of any object into the genitalia,
accident. anus, or mouth, or any person, whether of the
same or opposite sex, with intent to abuse,
3. The defense of contributory negligent does not humiliate, harass, degrade, or arouse or
apply in criminal cases committed through gratify the sexual desire of any person,
reckless imprudence, since one cannot allege bestiality, masturbation, lascivious exhibition of
the negligence of another to evade the effects the genitals or pubic area of a person‖
of his own negligence ( Manzanares s. PP, 504
SCRA 354) C. Is failure to allege the age of victim fatal and
violative of the right of accused to be
4. Contributory negligence on the part of the victim informed?
merely mitigates the civil liability of the
accused. ―…while it is necessary to allege the essential
elements of the crime in the information, the
NOTE: If, in a vehicular accident, the accused failure not do so is not an irremediable vice.
abandons the victims, this act will result to the When the complaint or resolution by the pubic
imposition of a penalty one degree higher. Except in prosecutor which contains the missing
the following instances: averments is attached to the information and
a). if he leaves because he is in imminent danger of form part of the records, the defect in the
being harmed latter is effectively cured, and the accused
b). he leaves to report to the police cannot successfully invoke the defense that his
c). or to summon a physician, nurse or doctor. right to be informed is violated‖
D. In addition to moral damages, a fine is
DIVERSION UNDER R.A. 9344 awarded for each count of lascivious conduct
THE JUVENILE JUSTICE AND WELFARE ACT
OF 2006 E. Distinction between Acts of Lasciviousness
under the RPC from that under Section 5, Art.
1. CONCEPT: Refers To an alternative, child- III of R.A 7610 per the dissenting opinion of
appropriate process of determining the Justice Carpio
responsibility and treatment of a child with the law
on the basis of his social, cultural, economic, Section 5 of RA 7610 deals with a situation
psychological or educational background without where the acts of lasciviousness are
resorting to formal court proceedings. committed on a child either exploited in
prostitution or subjected to OTHER SEXUAL
A. The CICL is placed under diversion programs ABUSE. The acts of lasciviousness committed
which may consist of any of the following: on the child are separate and distinct from the
other circumstance-that the child is either
1. Restitution, reparation or indemnification exploited in prostitution or subjected to other
sexual abuse.
R.A.7610: Special Protection of Children Against
Child Abuse, Exploitation and Discrimination Act. The phrase ―other sexual abuse‖ refers to any
sexual abuse other than the acts of
1.Isidro Olivarez vs. Court of Appeals ( July 29,2005) lasciviousness complained of and other than
exploitation in prostitution. Such ―other sexual
A. The Elements of Sexual Abuse Under Section abuse‖ could fall under acts encompassing
5, Article III obscene publication and indecent shows
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mentioned in section 3(d) (3) of RA 7610.
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Thus a child performing in indecent shows in a
cabaret is a child subjected to ―other sexual
abuse‖. A customer in such cabaret who
commits acts of lasciviousness on the child is
liable for violation of Section 5…

… the element of profit or coercion refers to

the practice of prostitution, not to the sexual
intercourse or lascivious conduct committed by
the accused.

The information must allege that the child is

exploited in prostitution or other sexual abuse

CRIMES COMMITTED BY PUBLIC OFFICERS

1. Meaning of the phrase‖ committed in relation to

office‖
A). Montilla vs. Hilario (90 Phil. 49): the
relationship between the crime and the office
must be direct and not accidental, such that
the offense cannot exist without the office
B). PP vs. Montejo ( 108 Phil. 613): although
public office is not an element of the offense
charged, as long as the offense charged is
intimately connected with the office of the
offender and perpetrated while he was in the
performance, though improper or irregular, of
his official functions, the accused is held
indicted for an offense committed in relation
to his office

LAWS RELATED TO CRIMES BY PUBLIC OFFICERS

1. R.A. 7080: AN ACT DEFINING AND PENALZING THE

CRIME OF PLUNDER

1. Plunder:
-o0o-
GOD BLESS

-o0o-
GOOD LUCK

Prepared by:

ELMER MANUEL SAGSAGO

CITY PROSECUTOR II
PROFESSOR: SCHOOL OF LAW
SAINT LOUIS UNIVERSITY
UNIVERSITY OF BAGUIO
X------------------------------------------------X
-o0o-

Elmer Manuel Sagsago

Professor: Criminal Law Review
SLU-UB

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