1

TITLE ONE

CRIMES AGAINST NATIONAL SECURITY

Crimes against national security

Treason (Art. 114);

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

Misprision of treason (Art. 116); and

Espionage (Art. 117).

Crimes against the law of nations

Inciting to war or giving motives for reprisals (Art. 118);

Violation of neutrality (Art. 119);

Corresponding with hostile country (Art. 120);

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

Piracy in general and mutiny on the high seas (Art. 122).

The crimes under this title can be prosecuted even if the criminal act or acts were committed
outside the Philippine territorial jurisdiction. However, prosecution can proceed only if the offender
is within Philippine territory or brought to the Philippines pursuant to an extradition treaty. This is
one of the instances where the Revised Penal Code may be given extra-territorial application
under Article 2 (5) thereof. In the case of crimes against the law of nations, the offender can be
prosecuted whenever he may be found because the crimes are regarded as committed against
humanity in general.

Article 114

TREASON

ELEMENTS:

That the offender owes allegiance to the Government of the Philippines

That there is a war in which the Philippines is involved

That the offender either

Levies war against the government,

breech of allegiance

actual assembling of men

for the purpose of executing a treasonable design

Adheres to the enemies, giving them aid and comfort

breech of allegiance

adherence

giving aid or comfort to the enemy

2

Requirements of levying war

Actual assembling of men;

To execute a treasonable design by force;

Intent is to deliver the country in whole or in part to the enemy; and

Collaboration with foreign enemy or some foreign sovereign

Success is not important. What matters is the actual assembly of men and
the execution of treasonable design by force.

Ways of proving treason:

a. 2 witnesses testifying to same overt act

The testimonies must refer to the same act, place and moment of time.
Treason cannot be proved by circumstantial evidence or by extrajudicial
confession.

Example: X saw arms landed in La Union and loaded into a motor vehicle. At this stage,
not sufficient to convict yet. Y later saw the arms unloaded in a warehouse. Will X + Y be
sufficient witnesses to convict? Answer: NO. Because the law requires that 2 witnesses
see the SAME OVERT ACT.

b. Confession of the accused in open court.

Arraignment, pre-trial, trial OK.

If he has pleaded NOT guilty already during arraignment, he can still confess in open
court by stating the particular acts constituting treason.
During trial, simply saying Im guilty is not enough.

Withdrawing plea of not guilty during arraignment not necessary

If during arraignment he pleads guilty, court will ask if the accused understands is plea.
Submission of affidavit during trial, even if assisted by counsel is not enough.

Treason: breach of allegiance to the government, committed by a person who owes

allegiance to it. Allegiance: obligation of fidelity and obedience. It is permanent or
temporary depending on whether the person is a citizen or an alien.

Evident premeditation, superior strength and treachery are circumstances inherent in

treason, and are, therefore, not aggravating.

Treason cannot be committed in times of peace, only in times of war actual hostilities.
But no need for declaration of war

Not Treasonous:

Acceptance of public office and discharge of official duties under the enemy does not
constitute per se the felony of treason (exception: when it is policy determining)
3

Serving in a puppet government (ministerial functions) and in order to serve the

populace is NOT treasonous. But it is treason if: a) there is discretion involved; b) inflicts
harm on Filipinos; c) it is disadvantageous to them.

Purpose of offender: to deliver the Philippines to enemy country; if merely to change

officials not treason

On Citizenship

Filipino citizens can commit treason outside the Philippines. But that of an alien must be
committed in the Philippines.

Only Filipino citizens or permanent resident aliens can be held liable

Alien: with permanent resident status from the BID it is neither the length of stay in the
Philippines nor the marriage with a Filipino that matters.

Actual hostilities may determine the date of the commencement of war

No such thing as attempted treason; mere attempt consummates the crime

Giving aid or comfort material element, enhances forces of the enemy country.

Acts which strengthen or tend to strengthen the enemy in the conduct of war against the
traitors country or that which weaken and tend to weaken the power of the same.

Example: Financing arms procurement of enemy country. But giving of shelter is not
necessarily giving aid and comfort.

Adherence and giving aid or comfort must concur together.

Adherence: when a citizen intellectually or emotionally favors the enemy and harbors
convictions disloyal to his countrys policy. But membership in the police force during the
occupation is NOT treason.
Example: Giving information to, or commandeering foodstuffs for the enemy.

Adherence may be proved by: (1) one witness; (2) from the nature of the act itself;

(3) from the circumstances surrounding the act.

When this adherence or sympathies are converted into aid and comfort, only
then they take material forM. This material form is now what is made
punishable. It is usually manifested by the offender in giving information,
commandeering foodstuffs, serving as spy and supplying the enemy with war
materials.

Treason is a CONTINUING CRIME. Even after the war, offender can be prosecuted.

Treason is a continuing offense. It can be committed by a single act or by a

series of acts. It can be committed in one single time or at different times and
only one criminal intent. In construing the provisions relating to the
commission of several acts, the same must be done in pursuance or
furtherance of the act of treason.

No matter how many acts of treason are committed by the offender, he will
be liable for only one crime of treason.
4

If you convict a person for treason by reason of irresistible force or uncontrollable fear,
you may use Art.12. No treason through negligence

In the imposition of the penalty for the crime of treason, the court may
disregard the presence of mitigating and aggravating circumstances. It may
consider only the number, nature and gravity of the acts established during
the trial. The imposition of the penalty rests largely on the exercise of judicial
discretion.

Defenses that may be availed of by the accused.

Duress or uncontrollable fear of immediate death; and

Lawful obedience to a de facto government.

When killings and other common crimes are charged as overt act of treason, they cannot
be regarded as (1) separate crimes or (2) as complex with treason.

In the act of levying war or giving aid or comfort to the enemy, murder,
robbery, arson or falsification may be committed by the offender. BUT the
offender does not commit the crime of treason complexed with common
crimes because such crimes are inherent to treason, being an indispensable
element of the same.

Treason distinguished from Rebellion.

The manner in which both crimes are committed in the same. In treason
however, the purpose of the offender is to deliver the government to the
enemy country or to a foreign power. In rebellion, the purpose of the rebels
is to substitute the government with their own form of government. No
foreign power is involved.
Treason distinguished from Sedition.

In treason, the offender repudiates his allegiance to the government by

means of force or intimidation. He does not recognize the supreme authority
of the State. He violates his allegiance by fighting the forces of the duly
constituted authorities.

In sedition, the offender disagrees with certain policies of the State and
seeks to disturb public peace by raising a commotion or public uprising.

Article 115

CONSPIRACY TO COMMIT TREASON

ELEMENTS:

In time of war

2 or more persons come to an agreement to

levy war against the government, or

adhere to the enemies and to give them aid or comfort,

5

They decide to commit it

ELEMENTS OF PROPOSAL TO COMMIT TREASON

In time of war

A person who has decided to levy war against the government, or to adhere to the enemies and
to give them aid or comfort, proposes its execution to some other person/s.

Mere agreement and decisions to commit treason is punishable

Mere proposal even without acceptance is punishable too. If the other accepts, it is
already conspiracy.

While Treason as a crime should be established by the two-witness rule, the

same is not observed when the crime committed conspiracy to commit
treason or when it is only a proposal to commit treason.

Article 116

MISPRISION OF TREASON

ELEMENTS:

That the offender must be owing allegiance to the government, and not a foreigner

That he has knowledge of any conspiracy (to commit treason) against the government
That he conceals or does not disclose and make known the same as soon as possible to the
governor or fiscal of the province or the mayor or fiscal of the city in which he

resides

While in treason, even aliens can commit said crime because of the amendment to the article, no
such amendment was made in misprision of treason. Misprision of treason is a crime that may be
committed only by citizens of the Philippines.

Offender is punished as an accessory to the crime of treason

Take note that the offender is a principal to the crime of misprision of treason,
yet he is penalized only as an accessory. In the imposition of the penalty, the
court is not bound by the provisions of Article 63 and 64, referring to
indivisible penalties. In the presence of mitigating and aggravating
circumstances, the offender is punished two degrees lower than the penalty
for the crime of treason.

The criminal liability arises if the treasonous activity was still at the conspiratorial stage

This crime does not apply if the crime of treason is already committed

Crime of omission

This is a felony by omission although committed with dolo, not with culpa .

To report within a reasonable time depends on time, place and circumstance the
RPC did not fix time.
6

RPC states 4 individuals, what if you report to some other high-ranking government
official? Ex. PNP Director? Judge Pimentel says any govt official of the DILG is OK.

Whether the conspirators are parents or children, and the ones who learn the conspiracy is a
parent or child, they are required to report the same. The reason is that although blood is thicker
than water so to speak, when it comes to security of the state, blood relationship is always
subservient to national security. Article 20 does not apply here because the persons found liable
for this crime are not considered accessories; they are treated as principals.

Article 117

Espionage by entering, without authority therefor, warship, fort, or naval or

military establishments or reservation to obtain any information, plans,
photographs or other data of a confidential nature relative to the defense of
the Philippines.

ELEMENTS:

1. That the offender enters any of the places mentioned therein 2. That he has no authority
therefore;

That his purpose is to obtain information, plans, photographs or other data of a confidential
nature relative to the defense of the Philippines

Under the first mode of committing espionage, the offender must have the
intention to obtain information relative to the defense of the PHIL. It is
sufficient that he entered the prohibited premises. Here, the offender is any
private individual, whether an alien or a citizen of the Philippines, or a public
officer.
Espionage by disclosing to the representative of a foreign nation the
contents of the articles, data, or information referred to in paragraph 1 of
Article 117, which he had in his possession by reason of the public office
holds

ELEMENTS:

That the offender is a public officer

That he has in his possession the articles, data or information referred to in par 1 of art 117, by
reason of the public office he holds

That he discloses their contents to a representative of a foreign nation

Purpose: to gather data

Under the second mode, the offender must be a public officer who has in
possession the articles, data or information by reason of the office he holds.
Taking advantage of his official position, he reveals or discloses the
information which are confidential and are relevant to the defense of the
Philippines.
7

Espionage: the offense of gathering, transmitting, or losing information respecting the

national defense with the intent or reason to believe that the information is to be used to
the injury of the Philippines or the advantage of any foreign nation. It is not conditioned
on citizenship.

Not necessary that Philippines is at war with the country to which the information was
revealed. What is important is that the information related is connected with the defense
system of the Philippines.

Wiretapping is NOT espionage if the purpose is not something connected with the
defense

Commonwealth Act No. 616 An Act to Punish Espionage and Other Offenses against
National Security

Acts punished

Unlawfully obtaining or permitting to be obtained information affecting national defense;

Unlawful disclosing of information affecting national defense;

Disloyal acts or words in times of peace;

Disloyal acts or words in times of war;

Conspiracy to violate preceding sections;

Harboring or concealing violators of law. and

Photographing vital military information

CRIMES AGAINST LAWS OF NATIONS

In crimes against the law of nations, the offenders can be prosecuted anywhere in the world
because these crimes are considered as against humanity in general, like piracy and mutiny.
Crimes against national security can be tried only in the Philippines, as there is a need to bring
the offender here before he can be made to suffer the consequences of the law. The acts against
national security may be committed abroad and still be punishable under our law, but it can not
be tried under foreign law.

Article 118

INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS

ELEMENTS:

That the offender performs unlawful or unauthorized acts

That such acts provoke or give occasion for a war involving or liable to involve the Philippines
or expose Filipino citizens to reprisals on their persons or property

Crime is committed in time of peace, intent is immaterial

Inciting to war offender is any person

Reprisals is not limited to military action, it could be economic reprisals, or denial of entry
into their country.
8

Example. X burns Chinese flag. If China bans the entry of Filipinos into China, that is
already reprisal.

Article 119

VIOLATION OF NEUTRALITY

ELEMENTS:

That there is war in which the Philippines is not involved

That there is a regulation issued by competent authority for the purpose of enforcing neutrality

That the offender violates such regulation

Govt must have declared the neutrality of the Phil in a war between 2 other countries

The regulation must be issued by a competent authority like the President of the Philippines or
the Chief of Staff of the Armed Forces of the Philippines, during a war between different
countries in which the Philippines is not taking sides.

It is neutrality of the Phil that is violated

Congress has the right to declare neutrality

The violations can be done either by means of dolo or by means of culpa. So

violation of neutrality can be committed through reckless imprudence.
Article 120

CORRESPONDENCE WITH HOSTILE COUNTRY

ELEMENTS:

That it is in time of war in which the Philippines is involved

That the offender makes correspondence with an enemy country or territory occupied by
enemy troops

That the correspondence is either

prohibited by the government, or

carried on in ciphers or conventional signs, or

containing notice or information which might be useful to the enemy

Circumstances qualifying the offense:

notice or information might be useful to the enemy

offender intended to aid the enemy

Hostile country exist only during hostilities or after the declaration of war
9

Correspondence to enemy country correspondence to officials of enemy country

even if related to you.

It is not correspondence with private individual in enemy country

If ciphers were used, no need for prohibition

If ciphers were not used, there is a need for prohibition

In any case, it must be correspondence with the enemy country

Doesnt matter if correspondence contains innocent matters if prohibited, punishable

Article 121

FLIGHT TO ENEMYS COUNTRY

ELEMENTS

That there is a war in which the Philippines is involved

That the offender (Filipino or resident alien) must be owing allegiance to the government

That the offender attempts to flee or go to enemy country

That going to enemy country is prohibited by competent authority

Mere attempt consummates the crime

There must be a prohibition. If none, even if went to enemy country no violation

Alien resident may be guilty here.

Article 122

PIRACY

2 Ways of Committing Piracy

By attacking or seizing a vessel on the high seas or in the Philippine waters (PD 532)

By seizing the whole or part of the cargo of said vehicles, its equipment or personal
belongings of its complement or passengers

Elements:

That a vessel is on the high seas/Philippine waters

That the offenders are not members of its complement or passengers of the vessel

That the offenders

10

attack or seize that vessel or (hence, if committed by crew or passengers, the crime is not piracy
but robbery in the high seas)

seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its
complement or passengers

High seas: any waters on the sea coast which are without the boundaries of the low
water mark although such waters may be in the jurisdictional limits of a foreign govt

Piracy in high seas jurisdiction is with any court where offenders are found or arrested

Piracy in internal waters jurisdiction is only with Philippine courts

For purpose of Anti-Fencing Law, piracy is part of robbery and theft

Piracy

Mutiny

Robbery or forcible degradation on the

Unlawful resistance to a superior officer, or

high seas, without lawful authority and

the raising of commotion and disturbances

done with animo lucrandi and in the

on board a ship against the authority of its

spirit and intention of universal hostility.

commander

Intent to gain is an element.

No criminal intent
Attack from outside. Offenders are

Attack from the inside.

strangers to the vessel.

under the amended article, piracy can only be committed by a person who is not a passenger nor
member of the complement of the vessel irrespective of venue. So if a passenger or
complement of the vessel commits acts of robbery in the high seas, the crime is robbery, not
piracy.

If in the Phil. waters still piracy

However, despite the amendment, P.D. No. 532 may still apply where the
offender is not stranger to the vessel since it provides: Any attack upon or
seize of any vessel, or the taking away of the whole of part thereof or its
cargo, equipment or the personal belongings of its complement or passengers,
irrespective of the value hereof, by means of violence against or intimidation
of persons or force upon things, committed by any person, including a
passenger or member of the complement of said vessel, in Philippine
waters, shall be considered as piracy. The offenders shall be considered as
pirates and punished as hereinafter provided. After all, under the Revised
Penal Code, for one to be called a pirate, the offender must be a stranger to
the vessel.

While the Article 122 limits the offenders to non-passengers or non-members of the crew, P.D. 532
states that the attack upon or seizure of any vessel, or taking away the whole or part thereof or its
cargo, equipment or personal belongings of its complement or passengers committed by any person
including a passenger or member of the complement of said vessel shall be considered Piracy.

Note, however, that in Section 4 of Presidential Decree No. 532, the act of aiding pirates or
abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who
knowingly and in any manner aids or protects pirates, such as giving them information about the
movement of the police or other peace officers of the government, or acquires or receives property
taken by such pirates, or in any manner derives any benefit therefrom; or who directly or indirectly
abets the commission of piracy. Also, it is expressly provided in the same section that
11

the offender shall be considered as an accomplice of the principal offenders and punished in
accordance with the Revised Penal Code. This provision of Presidential Decree No. 532 with
respect to piracy in Philippine water has not been incorporated in the Revised Penal Code.
Neither may it be considered repealed by Republic Act No. 7659 since there is nothing in the
amendatory law is inconsistent with said section. Apparently, there is still the crime of abetting
piracy in Philippine waters under Presidential Decree No. 532.

Considering that the essence of piracy is one of robbery, any taking in a vessel with force upon
things or with violence or intimidation against person is employed will always be piracy. It cannot
co-exist with the crime of robbery. Robbery, therefore, cannot be committed on board a vessel.
But if the taking is without violence or intimidation on persons or force upon things, the crime of
piracy cannot be committed, but only theft.

Elements of mutiny

The vessel is on the high seas or Philippine waters;

Offenders are either members of its complement, or passengers of the vessel;

Offenders either

attack or seize the vessel; or

seize the whole or part of the cargo, its equipment, or personal belongings of the crew or passengers.
Mutiny is the unlawful resistance to a superior officer, or the raising of commotions and
disturbances aboard a ship against the authority of its commander.

Article 123

QUALIFIED PIRACY

QUALIFYING CIRCUMSTANCES:

Whenever they have seized a vessel by boarding or firing upon the same

Whenever the pirates have abandoned their victims without means of saving themselves

Whenever the crime is accompanied by murder, homicide, physical injuries, or rape. (the above
may result to qualified mutiny)

Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and cannot be
punished as separate crimes, nor can they be complexed with piracy.

Parricide/infanticide should be included (Judge Pimentel)

Murder/rape/homicide/physical injuries must have been committed on the passengers or

complement
12

In piracy, where rape, murder or homicide is committed, the mandatory

penalty of death is imposable. This means that even if the accused enters a
plea of guilty, the penalty of death will still be imposed because death is a
single and indispensable penalty. (People vs. Rodriguez, 135 SCRA 485)

The penalty for qualified piracy is reclusion perpetua to death. If any of the
circumstances enumerated under the law is proven or established, the
mandatory penalty of death should be imposed. The presence of mitigating
or aggravating circumstances will be ignored by the court.

Although in Article 123 merely refers to qualified piracy, there is also the crime of qualified mutiny.
Mutiny is qualified under the following circumstances:

When the offenders abandoned the victims without means of saving themselves; or

When the mutiny is accompanied by rape, murder, homicide, or physical injuries. Note that the
first circumstance which qualifies piracy does not apply to mutiny.

Republic Act No. 6235 (The Anti Hi-Jacking Law)

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

Four situations governed by anti hi-jacking law:

usurping or seizing control of an aircraft of Philippine registry while it is in flight, compelling the
pilots thereof to change the course or destination of the aircraft;

usurping or seizing control of an aircraft of foreign registry while within Philippine territory,
compelling the pilots thereof to land in any part of Philippine territory;

carrying or loading on board an aircraft operating as a public utility passenger aircraft in the
Philippines, any flammable, corrosive, explosive, or poisonous substance; and

loading, shipping, or transporting on board a cargo aircraft operating as a public utility in the
Philippines, any flammable, corrosive, explosive, or poisonous substance if this was done not in
accordance with the rules and regulations set and promulgated by the Air Transportation Office
on this matter.

Between numbers 1 and 2, the point of distinction is whether the aircraft is of Philippine registry or
foreign registry. The common bar question on this law usually involves number 1. The important
thing is that before the anti hi-jacking law can apply, the aircraft must be in flight. If not in flight,
whatever crimes committed shall be governed by the Revised Penal Code. The law makes a
distinction between aircraft of a foreign registry and of Philippine registry. If the aircraft subject
of the hi-jack is of Philippine registry, it should be in flight at the time of the hi-jacking.
Otherwise, the anti hi-jacking law will not apply and the crime is still punished under the Revised
Penal Code. The correlative crime may be one of grave coercion or grave threat. If somebody is
killed, the crime is homicide or murder, as the case may be. If there are some explosives carried
there, the crime is destructive arson. Explosives are by nature pyro-techniques. Destruction of
property with the use of pyro-technique is destructive arson. If there is illegally possessed or
carried firearm, other special laws will apply.

On the other hand, if the aircraft is of foreign registry, the law does not require that it be in
flight before the anti hi-jacking law can apply. This is because aircrafts of foreign registry are
considered in transit while they are in foreign countries. Although they may have been in a
13

foreign country, technically they are still in flight, because they have to move out of that foreign
country. So even if any of the acts mentioned were committed while the exterior doors of the
foreign aircraft were still open, the anti hi-jacking law will already govern.

Note that under this law, an aircraft is considered in flight from the moment all exterior doors
are closed following embarkation until such time when the same doors are again opened for
disembarkation. This means that there are passengers that boarded. So if the doors are closed to
bring the aircraft to the hangar, the aircraft is not considered as in flight. The aircraft shall be
deemed to be already in flight even if its engine has not yet been started.

Questions & Answers

1. The pilots of the Pan Am aircraft were accosted by some armed men and were told to proceed
to the aircraft to fly it to a foreign destination. The armed men walked with the pilots and went on
board the aircraft. But before they could do anything on the aircraft, alert marshals arrested them.
What crime was committed?

The criminal intent definitely is to take control of the aircraft, which is hi-jacking. It is a question
now of whether the anti-hi-jacking law shall govern.

The anti hi-jacking law is applicable in this case. Even if the aircraft is not yet about to fly, the
requirement that it be in flight does not hold true when in comes to aircraft of foreign registry.
Even if the problem does not say that all exterior doors are closed, the crime is hi-jacking. Since
the aircraft is of foreign registry, under the law, simply usurping or seizing control is enough as
long as the aircraft is within Philippine territory, without the requirement that it be in flight.

Note, however, that there is no hi-jacking in the attempted stage. This is a special law where the
attempted stage is not punishable.

2. A Philippine Air Lines aircraft is bound for Davao. While the pilot and co-pilot are taking their
snacks at the airport lounge, some of the armed men were also there. The pilots were followed by
these men on their way to the aircraft. As soon as the pilots entered the cockpit, they pulled out
their firearms and gave instructions where to fly the aircraft. Does the anti hi-jacking law apply?

No. The passengers have yet to board the aircraft. If at that time, the offenders are apprehended,
the law will not apply because the aircraft is not yet in flight. Note that the aircraft is of Philippine
registry.
3. While the stewardess of a Philippine Air Lines plane bound for Cebu was waiting for the
passenger manifest, two of its passengers seated near the pilot surreptitiously entered the pilot
cockpit. At gunpoint, they directed the pilot to fly the aircraft to the Middle East. However, before
the pilot could fly the aircraft towards the Middle East, the offenders were subdued and the
aircraft landed. What crime was committed?

The aircraft was not yet in flight. Considering that the stewardess was still waiting for the
passenger manifest, the doors were still open. Hence, the anti hi-jacking law is not applicable.
Instead, the Revised Penal Code shall govern. The crime committed was grave coercion or grave
threat, depending upon whether or not any serious offense violence was inflicted upon the pilot.

However, if the aircraft were of foreign registry, the act would already be subject to the anti hi-
jacking law because there is no requirement for foreign aircraft to be in flight before such law
would apply. The reason for the distinction is that as long as such aircraft has not returned to its
home base, technically, it is still considered in transit or in flight.
14

As to numbers 3 and 4 of Republic Act No. 6235, the distinction is whether the aircraft is a
passenger aircraft or a cargo aircraft. In both cases, however, the law applies only to public
utility aircraft in the Philippines. Private aircrafts are not subject to the anti hi-jacking law, in so
far as transporting prohibited substances are concerned.

If the aircraft is a passenger aircraft, the prohibition is absolute. Carrying of any prohibited,
flammable, corrosive, or explosive substance is a crime under Republic Act No. 6235. But if the
aircraft is only a cargo aircraft, the law is violated only when the transporting of the prohibited
substance was not done in accordance with the rules and regulations prescribed by the Air

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

However, under Section 7, any physical injury or damage to property which would result from the
carrying or loading of the flammable, corrosive, explosive, or poisonous substance in an aircraft,
the offender shall be prosecuted not only for violation of Republic Act No. 6235, but also for the
crime of physical injuries or damage to property, as the case may be, under the Revised Penal
Code. There will be two prosecutions here. Other than this situation, the crime of physical injuries
will be absorbed. If the explosives were planted in the aircraft to blow up the aircraft, the
circumstance will qualify the penalty and that is not punishable as a separate crime for murder.
The penalty is increased under the anti hi-jacking law.

All other acts outside of the four are merely qualifying circumstances and would bring about
higher penalty. Such acts would not constitute another crime. So the killing or explosion will only
qualify the penalty to a higher one.

Questions & Answers

1. In the course of the hi-jack, a passenger or complement was shot and killed.

What crime or crimes were committed?

The crime remains to be a violation of the anti hi-jacking law, but the penalty thereof shall be
higher because a passenger or complement of the aircraft had been killed. The crime of homicide
or murder is not committed.

2. The hi-jackers threatened to detonate a bomb in the course of the hi-jack. What crime or
crimes were committed?
Again, the crime is violation of the anti hi-jacking law. The separate crime of grave threat is not
committed. This is considered as a qualifying circumstance that shall serve to increase the
penalty.

TITLE TWO

CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE

Crimes against the fundamental laws of the State

Arbitrary detention (Art. 124);

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

Delaying release (Art. 126);

Expulsion (Art. 127);

15

Violation of domicile (Art. 128);

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

Searching domicile without witnesses (Art. 130);

Prohibition, interruption, and dissolution of peaceful meetings (Art. 131);

Interruption of religious worship (Art. 132); and

Offending the religious feelings (Art. 133);

Under this title, the offenders are public officers, except as to the last crime offending the
religious feelings under Article 133, which refers to any person. The public officers who may be
held liable are only those acting under supposed exercise of official functions, albeit illegally. But
private persons may also be liable under this title as when a private person conspires with a
public officer. What is required is that the principal offender must be a public officer. Thus, if a
private person conspires with a public officer, or becomes an accessory or accomplice, the
private person also becomes liable for the same crime. But a private person acting alone cannot
commit the crimes under Article 124 to 132 of this title.

Classes of Arbitrary Detention:

By detaining a person without legal ground

Delay in the delivery of detained persons to the proper judicial authorities

Delaying release

Article 124
ARBITRARY DETENTION

ELEMENTS:

That the offender is a public officer or employee (whose official duties include the authority
to make an arrest and detain persons; jurisdiction to maintain peace and order).

That he detains a person (actual restraint).

That the detention was without legal grounds (cannot be committed if with warrant).

Detention: when a person is placed in confinement or there is a restraint on his person.

Only those public officers whose official duties carry with it the authority to make an arrest and
detain persons can be guilty of this crime. So, if the offender does not possess such authority, the
crime committed by him is illegal detention.

Though the elements specify that the offender be a public officer or employee, private
individuals who conspire with public officers can also be liable.

In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains another
was held to be guilty of the crime of arbitrary detention. This is because he is a person in
authority vested with the jurisdiction to maintain peace and order within his barangay. In the
maintenance of such peace and order, he may cause the arrest and detention of troublemakers
16

or those who disturb the peace and order within his barangay. But if the legal basis for the
apprehension and detention does not exist, then the detention becomes arbitrary.

Legal grounds for the detention of any person:

commission of a crime

violent insanity or other ailment requiring compulsory confinement of the patient in a

hospital

escaped prisoner

When the peace officers acted in good faith even if the three (3) grounds mentioned above are not
obtaining, there is no Arbitrary Detention.

Without legal grounds:

he has not committed any crime or no reasonable ground of suspicion that he has
committed a crime

not suffering from violent insanity or any other ailment requiring compulsory confinement
in a hospital

Grounds for warrantless arrest:

Crime is about to be, is being, has been committed in his presence

Officer must have probable cause to believe based on personal knowledge of facts and
circumstances that the person probably committed the crime

For escaped prisoner no need for warrant

Example: Y was killed by unknown assailant. Officers got a tip and arrested X. X
voluntarily admitted to the officers that he did it although he was not asked. X was
detained immediately. According to the SC, there was NO arbitrary detention. Why?
Because once X made a confession, the officers had a right to arrest him.

Arbitrary detention can be committed thru simple imprudence or negligence.

(People vs.

Misa)

Periods of Detention penalized:

Detention not exceeding three days;

Detention for more than three days but not more than 15 days;

Detention for more than 15 days but not more than 6 months; and

Detention for more than 6 months.

Continuing crime is different from a continuous crime

Ramos v. Enrile: Rebels later on retire. According to the SC, once you have committed
rebellion and have not been punished or amnestied, then the rebels continue to engage
in rebellion, unless the rebels renounce his affiliation. Arrest can be made without a
warrant because this is a continuing crime.
17

Distinction between arbitrary detention and illegal detention

In arbitrary detention --

The principal offender must be a public officer. Civilians cannot commit the crime of arbitrary
detention except when they conspire with a public officer committing this crime, or become an
accomplice or accessory to the crime committed by the public officer; and

The offender who is a public officer has a duty which carries with it the authority to detain a
person.

In illegal detention --

The principal offender is a private person. But a public officer can commit the crime of illegal
detention when he is acting in a private capacity or beyond the scope of his official duty, or when
he becomes an accomplice or accessory to the crime committed by a private person.

The offender, even if he is a public officer, does not include as his function the power to arrest
and detain a person, unless he conspires with a public officer committing arbitrary detention.

Whether the crime is arbitrary detention or illegal detention, it is necessary that there must be an
actual restraint of liberty of the offended party. If there is no actual restraint, as the offended party
may still go to the place where he wants to go, even though there have been warnings, the crime
of arbitrary detention or illegal detention is not committed. There is either grave or light threat.

However, if the victim is under guard in his movement such that there is still restraint of liberty,
then the crime of either arbitrary or illegal detention is still committed.

Distinction between arbitrary detention and unlawful arrest

As to offender

In arbitrary detention, the offender is a public officer possessed with authority to make arrests.

In unlawful arrest, the offender may be any person.

As to criminal intent

In arbitrary detention, the main reason for detaining the offended party is to deny him of his
liberty.

In unlawful arrest, the purpose is 1) to accuse the offended party of a crime he did not commit; 2)
to deliver the person to the proper authority; and 3) to file the necessary charges in a way trying
to incriminate him.

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

Article 125

DELAY IN THE DELIVERY OF DETAINED PERSONS

ELEMENTS:

a. That the offender is a public officer or employee

b. That he has detained a person for some legal grounds

18

That he fails to deliver such person to the proper judicial authority within:

12 hours, if detained for crimes/offenses punishable by light penalties, or their equivalent

18 hours, for crimes/offenses punishable by correctional penalties, or their equivalent or

36 hours, for crimes/offenses punishable by capital punishment or afflictive penalties, or

their equivalent

Article 125 covers situations wherein the person detained has been arrested
without a warrant but his arrest is nonetheless lawful. It is a felony committed
by omission because of the failure of the offender to deliver the detained
person to the proper judicial authority within 12 hours, 18 hours and 36 hours
as the case may be.

At the beginning, the detention is legal since it is in the pursuance of a lawful arrest. However, the
detention becomes arbitrary when the period thereof exceeds 12, 18 or 36 hours, as the case
may be, depending on whether the crime is punished by light, correctional or afflictive penalty or
their equivalent.

Really means delay in filing necessary information or charging of person detained in

court.

May be waived if a preliminary investigation is asked for.

Under the Revised Rules of Court, when the person arrested is arrested for a crime which gives
him the right to preliminary investigation and he wants to avail his right to a preliminary
investigation, he would have to waive in writing his rights under 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 to waive this in writing, the arresting officer will have to comply with Article
125 and file the case immediately in court without preliminary investigation. In such case, the
arrested person, within five days after learning that the case has been filed in court without
preliminary investigation, may ask for preliminary investigation. In this case, the public officer who
made the arrest will no longer be liable for violation of Article 125.

Does not contemplate actual physical delivery but at least there must be a complaint
filed. Duty complied with upon the filing of the complaint with the judicial authority
(courts, prosecutors though technically not a judicial authority, for purposes of this
article, hes considered as one.)

Delivery of detained person consists in making charge of filing a compliant

against the prisoner with the proper judicial authority. It does not involve the
physical delivery of the prisoner before the judge (Sayo vs. Chief of Police).

The filing of the information in court does not cure illegality of detention. Neither does it
affect the legality of the confinement under process issued by the court.

To escape from this, officers usually ask accused to execute a waiver which should be
under oath and with assistance of counsel. Such waiver is not violative of the accused
constitutional right.

What is length of waiver? Light offense 5 days. Serious and less serious offenses

7 to 10 days. (Judge Pimentel)

Article does not apply when arrest is via a warrant of arrest

19

Within what period should a police officer who has arrested a person under a warrant of arrest turn over the
arrested person to the judicial authority?

There is no time limit specified except that the return must be made within a reasonable time. The period
fixed by law under Article 125 does not apply because the arrest was made by virtue of a warrant of arrest.

If offender is a private person, crime is illegal detention

Before Article 125 may be applied, it is necessary that initially, the detention of the arrested person must be
lawful because the arrest is based on legal grounds. If the arrest is made without a warrant, this constitutes
an unlawful arrest. Article 269(unlawful arrest), not Article 125, will apply. If the arrest is not based on legal
grounds, the arrest is pure and simple arbitrary detention. Article 125 contemplates a situation where the
arrest was made without warrant but based on legal grounds. This is known as citizens arrest.

A police officer has no authority to arrest and detain a person on the basis merely of the
complaint of the offended party, even if after investigation he becomes convinced that the
accused is guilty of the offense charged. What the complainant may do is to file a complaint
with the court and ask for the issuance of a warrant of arrest.

Arbitrary Detention (124)

Delay in Delivery of Detained (125)

Detention is illegal from the beginning.

Detention is legal in the beginning, but

illegality starts from the expiration of the

specified periods without the persons detained

having been delivered to the proper judicial

authority.
Article 126

DELAYING RELEASE

ELEMENTS:

That the offender is a public officer or employee

That there is a judicial or executive order for the release of a prisoner or detention prisoner, or that there
is a proceeding upon a petition for the liberation of such person

That the offender without good reason delays:

the service of the notice of such order to the prisoner, or

the performance of such judicial or executive order for the release of the prisoner, or

the proceedings upon a petition for the release of such person

Three acts are punishable:

delaying the performance of a judicial or executive order for the release of a prisoner

delaying the service of notice of such order to said prisoner

delaying the proceedings upon any petition for the liberation of such person

Wardens and jailers are the persons most likely to violate this provision
20

Provision does not include legislation

Article 127

EXPULSION

ELEMENTS:

That the offender is a public officer or employee

That he expels any person from the Philippines, or compels a person to change his residence

That the offender is not authorized to do so by law

2 acts punishable:

by expelling a person from the Philippines

by compelling a person to change his residence

The essence of this crime is coercion but the specific crime is expulsion when committed by a
public officer. If committed by a private person, the crime is grave coercion.

In the Philippines, only the President of the Republic has the power to deport
aliens whose continued stay in the country constitutes a menace to the peace
and safety of the community.

In the case of Filipino citizens, only the court, by final judgment, can order a
person to change his residence.
In Villavicencio v. Lukban, 39 Phil 778, the mayor of the City of Manila wanted to make the city
free from prostitution. He ordered certain prostitutes to be transferred to Davao, without observing
due processes since they have not been charged with any crime at all. It was held that the crime
committed was expulsion.

Does not include undesirable aliens; destierro; or when sent to prison

Questions & Answers

1. Certain aliens were arrested and they were just put on the first aircraft which brought them to
the country so that they may be out without due process of law. Was there a crime committed?

Yes. Expulsion.

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

Grave coercion, not expulsion, because a Filipino cannot be deported. This crime refers only to
aliens.

If X (Filipino) after he voluntarily left, is refused re-entry is considered forcing him to

change his address here

Threat to national security is not a ground to expel or change his address.

21

Article 128

VIOLATION OF DOMICILE

ELEMENTS:

That the offender is a public officer or employee

That he is not authorized by judicial order to enter the dwelling and/or to make a search
therein for papers or other effects

That he commits any of the following acts:

entering any dwelling against the will of the owner thereof

searching papers or other effects found therein without the previous consent of such owner

refusing to leave the premises, after having surreptitiously entered said dwelling and after
having been required to leave the same

Aggravating Circumstance (medium and maximum of penalty imposed):

Offense committed at nighttime

Papers or effects not constituting evidence of a crime be not returned immediately

In order to commit this crime, the entry must be against the will of the owner.
If the entry is only without the consent of the owner, the crime of violation of
domicile is not committed.

The prohibition may be expressed or implied. If the signs Do not enter and
Strangers keep out are posted in front of the house or dwelling, then the
prohibition is express. If the door is locked, or even if it is open but these are
barriers to indicate the manifest intention of the owner to bar strangers from
entering, there is implied prohibition.

The primary object of the law is to preserve the privacy of abode of the
offended party. Hence, if the privacy is already lost, as when the offender has
been allowed by the owner to enter the dwelling together with other persons,
any subsequent change of attitude will not restore the privacy which was
already lost. When privacy is waived, trespass to dwelling or violation of
domicile cannot be committed.

If the offender who enters the dwelling against the will of the owner thereof is a private
individual, the crime committed is trespass to dwelling (Art 280)

When a public officer searched a person outside his dwelling without a search warrant
and such person is not legally arrested for an offense, the crime committed by the public
officer is grave coercion, if violence or intimidation is used (Art 286), or unjust vexation, if
there is no violence or intimidation (Art 287)

A public officer without a search warrant cannot lawfully enter the dwelling against the
will of the owner, even if he knew that someone in that dwelling is having unlawful
possession of opium
22

Under Rule 113(sec. 11) of the Revised Rules of Court, when a person to be arrested enters

premise and closes it thereafter, the public officer, after giving notice of an arrest, can break into
the premise. He shall not be liable for violation of domicile.

3 acts punishable:

person enters dwelling w/o consent or against the will

In the plain view doctrine, public officer should be legally entitled to be in the place where the
effects were found. If he entered the place illegally and he saw the effects, doctrine inapplicable;
thus, he is liable for violation of domicile.

person enters and searches for papers and effects

Public officer who enters with consent searches for paper and effects without the consent of the
owner. Even if he is welcome in the dwelling, it does not mean he has permission to search.

person entered secretly and refuses to leave after being asked to

The act punished is not the entry but the refusal to leave. If the offender upon being directed to
leave, followed and left, there is no crime of violation of domicile. Entry must be done
surreptitiously; without this, crime may be unjust vexation. But if entering was done against the
will of the occupant of the house, meaning there was express or implied prohibition from entering
the same, even if the occupant does not direct him to leave, the crime of violation of domicile is
already committed because it would fall in number 1.

Being authorized by law means with search warrant, to save himself or do some
things good for humanity

There are only three recognized instances when search without a warrant is considered valid,
and, therefore, the seizure of any evidence done is also valid. Outside of these, search would be
invalid and the objects seized would not be admissible in evidence.

Search made incidental to a valid arrest;

Where the search was made on a moving vehicle or vessel such that the exigency of he situation
prevents the searching officer from securing a search warrant;

When the article seized is within plain view of the officer making the seizure without making a
search therefore.

Papers and effects need not be part of a crime.

Article 129

SEARCH WARRANTS MALICIOUSLY OBTAINED

ELEMENTS:

That the offender is a public officer or employee

That he procures a search warrant

That there is no just cause

In order that a search warrant may be issued, it must be based on probable

cause in connection with one offense, to be determined by a judge after
examination under
23

oath of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

This means there was no probable cause determined in obtaining the search warrant.

Although void, the search warrant is entitled to respect because of presumption of regularity.

One remedy is a motion to quash the search warrant, not refusal to abide by it. The public officer
may also be prosecuted for perjury, because for him to succeed in obtaining a search warrant
without a probable cause, he must have perjured himself or induced someone to commit perjury
to convince the court.

The true test of lack of just cause is whether the sworn statement filed in
support of the application for search warrant has been done in such a manner
that perjury could be charged and the affiant can be held liable for making
such false statement. The oath required refers to the truth of the facts within
the personal knowledge of the applicant and his witnesses.

ABUSE IN THE SERVICE OF WARRANT OR EXCEEDING AUTHORITY OR

USING UNNECESSARY SEVERITY IN EXECUTING A SEARCH WARRANT
LEGALLY PROCURED

ELEMENTS:

That the offender is a public officer or employee

That he has legally procured a search warrant

That he exceeds his authority or uses unnecessary severity in executing the same

Search warrant is valid for 10 days from its date

Search warrant is an order in writing issued in the name of the People, signed by the
judge and directed to a public officer, commanding him to search for personal property
described therein and bring it before the court

No just cause warrant is unjustified

Search limited to what is described in the warrant, all details must be with particularity

The officer exceeded his authority under the warrant To illustrate, let us say that there was a
pusher in a condo unit. The PNP Narcotics Group obtained a search warrant but the name of
person in the search warrant did not tally with the address stated. Eventually, the person with the
same name was found but in a different address. The occupant resisted but the public officer
insisted on the search. Drugs were found and seized and occupant was prosecuted and
convicted by the trial court. The Supreme Court acquitted him because the public officers are
required to follow the search warrant to the letter. They have no discretion on the matter. Plain
view doctrine is inapplicable since it presupposes that the officer was legally entitled to be in the
place where the effects where found. Since the entry was illegal, plain view doctrine does not
apply.

Malicious warrant. Example. X was a respondent of a search warrant for illegal

possession of firearms. A return was made. The gun did not belong to X and the witness
had no personal knowledge that there is a gun in that place.
24

Abuse examples:

X owner was handcuffed while search was going-on.

Tank was used to ram gate prior to announcement that a search will be made

The search warrant is not a license to commit destruction.

Persons who were not respondents were searched

Article 130

SEARCHING DOMICILE WITHOUT WITNESSES

ELEMENTS :

That the offender is a public officer or employee

That he is armed with a search warrant legally procured

That he searches the domicile, papers or other belongings of any person

That the owner, or any member of his family, or two witnesses residing in the same locality are
not present

Order of those who must witness the search:

Homeowner
Members of the family of sufficient age and discretion

Responsible members of the community (cant be influenced by the searching party)

Validity of the search warrant can be questioned only in 2 courts: 1) where issued or 2)
where the case is pending. Latter is preferred for objective determination.

Article 130 has no application to search and seizure made on moving vehicles
because the application of this law is limited to dwelling and personal
properties such as papers and effects found therein.

There are searches and seizures which are authorized by law and which can
be done without the attendance of witnesses. For instance, the Tariff and
Customs Code authorizes persons with police authority under Sec. 2203, to
enter; pass through or search any land, enclosure, warehouse, store or
building, not being used as a dwelling house; and to inspect, search and
examine any vessel or aircraft, and any trunk, package, box or envelope, or
any person on board, or to stop and search and examine any vehicle, beast or
person suspected of holding or conveying any dutiable or prohibited article
introduced into the Philippines contrary to law.

Article 131

PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL

MEETINGS
25

ELEMENTS:

Offender is a public officer or employee

He performs any of the ff. acts:

prohibiting or interrupting, without legal ground the holding of a peaceful meeting, or

dissolving the same (e.g. denial of permit in arbitrary manner).

hindering any person from joining any lawful association or from attending any of its
meetings.

prohibiting or hindering any person from addressing, either alone or together with others,
any petition to the authorities for the correction of abuses or redress of grievances

Two criteria to determine whether Article 131 would be violated:

Dangerous tendency rule applicable in times of national unrest such as to prevent coup detat.

Clear and present danger rule applied in times of peace. Stricter rule.

If the offender is a private individual, the crime is disturbance of public order (Art 153)

Meeting must be peaceful and there is no legal ground for prohibiting, dissolving or
interrupting that meeting

If in the course of the assembly the participants commit illegal acts like oral defamation or inciting
to sedition, a public officer or law enforcer can stop or dissolve the meeting. The permit given is
not a license to commit a crime.

Meeting is subject to regulation

If the permit is denied arbitrarily, Article 131 is violated. If the officer would not give the permit
unless the meeting is held in a particular place which he dictates defeats the exercise of the right
to peaceably assemble, Article 131 is violated.

Offender must be a stranger, not a participant, in the peaceful meeting; otherwise, its
unjust vexation

Interrupting and dissolving a meeting of the municipal council by a public officer is a

crime against the legislative body, not punishable under this article

The person talking on a prohibited subject at a public meeting contrary to agreement that
no speaker should touch on politics may be stopped

But stopping the speaker who was attacking certain churches in public meeting is a
violation of this article

Prohibition must be without lawful cause or without lawful authority

Those holding peaceful meetings must comply with local ordinances. Example:
Ordinance requires permits for meetings in public places. But if police stops a
26

meeting in a private place because theres no permit, officer is liable for stopping the
meeting.

Distinctions between prohibition, interruption, or dissolution of peaceful meetings under Article

131, and tumults and other disturbances, under Article 153

As to the participation of the public officer

In Article 131, the public officer is not a participant. As far as the gathering is concerned, the
public officer is a third party.

If the public officer is a participant of the assembly and he prohibits, interrupts, or dissolves the
same, Article 153 is violated if the same is conducted in a public place.

As to the essence of the crime

In Article 131, the offender must be a public officer and, without any legal ground, he prohibits,
interrupts, or dissolves a peaceful meeting or assembly to prevent the offended party from
exercising his freedom of speech and that of the assembly to petition a grievance against the
government.

In Article 153, the offender need not be a public officer. The essence of the crime is that of
creating a serious disturbance of any sort in a public office, public building or even a private place
where a public function is being held.

Article 132

INTERRUPTION OF RELIGIOUS WORSHIP

ELEMENTS:

That the officer is a public officer or employee

That religious ceremonies or manifestations of any religion are about to take place or are
going on

That the offender prevents or disturbs the same

Circumstance qualifying the offense: if committed with violence or threats

Reading of Bible and then attacking certain churches in a public plaza is not a ceremony
or manifestation of religion, but only a meeting of a religious sect. But if done in a private
home, its a religious service

Religious Worship: people in the act of performing religious rites for a religious
ceremony; a manifestation of religion. Ex. Mass, baptism, marriage

X, a private person, boxed a priest while the priest was giving homily and while the latter
was maligning a relative of X. Is X liable? X may be liable under Art 133 because X is a
private person.

When priest is solemnizing marriage, he is a person in authority, although in other cases,

hes not.
27

Article 133

OFFENDING RELIGIOUS FEELINGS

ELEMENTS:

That the acts complained of were performed

in a place devoted to religious worship, or (for this element, no need of religious ceremony,
only the place is material)

during the celebration of any religious ceremony

That the acts must be notoriously offensive to the feelings of the faithful (deliberate intent to
hurt the feelings)

The offender is any person

There is a deliberate intent to hurt the feelings of the faithful, directed against religious tenet

If in a place devoted to religious purpose, there is no need for an ongoing religious

ceremony

Example of religious ceremony (acts performed outside the church). Processions and
special prayers for burying dead persons but NOT prayer rallies

Acts must be directed against religious practice or dogma or ritual for the purpose of
ridicule, as mocking or scoffing or attempting to damage an object of religious veneration

There must be deliberate intent to hurt the feelings of the faithful, mere arrogance or
rudeness is not enough
In determining whether an act is offensive to the feelings of the faithful, the
same must be viewed or judged from the standpoint of the offended religion
and not from the point of view of the offender (People vs. Baes, 68 Phil. 203).

CRIME

Nature of Crime

Who are Liable

If Element Missing

Prohibition,

Crime

against the

Public officers,

If not by public officer =

Interruption

and

fundamental law of

Outsiders

tumults

Dissolution

of

the state

Peaceful Meeting
(131)

Interruption

of

Crime

against the

Public officers,

If by insider = unjust

Religious Worship

fundamental law of

Outsiders

vexation

(132)

the state

If not religious = tumult or

alarms

If not notoriously offensive

= unjust vexation

Offending

the

Crime

against

Public officers,

If not tumults = alarms

Religious Feeling

public order

private persons,

and scandal

(133)

outsiders
If meeting illegal at onset

= inciting to sedition or

rebellion
28

TITLE THREE

CRIMES AGAINST PUBLIC ORDER

Crimes against public order

Rebellion or insurrection (Art. 134);

Coup d etat (Art. 134-A)

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

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

Inciting to rebellion (Art. 138);

Sedition (Art. 139);

Conspiracy to commit sedition (Art. 141);

Inciting to sedition (Art. 142);

Acts tending to prevent the meeting of Congress and similar bodies (Art. 143);

Disturbance of proceedings of Congress or similar bodies (Art. 144);

Violation of parliamentary immunity (Art. 145);

Illegal assemblies (Art. 146);

Illegal associations (Art. 147);

Direct assaults (Art. 148);

Indirect assaults (Art. 149);

Disobedience to summons issued by Congress, its committees, etc., by the

constitutional commissions, its committees, etc. (Art. 150);

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

Tumults and other disturbances of public order (Art. 153);

Unlawful use of means of publication and unlawful utterances (Art. 154);

Alarms and scandals (Art. 155);

Delivering prisoners from jails (Art. 156);

Evasion of service of sentence (Art. 157);

Evasion on occasion of disorders (Art. 158);

29

Violation of conditional pardon (Art. 159); and

Commission of another crime during service of penalty imposed for another previous
offense (Art. 160).

Article 134

REBELLION OR INSURRECTION

ELEMENTS:

That there be

public uprising and

taking arms against the government (force/violence)

That the purpose of the uprising or movement is either

to remove from the allegiance to said government or its laws

the territory of the Philippines or any part thereof, or

any body of land, naval or other armed forces, or

2 To deprive the chief executive or congress, wholly or partially, of any of their powers or
prerogatives
Persons liable for rebellion

a. Any person who: 1. promotes

maintains, or

heads a rebellion or insurrection; or

Any person who, while holding any public office or employment, takes part therein by:

engaging in war against the forces of the government

destroying property or committing serious violence

exacting contributions or diverting public funds from the lawful purpose for which they
have been appropriated (Note: diverting public funds is malversation absorbed in
rebellion);

Any person merely participating or executing the command of others in rebellion

The essence of this crime is a public uprising with the taking up of arms. It requires a multitude of
people. It aims to overthrow the duly constituted government. It does not require the participation
of any member of the military or national police organization or public officers and generally
carried out by civilians. Lastly, the crime can only be committed through force and violence.

The crime of rebellion cannot be committed by a single individual. Invariably,

it is committed by several persons for the purpose of overthrowing the duly
constituted or organized government. In the Philippines, what is known to the
ordinary citizen as a
30

symbol of Government would be the barangay, represented by its officials;

the local government represented by the provincial and municipal officials;
and the national government represented by the President, the Chief Justice
and the Senate President and the Speaker of the House of Representatives.

Success is immaterial, purpose is always political

The crime of rebellion is essentially a political crime. The intention of the

rebel is to substitute himself in place of those who are in power. His method
of placing himself in authority with the use of violence, duress or intimidation,
assassination or the commission of common crimes like murder, kidnapping,
arson, robbery and other heinous crimes in what we call rebellion.

Rebellion used where the object of the movement is completely to overthrow and
supersede the existing government

Insurrection refers to a movement which seeks merely to effect some change of minor
importance to prevent the exercise of govt authority w/ respect to particular matters or
subjects

The phrase to remove allegiance from the government is used to

emphasize that the object of the uprising could be limited to certain areas,
like isolating a barangay or municipality or a province in its loyalty to the duly
constituted government or the national government.

Allegiance is a generic term which includes loyalty, civil obedience and civil
service.

The law on rebellion however, does not speak only of allegiance or loss of
territory. It also includes the efforts of the rebel to deprive the President of
the Philippines of the exercise of his power to enforce the law, to exact
obedience of laws and regulations duly enacted and promulgated by the duly
constituted authorities.

Actual clash of arms w/ the forces of the govt, not necessary to convict the accused who
is in conspiracy w/ others actually taking arms against the govt
Purpose of the uprising must be shown but it is not necessary that it be accomplished

A change of government w/o external participation

RISING PUBLICLY and TAKING ARMS AGAINST GOVERNMENT actual participation.

If there is no public uprising, the crime is of direct assault.

When any of the objectives of rebellion is pursued but there is no public uprising in the legal
sense, the crime is direct assault of the first form. But if there is rebellion, with public uprising,
direct assault cannot be committed.

Mere giving of aid or comfort is not criminal in the case of rebellion. Merely sympathizing
is not participation, there must be ACTUAL participation

There must be a public apprising and taking up of arms for the specified purpose or purposes
mentioned in Article 134. The acts of the accused who is not a member of the
31

Hukbalahap organization of sending cigarettes and food supplies to a Huk leader; the changing of
dollars into pesos for a top level communist; and the helping of Huks in opening accounts with
the bank of which he was an official, do not constitute Rebellion. (Carino vs. People, et al., 7

SCRA 900).

Not necessary that there is killing, mere threat of removing Phil is sufficient

Rebellion may be committed even without a single shot being fired. No encounter needed. Mere
public uprising with arms enough.

Rebellion cannot be complexed with any other crime.

Common crimes perpetrated in furtherance of a political offense are divested

of their character as common offenses and assume the political complexion
of the main crime which they are mere ingredients, and consequently, cannot
be punished separately from the principal offense, or complexed with the
same.

ORTEGA OPINION:

Rebellion can now be complexed with common crimes. Not long ago, the Supreme Court, in

Enrile v. Salazar, 186 SCRA 217, reiterated and affirmed the rule laid down in People v.
Hernandez, 99 Phil 515, that rebellion may not be complexed with common crimes which are
committed in furtherance thereof because they are absorbed in rebellion. In view of said
reaffirmation, some believe that it has been a settled doctrine that rebellion cannot be complexed
with common crimes, such as killing and destruction of property, committed on the occasion and
in furtherance thereof.

This thinking is no longer correct; there is no legal basis for such rule now.

The statement in People v. Hernandez that common crimes committed in furtherance of rebellion
are absorbed by the crime of rebellion, was dictated by the provision of Article 135 of the Revised
Penal Code prior to its amendment by the Republic Act No. 6968 (An Act Punishing the Crime of
Coup Detat), which became effective on October 1990. Prior to its amendment by Republic Act

No. 6968, Article 135 punished those who while holding any public office or employment, take
part therein by any of these acts: engaging in war against the forces of Government; destroying
property; committing serious violence; exacting contributions, diverting funds for the lawful
purpose for which they have been appropriated.

Since a higher penalty is prescribed for the crime of rebellion when any of the specified acts are
committed in furtherance thereof, said acts are punished as components of rebellion and,
therefore, are not to be treated as distinct crimes. The same acts constitute distinct crimes when
committed on a different occasion and not in furtherance of rebellion. In short, it was because

Article 135 then punished said acts as components of the crime of rebellion that precludes the
application of Article 48 of the Revised Penal Code thereto. In the eyes of the law then, said acts
constitute only one crime and that is rebellion. The Hernandez doctrine was reaffirmed in Enrile v.
Salazar because the text of Article 135 has remained the same as it was when the Supreme
Court resolved the same issue in the People v. Hernandez. So the Supreme Court invited
attention to this fact and thus stated:

There is a an apparent need to restructure the law on rebellion, either to raise the penalty
therefore or to clearly define and delimit the other offenses to be considered absorbed thereby, so
that it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken
in its name. The court has no power to effect such change, for it can only interpret the law as it
stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will
perceive the need for promptly seizing the initiative in this matter, which is purely within its
province.
32

Obviously, Congress took notice of this pronouncement and, thus, in enacting Republic Act No.

6968, it did not only provide for the crime of coup detat in the Revised Penal Code but moreover,
deleted from the provision of Article 135 that portion referring to those

who, while holding any public office or employment takes part therein [rebellion or
insurrection], engaging in war against the forces of government, destroying property or
committing serious violence, exacting contributions or diverting public funds from the lawful
purpose for which they have been appropriated

Hence, overt acts which used to be punished as components of the crime of rebellion have been
severed therefrom by Republic Act No. 6968. The legal impediment to the application of Article 48
to rebellion has been removed. After the amendment, common crimes involving killings, and/or
destructions of property, even though committed by rebels in furtherance of rebellion, shall bring
about complex crimes of rebellion with murder/homicide, or rebellion with robbery, or rebellion
with arson as the case may be.

To reiterate, before Article 135 was amended, a higher penalty is imposed when the offender
engages in war against the government. "War" connotes anything which may be carried out in
pursuance of war. This implies that all acts of war or hostilities like serious violence and
destruction of property committed on occasion and in pursuance of rebellion are component
crimes of rebellion which is why Article 48 on complex crimes is inapplicable. In amending
Article135, the acts which used to be component crimes of rebellion, like serious acts of violence,
have been deleted. These are now distinct crimes. The legal obstacle for the application of Article
48, therefore, has been removed. Ortega says legislators want to punish these common crimes
independently of rebellion. Ortega cites no case overturning Enrile v. Salazar.

However, illegal possession of firearms in furtherance of rebellion is distinct from the

crime of rebellion.

The offense of illegal possession of firearm is a malum prohibitum, in which case, good faith and
absence of criminal intent are not valid defenses.

Furthermore, it is a continuing crime such along with the crime of conspiracy or proposal
to commit such

A private crime may be committed during rebellion. Examples: killing, possessions of

firearms, illegal association are absorbed. Rape, even if not in furtherance of rebellion
cannot be complexed
If killing, robbing were done for private purposes or for profit, without any political
motivation, the crime would be separately be punished and would not be embraced by
rebellion (People v. Fernando)

Person deemed leader of rebellion in case he is unknown:

Any person who in fact:

directed the others

spoke for them

signed receipts and other documents issued in their name

performed similar acts on behalf of the rebels

Distinctions between rebellion and sedition

As to nature

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

In sedition, it is sufficient that the public uprising be tumultuous.

33

As to purpose

In rebellion, the purpose is always political.

In sedition, the purpose may be political or social. Example: the uprising of squatters against
Forbes park residents. The purpose in sedition is to go against established government, not to
overthrow it.

Article 134-A

COUP D ETAT

ELEMENTS:

Swift attack

Accompanied by violence, intimidation, threat, strategy or stealth

Directed against:

duly constituted authorities

any military camp or installation

communication networks or public utilities

other facilities needed for the exercise and continued possession of power d. Singly or
simultaneously carried out anywhere in the Philippines

Committed by any person or persons belonging to the military or police or holding any public
office or employment; with or without civilian support or participation
With or without civilian support or participation

Purpose of seizing or diminishing state power

The essence of the crime is a swift attack upon the facilities of the Philippine government, military
camps and installations, communication networks, public utilities and facilities essential to the
continued possession of governmental powers. It may be committed singly or collectively and
does not require a multitude of people.

The objective may not be to overthrow the government but only to destabilize or paralyze the
government through the seizure of facilities and utilities essential to the continued possession
and exercise of governmental powers. It requires as principal offender a member of the AFP or of
the PNP organization or a public officer with or without civilian support. Finally, it may be carried
out not only by force or violence but also through stealth, threat or strategy.

How do you distinguish between coup detat and rebellion?

Rebellion is committed by any person whether a private individual or a public

officer whereas in coup detat, the offender is a member of the military or
police force or holding a public office or employment.
34

In rebellion, the object is to alienate the allegiance of a people in a territory, whether

wholly or partially, from the duly constituted government; in coup detat, the object or
purpose is to seize or diminish state power.

In both instances, the offenders intend to substitute themselves in place of those who
are in power.

Treason (114)

Rebellion (134)

Coup

detat

Sedition (139)

(134-A)
Nature of

Crime

against

Crime

against

Crime

Crime

against

Crime

National Security

Public Order

against

Public Order

Public Order
Overt

levying

war

Public uprising

See article.

Rising

publicly

or

Acts

against the govt;

AND

tumultuously

OR

Taking

up arms

(caused

by more

adherence

and

against the govt

than 3 armed men

giving

aid

or

or provided

with

comfort

to

means of violence)

enemies
Purpose

Deliver

the

govt

See article.

Seizing

or

See enumeration in

of

to enemy during

diminishing

article.

objective

war

state power.
Article 135

PENALTIES

Who are liable?

Any person who:

Promotes

Maintains

heads a rebellion or insurrection

Any person who, while holding any public office or employment, takes part therein

engaging in war against the forces of the govt

destroying property or committing serious violence

exacting contributions or diverting public funds from the lawful purpose for which they have been
appropriated

Any person merely participating or executing the command of other in a rebellion

When conspiracy is present in the commission of the crime, the act of one is the act of
all. In committing rebellion and coup detat, even if conspiracy as a means to commit
the crime is established, the principal of criminal liability under Article 17 of the
Revised Penal Code is not followed.

In Government Service

Not in Government Service

Anyone who leads, directs, commands others

Anyone who participates or in an manner,

to undertake a coup.

supports, finances, abets, aids in a coup.

35

Serious violence is that inflicted upon civilians, which may result in homicide. It is not
limited to hostilities against the armed force.

Diverting public funds is malversation absorbed in rebellion

NOTES:

Public officer must take active part because mere silence or omission not punishable in
rebellion

It is not a defense in rebellion that the accused never took the oath of allegiance to, or
that they never recognized the government

Rebellion cannot be complexed with murder and other common crimes committed in
pursuance of the movement to overthrow the government

Subversion, just like the crimes of rebellion, conspiracy or proposal to commit

the crimes of rebellion or subversion and crimes or offenses committed in
furtherance thereof constitute direct assaults against the State and are in the
nature of continuing crimes (

Umil vs. Ramos).

Killing, robbing etc for private persons or for profit, without any political motivation, would
be separately punished and would not be absorbed in the rebellion.

Article 136

CONSPIRACY TO COMMIT COUP D ETAT, REBELLION OR

INSURRECTION
ELEMENTS:

2 more persons come to an agreement to rise publicly and take arms against the government

For any of the purposes of rebellion

They decide to commit it

PROPOSAL TO COMMIT COUP D ETAT, REBELLION OR INSURRECTION

(136)

ELEMENTS:

A person who has decided to rise publicly and take arms the government

For any of the purposes of rebellion

Proposes its execution to some other person/s

Organizing a group of soldiers, soliciting membership in, and soliciting funds for the
organization show conspiracy to overthrow the govt
36

The mere fact of giving and rendering speeches favoring Communism would not make
the accused guilty of conspiracy if theres no evidence that the hearers then and there
agreed to rise up in arms against the govt

Conspiracy must be immediately prior to rebellion

If it is during the rebellion, then it is already taking part in it.

Article 137

DISLOYALTY OF PUBLIC OFFICERS AND EMPLOYEES

ACTS PUNISHED:

Failing to resist rebellion by all the means in their power

Continuing to discharge the duties of their offices under the control of rebels

Accepting appointment to office under rebels

Presupposes existence of rebellion

Must not be in conspiracy with rebels or coup plotters

If there are means to prevent the rebellion but did not resist it, then theres disloyalty. If
there are no means, no fault

If position is accepted in order to protect the people, not covered by this

The collaborator must not have tried to impose the wishes of the rebels on the people.
Disloyalty as a crime is not limited to rebellion alone but should now include
the crime of coup detat. Rebellion is essentially a crime committed by
private individuals while coup detat is a crime that should be classified as a
crime committed by public officers like malversation, bribery, dereliction of
duty and violations of the anti-Graft and Corrupt Practices Act.

If the public officer or employee, aside from being disloyal, does or commits
acts constituting the crime of rebellion or coup detat, he will no longer be
charged for the simple crime of disloyalty but he shall be proceeded against
for the grave offense of rebellion or coup detat.

Article 138

INCITING TO REBELLION OR INSURRECTION

ELEMENTS:

That the offender does not take arms or is not in open hostility against the government

That he incites others to the execution of any of the acts of rebellion

That the inciting is done by means of speeches, proclamations, writings, emblems, banners or
other representations tending to the same end
37

Intentionally calculated to seduce others to rebellion

There must be uprising to take up arms and rise publicly for the purposes indicated in Art
134

One who promotes, maintains or heads a rebellion and who act at the same
time incites or influences others to join him in his war efforts against the duly
constituted government cannot be held criminally liable for the crime of
inciting to rebellion because, as the principal to the crime of rebellion, the act
of inciting to commit a rebellion is inherent to the graver crime of rebellion.

Proposal to Commit Rebellion (136)

Inciting to Rebellion (138)

The person who proposes has decided to

Not required that the offender has

commit rebellion.

decided to commit rebellion.

The person who proposes the execution

The inciting is done publicly.

of the crime uses secret means.

Article 139
SEDITION

ELEMENTS:

That the offenders rise

Publicly (if no public uprising = tumult and other disturbance of public order)

Tumultuously (vis--vis rebellion where there must be a taking of arms)

That they employ force, intimidation, or other means outside of legal methods

That the offenders employ any of those means to attain any of the following objects:

to prevent the promulgation or execution of any law or the holding of any popular election

to prevent the national government, or any provincial or municipal government, or any public
thereof from freely exercising its or his functions, or prevent the execution of any administrative
order

to inflict any act or hate or revenge upon the person or property of any public officer or
employee

to commit for any political or social end, any act of hate or revenge against private persons or
any social class (hence, even private persons may be offended parties)

to despoil, for any political or social end, any person, municipality or province, or the national
government of all its property or any part thereof

Sedition: raising of commotion or disturbances in the State. Its ultimate object is a

violation of the public peace or at least such measures that evidently engenders it.
38

The crime of sedition is committed by rising publicly and tumultuously. The

two elements must concur.

The crime of sedition does not contemplate the taking up of arms against the government
because the purpose of this crime is not the overthrow of the government. Notice from the
purpose of the crime of sedition that the offenders rise publicly and create commotion and
disturbance by way of protest to express their dissent and obedience to the government or to the
authorities concerned. This is like the so-called civil disobedience except that the means
employed, which is violence, is illegal.

Difference from rebellion object or purpose of the uprising.

For sedition sufficient that uprising is tumultuous. In rebellion there must be taking up
of arms against the government.

Sedition purpose may be either political or social. In rebellion always political

Tumultuous is a situation wherein the disturbance or confusion is caused

by at least four persons. There is no requirement that the offenders should be
armed.

Preventing public officers from freely exercising their functions

In sedition offender may be a private or public person (Ex. Soldier)

Public uprising and the object of sedition must concur

Q: Are common crimes absorbed in sedition?

In P v. Umali, SC held that NO. Crimes committed in that case were independent of each
other.

Preventing election through legal means NOT sedition

But when sugar farmers demonstrated and destroyed the properties of sugar barons

sedition

Persons liable for sedition:

leader of the sedition, and

other persons participating in the sedition

The objective of the law in criminalizing sedition is to put a limit to the

freedom of expression or the right of the people to assemble and petition the
government for redress of grievance.

The demonstrations conducted or held by the citizenry to protest certain

policies of the government is not a crime. But when the protest in manifested
in the form of rallies where the participants, in order to attain their objective
of overcoming the will of the government, resort to force or violence, the
mantle of protection guaranteed under the Constitution to express their
dissent peacefully, shall cease to exist, as in the meantime, the participants
have encroached or stayed in the domain or realm of criminal law.

Article 141.
39

Conspiracy to Commit Sedition

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

There is no proposal to commit sedition.

The conspiracy must be to prevent the promulgation or execution of any law

or the holding of any popular election. It may also be a conspiracy to prevent
national and local public officials from freely exercising their duties and
functions, or to prevent the execution of an administrative order.

Article 142

INCITING TO SEDITION

ELEMENTS:

That the offender does not take a direct part in the crime of sedition

That he incites others to the accomplishment of any of the acts which constitute sedition (134)

That the inciting is done by means of speeches, proclamations, writing, emblems, cartoons,
banners, or other representations tending to the same end (purpose: cause commotion not
exactly against the government; actual disturbance not necessary)

Different acts of inciting to sedition:

Inciting others to the accomplishment of any of the acts which constitute sedition by
means of speeches, proclamations, writings, emblems etc.
Uttering seditious words or speeches which tend to disturb the public peace or writing,
publishing, or circulating scurrilous [vulgar, mean, libelous] libels against the government
or any of the duly constituted authorities thereof, which tend to disturb the public peace

Knowingly concealing such evil practices

When punishable:

when they tend to disturb or obstruct any lawful officer in executing the functions of his
office; or

when they tend to instigate others to cabal and meet together for unlawful purposes; or

when they suggest or incite rebellious conspiracies or riots; or

when they lead or tend to stir up the people against the lawful authorities or to disturb
the peace of the community, the safety and order of the government

Only non-participant in sedition may be liable.

40

Inciting to sedition is an element of sedition. It cannot be treated as a

separate offense against one who is a part of a group that rose up publicly
and tumultuously and fought the forces of government.

Considering that the objective of sedition is to express protest against the government and in the
process creating hate against public officers, any act that will generate hatred against the
government or a public officer concerned or a social class may amount to Inciting to sedition.

Article 142 is, therefore, quite broad.

The mere meeting for the purpose of discussing hatred against the government is inciting to
sedition. Lambasting government officials to discredit the government is Inciting to sedition. But if
the objective of such preparatory actions is the overthrow of the government, the crime is inciting
to rebellion.

CRIMES AGAINST POPULAR REPRESENTATION

Article 143

ACTS TENDING TO PREVENT THE MEETING OF CONGRESS AND SIMILAR

BODIES

ELEMENTS:

That there be a projected or actual meeting of Congress or any of its committees or

subcommittees, constitutional commissions or committees or division thereof, or of any
provincial board or city or municipal council or board

That the offender who may be any persons prevents such meeting by force or fraud

The crime is against popular representation because it is directed against

officers whose primary function is to meet and enact laws. When these
legislative bodies are prevented from meeting and performing their duties,
the system of government is disturbed. The three branches of government
must continue to exist and perform their duties.

Chief of Police and mayor who prevented the meeting of the municipal council are liable
under Art 143, when the defect of the meeting is not manifest and requires an
investigation before its existence can be determined.

Article 144

DISTURBANCE OF PROCEEDINGS

ELEMENTS:

That there be a meeting of Congress or any of its committees, constitutional commissions or

committees or divisions thereof, or of any provincial board or city or municipal council or
board

That the offender does any of the following acts

He disturbs any of such meetings

He behaves while in the presence of any such bodies in such a manner as to interrupt its
proceedings or to impair the respect due it
41

The disturbance can be in the form of utterances, speeches or any form of

expressing dissent which is not done peacefully but implemented in such a
way that it substantially interrupts the meeting of the assembly or adversely
affects the respect due to the assembly of its members.

Complaint must be filed by member of the Legislative body. Accused may also be
punished for contempt.

Article 145

VIOLATION OF PARLIAMENTARY IMMUNITY

Acts punishable:

By using force, intimidation, threats, or frauds to prevent any member of

Congress from

attending the meeting of the assembly or any of its committees, constitutional

commissions or committees or divisions thereof, or from

expressing his opinions or

casting his vote

By arresting or searching any member thereof while Congress is in a regular or

special session, except in case such member has committed a crime punishable
under the code by a penalty higher than prision mayor ( 6 years up )

Elements:

That the offender is a public officer or employee

That he arrests or searches any member of Congress

That Congress, at the time of arrest or search, is in a regular or special session

That the member searched has not committed a crime punishable under the code by a penalty
higher than prision mayor (1987 constitution: privilege from arrest while congress in
session in all offenses punishable by not more than 6 years imprisonment).

Under Section 11, Article VI of the Constitution, a public officer who arrests a member of

Congress who has committed a crime punishable by prision mayor (six years and one day, to 12
years) is not liable Article 145.

According to Reyes, to be consistent with the Constitution, the phrase "by a penalty higher than
prision mayor" in Article 145 should be amended to read: "by the penalty of prision mayor or
higher."

The offender is any person and the offended party who is a member of
Congress, has not committed any crime to justify the use of force, threat,
intimidation or fraud to prevent him from attending the meeting of Congress.
42

ILLEGAL ASSEMBLIES AND ASSOCIATIONS

Article 146

ILLEGAL ASSEMBLIES

Two (2) Types of illegal assemblies:

Meeting of the first form

Meeting, gathering or group of persons whether in a fixed place or moving

purpose : to commit any of crimes punishable under the code

meeting attended by armed persons

Meeting of the second form

Meeting, gathering or group of persons whether in a fixed place or moving

Audience whether armed or not, is incited to the commission of the crime of treason,
rebellion or insurrection, sedition or direct assault.

Not all the persons present at the meeting of the first form of illegal assembly must be
armed

Persons liable for illegal assembly

the organizers or leaders of the meeting

persons merely present at the meeting (except when presence is out of curiosity
 not liable)

Responsibility of persons merely present at the meeting

if they are not armed, penalty is arresto mayor

if they carry arms, like bolos or knives, or licensed firearms, penalty is prision
correccional

Presumptions if person present at the meeting carries an unlicensed firearm:

purpose of the meeting is to commit acts punishable under the RPC

considered as leader or organizer of the meeting

Those who incite the audience, by means of speeches, printed matters, and
other representation, to commit treason, rebellion or insurrection, sedition or
assault a person in authority, shall be deemed leaders or organizers of said
meeting.
43

The gravamen of the offense is mere assembly of or gathering of people for illegal purpose
punishable by the Revised Penal Code. Without gathering, there is no illegal assembly. If unlawful
purpose is a crime under a special law, there is no illegal assembly. For example, the gathering of
drug pushers to facilitate drug trafficking is not illegal assembly because the purpose is not
violative of the Revised Penal Code but of The Dangerous Drugs Act of 1972, as amended, which
is a special law.

Two forms of illegal assembly

No attendance of armed men, but persons in the meeting are incited to commit treason, rebellion
or insurrection, sedition or assault upon a person in authority. When the illegal purpose of the
gathering is to incite people to commit the crimes mentioned above, the presence of armed men
is unnecessary. The mere gathering for the purpose is sufficient to bring about the crime already.

Armed men attending the gathering If the illegal purpose is other than those mentioned above,
the presence of armed men during the gathering brings about the crime of illegal assembly.

Example: Persons conspiring to rob a bank were arrested. Some were with firearms.

Liable for illegal assembly, not for conspiracy, but for gathering with armed men.

Distinction between illegal assembly and illegal association

In illegal assembly, the basis of liability is the gathering for an illegal purpose which constitutes a
crime under the Revised Penal Code.

In illegal association, the basis is the formation of or organization of an association to engage in

an unlawful purpose which is not limited to a violation of the Revised Penal Code. It includes a
violation of a special law or those against public morals. Meaning of public morals: inimical to
public welfare; it has nothing to do with decency., not acts of obscenity.

Article 147

ILLEGAL ASSOCIATIONS

ELEMENTS:
Organized totally or partially for the purpose of committing any of the crimes in RPC

Or

For some purpose contrary to public morals

Persons liable:

founders, directors and president of the association

mere members of the association

Illegal Assembly (146)

Illegal Association (147)

Must be an actual meeting of armed

No need for such

persons to commit any of the crimes

punishable under the RPC, or of individuals

who, although not armed, are incited to the

commission of treason, rebellion, sedition

or assault upon a person in authority of his

agent.

It is the meeting and the attendance at such

Act of forming or organizing and

that are punished

membership in the association

Persons liable: leaders and those present

Founders, directors, president and

members
44

Public morals refers to crimes punished under Title Six of the Revised Penal
Code, namely, gambling, grave scandal, prostitution and vagrancy.

ASSAULT, RESISTANCE AND DISOBEDIENCE

Article 148

DIRECT ASSAULT

ELEMENTS OF THE 1ST FORM OF DIRECT ASSAULT

That the offender employs force or intimidation.

That the aim of the offender is to attain any of the purposes of the crime of rebellion or any of
the objects of the crimes of sedition. (victim need not be person in authority)

That there is no public uprising.

Example of the first form of direct assault:

Three men broke into a National Food Authority warehouse and lamented sufferings of the
people. They called on people to help themselves to all the rice. They did not even help
themselves to a single grain.

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

ELEMENTS OF THE 2ND FORM OF DIRECT ASSAULT:

That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or
(d) makes a serious resistance.

That the person assaulted is a person in authority or his agent.

That at the time of the assault the person in authority or his agent (a) is engaged in the actual
performance of official duties (motive is not essential), or that he is assaulted

(b) by reason of the past performance of official duties (motive is essential).

That the offender knows that the one he is assaulting is a person in authority or his agent in
the exercise of his duties (with intention to offend, injure or assault).

That there is no public uprising.

Crime of direct assault can only be committed by means of dolo. It cannot be

committed by culpa.

Always complexed with the material consequence of the act (e.g. direct assault with
murder) except if resulting in a light felony, in which case, the consequence is absorbed

The crime is not based on the material consequence of the unlawful act. The crime of direct
assault punishes the spirit of lawlessness and the contempt or hatred for the authority or the rule
of law.
45

To be specific, if a judge was killed while he was holding a session, the killing is not the direct
assault, but murder. There could be direct assault if the offender killed the judge simply because
the judge is so strict in the fulfillment of his duty. It is the spirit of hate which is the essence of direct
assault.

So, where the spirit is present, it is always complexed with the material consequence of the
unlawful act. If the unlawful act was murder or homicide committed under circumstance of
lawlessness or contempt of authority, the crime would be direct assault with murder or homicide, as
the case may be. In the example of the judge who was killed, the crime is direct assault with
murder or homicide.

The only time when it is not complexed is when material consequence is a light felony, that is,
slight physical injury. Direct assault absorbs the lighter felony; the crime of direct assault can not
be separated from the material result of the act. So, if an offender who is charged with direct
assault and in another court for the slight physical Injury which is part of the act, acquittal or
conviction in one is a bar to the prosecution in the other.

Hitting the policeman on the chest with fist is not direct assault because if done
against an agent of a person in authority, the force employed must be of serious character

The force employed need not be serious when the offended party is a person in
authority (ex. Laying of hands)

The intimidation or resistance must be serious whether the offended party is an

agent only or a person in authority (ex. Pointing a gun)

Force Employed

Intimidation/Resistance

Person in Authority

Need not be serious

Serious
Agent

Must be of serious character

Serious

Person in authority: any person directly vested with jurisdiction (power or

authority to govern and execute the laws) whether as an individual or as a member of
some court or governmental corporation, board or commission

A barangay captain is a person in authority, so is a Division Superintendent of

schools, President of Sanitary Division and a teacher

In applying the provisions of Articles 148 and 151, teachers, professors, and persons charged with
the supervision of public or duly recognized private schools, colleges and universities and lawyers
in the actual performance of their duties or on the occasion of such performance, shall be deemed
a person in authority.

Agent: is one who, by direct provision of law or by election or by appointment by

competent authority, is charged with the maintenance of public order and the protection
and security of life and property. (Example. Barrio councilman and any person who comes
to the aid of the person in authority, policeman, municipal treasurer, postmaster, sheriff,
agents of the BIR, Malacaang confidential agent)

Even when the person in authority or the agent agrees to fight, still direct assault.

When the person in authority or the agent provoked/attacked first, innocent party is
entitled to defend himself and cannot be held liable for assault or resistance nor for
physical injuries, because he acts in legitimate self-defense
46

The offended party in assault must not be the aggressor. If there is unlawful
aggression employed by the public officer, any form of resistance which may
be in the nature of force against him will be considered as an act of legitimate
defense. (People vs.

Hernandez, 59 Phil. 343)

There can be no assault upon or disobedience to one authority by another when they
both contend that they were in the exercise of their respective duties.

The offender and the offended party are both public officers. The Supreme
Court said that assault may still be committed, as in fact the offender is even
subjected to a greater penalty (U.S. vs. Vallejo, 11 Phil. 193).

When assault is made by reason of the performance of his duty there is no need for
actual performance of his official duty when attacked

In direct assault of the first form, the stature of the offended person is immaterial. The crime is
manifested by the spirit of lawlessness.

In the second form, you have to distinguish a situation where a person in authority or his agent
was attacked while performing official functions, from a situation when he is not performing such
functions.

If attack was done during the exercise of official functions, the crime is always direct assault.

It is enough that the offender knew that the person in authority was performing an official function
whatever may be the reason for the attack, although what may have happened was a purely
private affair.

On the other hand, if the person in authority or the agent was killed when no longer performing
official functions, the crime may simply be the material consequence of he unlawful act: murder
or homicide. For the crime to be direct assault, the attack must be by reason of his official
function in the past. Motive becomes important in this respect. Example, if a judge was killed
while resisting the taking of his watch, there is no direct assault.
In the second form of direct assault, it is also important that the offended knew that the person he
is attacking is a person in authority or an agent of a person in authority, performing his official
functions. No knowledge, no lawlessness or contempt.

For example, if two persons were quarreling and a policeman in civilian clothes comes and stops
them, but one of the protagonists stabs the policeman, there would be no direct assault unless
the offender knew that he is a policeman.

In this respect it is enough that the offender should know that the offended party was exercising
some form of authority. It is not necessary that the offender knows what is meant by person in
authority or an agent of one because ignorantia legis non excusat.

Circumstances qualifying the offense (Qualified Assault):

when the assault is committed with a weapon

when the offender is a public officer or employee

when the offender lays hand upon a person in authority

Complex crime of direct assault with homicide or murder, or with serious physical
injuries.
47

If the crime of direct assault is committed with the use of force and it resulted
in the infliction of slight physical injuries, the latter shall not be considered as
a separate offense. It shall be absorbed by the greater crime of direct assault.
(People vs. Acierto, 57

Phil. 614)

Direct assault cannot be committed during rebellion.

May direct assault be committed upon a private individual? Yes. When a private person
comes to the aid of a person in authority, and he is likewise assaulted. Under
Republic

Act No. 1978,

a private person who comes to the aid of a person in authority is by fiction of

law deemed or is considered an agent of a person in authority.

Article 149

INDIRECT ASSAULT

ELEMENTS:

That a person in authority or his agent is the victim of any of the forms of direct assault
defined in ART. 148.

That a person comes to the aid of such authority or his agent.

That the offender makes use of force or intimidation upon such person coming to the aid of
the authority or his agent.
Indirect assault can be committed only when a direct assault is also
committed

To be indirect assault, the person who should be aided is the agent (not the person
in authority because it is already direct assault, the person coming to the aid of the
person in authority being considered as an agent and an attack on the latter is already
direct assault). Example. Aiding a policeman under attack.

The victim in indirect assault should be a private person who comes in aid of an agent of a
person in authority. The assault is upon a person who comes in aid of the agent of a person in
authority. The victim cannot be the person in authority or his agent.

Take note that under Article 152, as amended, when any person comes in aid of a person in
authority, said person at that moment is no longer a civilian he is constituted as an agent of the
person in authority. If such person were the one attacked, the crime would be direct assault

Article 150

DISOBEDIENCE TO SUMMONS

Acts punishable:

refusing without legal excuse to obey summons

refusing to be sworn or placed under affirmation

refusing to answer any legal inquiry to produce books, records etc.

restraining another from attending as witness in such body

48

e. inducing disobedience to a summons or refusal to be sworn

The act punished is refusal, without legal excuse, to obey summons issued by
the House of Representatives or the Senate. If a Constitutional Commission is
created, it shall enjoy the same privilege.

The exercise by the legislature of its contempt power is a matter of self-

preservation, independent of the judicial branch. The contempt power of the
legislature is inherent and sui generis.

The power to punish is not extended to the local executive bodies. The reason
given is that local legislative bodies are but a creation of law and therefore, for
them to exercise the power of contempt, there must be an express grant of
the same.

Article 151

RESISTANCE/DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENT

OF SUCH PERSON (par. 1)

ELEMENTS:

That a person in authority or his agent is engaged in the performance of official duty or gives a
lawful order to the offender.

That the offender resists or seriously disobeys such person in authority or his agent.

That the act of the offender is not included in the provisions of arts. 148, 149 and 150.
SIMPLE DISOBEDIENCE (par. 2)

ELEMENTS:

That an agent of a person in authority is engaged in the performance of official duty gives a
lawful order to the offender.

That the offender disobeys such agent of a person in authority.

That such disobedience is not of a serious nature.

US vs. Ramayrat, 22 Phil. 183

The Supreme Court held that: the

violation does not refer to resistance or disobedience to the legal provisions of

the law, nor to judicial decisions defining or declaring the rights and
obligations of the parties for the same give reliefs only in the form of civil
actions. Rather, the disobedience or resistance is to the orders directly issued
by the authorities in the exercise of their official duties.

Direct Assault (148)

Resistant and Disobedience to a Person

in Authority or Agents of such Person

(151)

PIA or his agent must be engaged in the

PIA or his agent must be in the actual

performance of official duties or that he

performance of his duties.

49

is assaulted

Direct assault is committed in 4 ways

Committed by resisting or seriously

by attacking, employing force, and

disobeying a PIA or his agent.

seriously resisting a PIA or his agent.

Use of force against an agent of PIA

Use of force against an agent of a PIA is not

must be serious and deliberate.

so serious; no manifest intention to defy the

law and the officers enforcing it.

In both resistance against an agent of a person in authority and direct assault by resisting an agent
of a person in authority, there is force employed, but the use of force in resistance is not so
serious, as there is no manifest intention to defy the law and the officers enforcing it.

The attack or employment of force which gives rise to the crime of direct assault must be serious
and deliberate; otherwise, even a case of simple resistance to an arrest, which always requires the
use of force of some kind, would constitute direct assault and the lesser offense of resistance or
disobedience in Article 151 would entirely disappear.

But when the one resisted is a person in authority, the use of any kind or degree of force will give
rise to direct assault.
If no force is employed by the offender in resisting or disobeying a person in authority, the crime
committed is resistance or serious disobedience under the first paragraph of Article 151.

Article 152

PERSONS IN AUTHORITY/AGENTS OF PERSONS IN AUTHORITY:

Persons in Authority any person directly vested with jurisdiction, whether as an

individual or as a member of some court or governmental corporation, board or
commission.

Examples of Persons in Authority :

Barangay captain

Barangay chairman

Municipal mayor

Provincial fiscal

Justice of the peace

Municipal councilor

Teachers

Professors

Persons charged with the supervision of public or duly recognized private schools,
colleges and universities

Lawyers in the actual performance of their professional duties or on the occasion of such
performance
Agent of Person in Authority any person who, by direct provision of law or by election
or by appointment by competent authority, is charged with the maintenance of public
order and the protection and security of life and property.

Examples of agents of PIA :

Barrio councilman

Barrio policeman

Barangay leader

Any person who comes to the aid of persons in authority

50

Section 388 of the Local Govt Code provides that for purposes of the RPC, the punong
barangay, sangguniang barangay members and members of the lupong tagapamayapa
in each barangay shall be deemed as persons in authority in their jurisdictions, while
other barangay officials and members who may be designated by law or ordinance and
charged with the maintenance of public order, protection and the security of life,
property, or the maintenance of a desirable and balanced environment, and any
barangay member who comes to the aid of persons in authority shall be deemed
AGENT of persons in authority.

When the offended party is a person in authority and while being assaulted, a
private individual comes to his rescue, such private individual, by operation
of law, mutates mutandis becomes an agent of a person in authority. Any
assault committed against such person is direct assault, and not indirect
assault. But if the person assaulted is an agent of a person in authority, and a
private individual comes to his rescue and is himself assaulted while giving
the assistance, as earlier discussed, the crime committed is indirect assault.

CRIMES AGAINST PUBLIC DISORDERS

Article 153

TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER

TYPES:

Causing any serious disturbance in a public place, office or establishment

Interrupting or disturbing public performances, functions, gatherings or peaceful meetings, if

the act is not included in Art 131 and 132 (Public Officers interrupting peaceful meetings or
religious worship).

Making any outcry tending to incite rebellion or sedition in any meeting, association or public
place
Displaying placards or emblems which provoke a disturbance of public order in such place

Burying with pomp the body of a person who has been legally executed.

If the act of disturbing or interrupting a meeting or religious ceremony is NOT committed

by public officers, or if committed by public officers who are not participants therein, this
article applies. Art 131 and 132 punishes the same acts if committed by public officers
who are NOT participants in the meeting

The outcry is merely a public disorder if it is an unconscious outburst which, although

rebellious or seditious in nature, is not intentionally calculated to induce others to commit
rebellion or sedition, otherwise, its inciting to rebellion or sedition.

This article should be distinguished from inciting to rebellion or sedition

as discussed under Article 138 and 142. In the former, the meeting is
legal and peaceful. It becomes unlawful only because of the outcry
made, which tends to incite rebellion or sedition in the meeting. In the
latter case, the meeting is unlawful from the beginning and the
utterances made are deliberately
51

articulated to incite others to rise publicly and rebel against the

government. What makes it inciting to rebellion or sedition is the act of
inciting the audience to commit rebellion or sedition.

Tumultuous if caused by more than 3 persons who are armed or provided with means
of violence (circumstance qualifying the disturbance/interruption)

tumultuous in character

The essence is creating public disorder. This crime is brought about by creating serious
disturbances in public places, public buildings, and even in private places where public functions
or performances are being held.

For a crime to be under this article, it must not fall under Articles 131 (prohibition, interruption,
and dissolution of peaceful meetings) and 132 (interruption of religious worship).

In the act of making outcry during speech tending to incite rebellion or sedition, the situation must
be distinguished from inciting to sedition or rebellion.

If the speaker, even before he delivered his speech, already had the criminal intent to incite the
listeners to rise to sedition, the crime would be inciting to sedition. However, if the offender had
no such criminal intent, but in the course of his speech, tempers went high and so the speaker
started inciting the audience to rise in sedition against the government, the crime is disturbance
of the public order.

The disturbance of the pubic order is tumultuous and the penalty is increased if it is brought
about by armed men. The term armed does not refer to firearms but includes even big stones
capable of causing grave injury.

It is also disturbance of the public order if a convict legally put to death is buried with pomp. He
should not be made out as a martyr; it might incite others to hatred.

The crime of disturbance of public order may be committed in a public or

private place. If committed in a private place, the law is violated only where
the disturbance is made while a public function or performance is going on.
Without a public gathering in a private place, the crime cannot be committed.
Article 154

UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL

UTTERANCES

TYPES:

Publishing or causing to be published, by means of printing, lithography or any other means

of publication as news any false news which may endanger the public order, or cause damage
to the interest or credit of the State.

Encouraging disobedience to the law or to the constituted authorities or by praising, justifying

or extolling any act punished by law, by the same means or by words, utterances or speeches

Maliciously publishing or causing to be published any official resolution or document without

proper authority, or before they have been published officially
52

Printing, publishing or distributing or (causing the same) books, pamphlets, periodicals or

leaflets which do not bear the real printers name or which are classified as anonymous.

The purpose of the law is to punish the spreading of false information which
tends to cause panic, confusion, distrust and divide people in their loyalty to
the duly constituted authorities.

Actual public disorder or actual damage to the credit of the State is not necessary.

Republic Act No. 248 prohibits the reprinting, reproduction or republication of government
publications and official documents without previous authority

The article also punishes any person who knowingly publishes official acts or
documents which are not officially promulgated.

Article 155

ALARMS AND SCANDALS

TYPES:

Discharging any firearm, rocket, firecracker, or other explosive within any town or public
place, calculated to cause alarm or danger

Instigating or taking active part in any charivari or other disorderly meeting offensive to
another or prejudicial to public tranquility

Disturbing the public peace while wandering about at night or while engaged in any other
nocturnal amusement
Causing any disturbance or scandal in public places while intoxicated or otherwise, provided
the act is not covered by Art 153 (tumult).

Understand the nature of the crime of alarms and scandals as one that disturbs public

tranquility or public peace. If the annoyance is intended for a particular person, the crime is unjust
vexation.

Charivari mock serenade or discordant noises made with kettles, tin horns etc,
designed to deride, insult or annoy

When a person discharges a firearm in public, the act may constitute any of the possible
crimes under the Revised Penal Code:

Alarms and scandals if the firearm when discharged was not directed to any particular person;

Illegal discharge of firearm under Article 254 if the firearm is directed or pointed to a particular
person when discharged but intent to kill is absent;

Attempted homicide, murder, or parricide if the firearm when discharged is directed against a
person and intent to kill is present.

In this connection, understand that it is not necessary that the offended party be wounded or hit.

Mere discharge of firearm towards another with intent to kill already amounts to attempted
homicide or attempted murder or attempted parricide. It can not be frustrated because the
offended party is not mortally wounded.
53

In Araneta v. Court of Appeals, it was held that if a person is shot at and is wounded, the crime is
automatically attempted homicide. Intent to kill is inherent in the use of the deadly weapon.

(4) Grave Threats If the weapon is not discharged but merely pointed to another

Other Light Threats If drawn in a quarrel but not in self defense

What governs is the result, not the intent

CRIME

Nature of Crime

Who are Liable

Tumults

and

other

Crime against Public Order

Private

persons,

Disturbances (153)
outsider

Alarms and Scandals (155)

Crime against Public Order

Private

persons,

outsider

Article 156

DELIVERING PRISONERS FROM JAILS

ELEMENTS :

That there is a person confined in a jail or penal establishment.

That the offender removes therefor such person, or helps the escape of such person (if the
escapee is serving final judgement, he is guilty of evasion of sentence).

Offender is a private individual

Prisoner may be detention prisoner or one sentenced by virtue of a final judgment

Even if the prisoner is in the hospital or asylum or any place for detention of prisoner, as long as he
is classified as a prisoner, that is, a formal complaint or information has been filed in court, and he
has been officially categorized as a prisoner, this article applies, as such place is considered
extension of the penal institution.

A policeman assigned to the city jail as guard who while off-duty released a prisoner is
liable here

Even if the prisoner returned to the jail after several hours, the one who removed him from jail is
liable.

It may be committed through negligence

Circumstances qualifying the offense is committed by means of violence, intimidation

or bribery.

Mitigating circumstance if it takes place outside the penal establishment by taking the
guards by surprise
54

correlate the crime of delivering person from jail with infidelity in the custody of prisoners
punished under Articles 223, 224 and 225 of the Revised Penal Code. In both acts, the offender
may be a public officer or a private citizen.

Do not think that infidelity in the custody of prisoners can only be committed by a public officer
and delivering persons from jail can only be committed by private person. Both crimes may be
committed by public officers as well as private persons.

In both crimes, the person involved may be a convict or a mere detention prisoner.

The only point of distinction between the two crimes lies on whether the offender is the custodian
of the prisoner or not at the time the prisoner was made to escape.

If the offender is the custodian at that time, the crime is infidelity in the custody of prisoners.

But if the offender is not the custodian of the prisoner at that time, even though he is a public
officer, the crime he committed is delivering prisoners from jail.

Liability of the prisoner or detainee who escaped When these crimes are committed,
whether infidelity in the custody of prisoners or delivering prisoners from jail, the prisoner so
escaping may also have criminal liability and this is so if the prisoner is a convict serving
sentence by final judgment. The crime of evasion of service of sentence is committed by the
prisoner who escapes if such prisoner is a convict serving sentence by final judgment.

If the prisoner who escapes is only a detention prisoner, he does not incur liability from escaping
if he does not know of the plan to remove him from jail. But if such prisoner knows of the plot to
remove him from jail and cooperates therein by escaping, he himself becomes liable for delivering
prisoners from jail as a principal by indispensable cooperation.

If three persons are involved a stranger, the custodian and the prisoner three crimes are
committed:

Infidelity in the custody of prisoners;

Delivery of the prisoner from jail; and

Evasion of service of sentence.

It is possible that several crimes may be committed in one set of
facts. For instance, assuming that Pedro, the jail warden, agreed with Juan to
allow Maria to escape by not locking the gate of the city jail. Provided that
Juan comes across with P5,000.00 pesos as bribe money. The arrangement
was not known to Maria but when she noticed the unlocked gate of the city
jail she took advantage of the situation and escaped. From the facts given,
there is no question that Pedro, as the jail warden, is liable for the crime of
infidelity in the custody of the prisoner. He will also be able for the crime of
bribery. Juan will be liable for the crime of delivering a prisoner from jail and
for corruption of public official under Art. 212. If Maria is a sentenced
prisoner, she will be liable for evasion of service of sentence under Article
157. if she is a detention prisoner, she commits no crime.

EVASION OF SENTENCE OR SERVICE

Evasion of service of sentence has three forms:

(1) By simply leaving or escaping from the penal establishment under Article 157;
55

Failure to return within 48 hours after having left the penal establishment because of a calamity,
conflagration or mutiny and such calamity, conflagration or mutiny has been announced as
already passed under Article 158;

Violating the condition of conditional pardon under Article 159.

Article 157

EVASION OF SERVICE OF SENTENCE

ELEMENTS :

That the offender is a convict by final judgment.

That he is serving his sentence which consists in deprivation of liberty (destierro included)

That he evades the service of his sentence by escaping during the term if his sentence. (fact of
return immaterial).

By the very nature of the crime, it cannot be committed when the prisoner
involved is merely a detention prisoner. But it applies to persons convicted by
final judgment with a penalty of destierro.

A detention prisoner even if he escapes from confinement has no criminal liability. Thus, escaping
from his prison cell when his case is still on appeal does not make said prisoner liable for Evasion
of Service of Sentence.

In leaving or escaping from jail or prison, that the prisoner immediately returned is immaterial.
It is enough that he left the penal establishment by escaping therefrom. His voluntary return may
only be mitigating, being analogous to voluntary surrender. But the same will not absolve his
criminal liability.

A continuing offense.

Offenders not minor delinquents nor detention prisoners

If escaped within the 15 day appeal period no evasion

No applicable to deportation as the sentence

The crime of evasion of service of sentence may be committed even if the sentence is destierro,
and this is committed if the convict sentenced to destierro will enter the prohibited places or come
within the prohibited radius of 25 kilometers to such places as stated in the judgment.

If the sentence violated is destierro, the penalty upon the convict is to be served by way of
destierro also, not imprisonment. This is so because the penalty for the evasion can not be more
severe than the penalty evaded.

Circumstances qualifying the offense (done thru):

unlawful entry (by scaling)

breaking doors, windows, gates, walls, roofs or floors

56

using picklocks, false keys, disguise, deceit, violence or intimidation

connivance with other convicts or employees of the penal institution

A, a foreigner, was found guilty of violation of the law, and was ordered by the court to be
deported. Later on, he returned to the Philippines in violation of the sentence. Held: He is not
guilty of Evasion of Service of Sentence as the law is not applicable to offenses executed by
deportation. (U.S. vs. Loo Hoe, 36 Phil. 867).

Article 158

EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF

DISORDERS, CONFLAGRATIONS, EARTHQUAKES OR OTHER
CALAMITIES

ELEMENTS :

That the offender is a convict by final judgement who is confined in a penal institution.

That there is disorder, resulting from- 1. conflagration,

earthquake, or

explosion, or

similar catastrophe, or

5. mutiny , not participated.

That the offender evades the service of his sentence by leaving the penal institution where he is
confined, on the occasion of such disorder or during the mutiny.

That the offender fails to give himself up to the authorities within 48 hours following the
issuance of a proclamation by the chief executive announcing the passing away of such
calamity.

The leaving from the penal establishment is not the basis of criminal liability. It is the failure to
return within 48 hours after the passing of the calamity, conflagration or mutiny had been
announced. Under Article 158, those who return within 48 hours are given credit or deduction
from the remaining period of their sentence equivalent to 1/5 of the original term of the sentence.
But if the prisoner fails to return within said 48 hours, an added penalty, also 1/5, shall be
imposed but the 1/5 penalty is based on the remaining period of the sentence, not on the original
sentence. In no case shall that penalty exceed six months.

Offender must escape to be entitled to allowance

Those who did not leave the penal establishment are not entitled to the 1/5 credit. Only those
who left and returned within the 48-hour period.

For such event to be considered as a calamity, the President must declared it

to be so. He must issue a proclamation to the effect that the calamity is over.
Even if the events herein mentioned may be considered as calamity, there is
a need for the Chief Executive to make such announcement. Absent such
declaration. Even if the prisoner will return to the penal institution where he
was confined, the same is of no moment as in the meantime he has
committed a violation of the law, not under the present article but for pure
evasion of service of sentence under Article 157.

Mutiny organized unlawful resistance to a superior officer, a sedition, a revolt

57

The mutiny referred to in the second form of evasion of service of sentence does not include riot.
The mutiny referred to here involves subordinate personnel rising against the supervisor within the
penal establishment. One who escapes during a riot will be subject to Article 157, that is, simply
leaving or escaping the penal establishment.

Disarming the guards is not mutiny

Violation attributed to the accused is no longer referred to the court for

judicial inquiry or resolution. The law has provided sufficient guidelines for
the jail warden to follow.

This disquisition will not apply if the offender who escapes taking advantage
of the calamities enumerated herein is apprehended by the authorities after
48 hours from the declaration that the calamity is over. It is only extended to
one who returns but made inside the 48 hours delimited by the proclamation.
At this stage, the violation is not substantive but administrative in nature.

Article 159

VIOLATION OF CONDITIONAL PARDON

ELEMENTS:

That the offender was a convict.

That he was granted a conditional pardon by the chief executive.

That he violated any of the conditions of such pardon.

Condition extends to special laws violation of illegal voting

The condition imposed upon the prisoner not to be guilty of another crime is not limited to those
punishable under the Revised Penal Code. It includes those punished under Special Law. (People
vs. Corral, 74 Phil. 357).

In violation of conditional pardon, as a rule, the violation will amount to this crime only if the
condition is violated during the remaining period of the sentence.

If the condition of the pardon is violated, the remedy against the accused
may be in the form of prosecution under Article 159. it may also be an
administrative action by referring the violation to the court of origin and
praying for the issuance of a warrant of arrest justified under Section 64 of
the Revised Administrative Code.

The administrative liability of the convict under the conditional pardon is different and has nothing
to do with his criminal liability for the evasion of service of sentence in the event that the condition
of the pardon has been violated. Exception: where the violation of the condition of the pardon will
constitute evasion of service of sentence, even though committed beyond the remaining period of
the sentence. This is when the conditional pardon expressly so provides or the language of the
conditional pardon clearly shows the intention to make the condition perpetual even beyond the
unserved portion of the sentence. In such case, the convict may be required to serve the
unserved portion of the sentence even though the violation has taken place when the sentence
has already lapsed.

Offender must have been found guilty of the subsequent offense before he can be
prosecuted under this Article. But if under Revised Admin Code, no conviction
necessary. President has power to arrest, reincarnate offender without trial
58

Article 159 is a distinct felony. It is a substantive crime. For one to suffer the
consequence of its violation, the prisoner must be formally charged in court.
He will be entitled to a full blown hearing, in full enjoyment of his right to due
process. Only after a final judgment has been rendered against him may he
suffer the penalty prescribed under Article 159 (Torres vs. Gonzales, et al., 152 SCRA
292)

VIOLATION OF PARDON

ORDINARY EVASION

Infringement of conditions/terms of

To evade the penalty given by the courts

President

disturbs the public order

Two penalties provided:

prision correccional in its minimum period if the penalty remitted does not exceed 6
years

the unexpired portion of his original sentence if the penalty remitted is higher than 6
years

COMMISSION OF ANOTHER CRIME

Article 160

COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY

IMPOSED FOR ANOTHER PREVIOUS OFFENSE-PENALTY: (quasi-recidivism)

ELEMENTS

That the offender was already convicted by final judgement of one offense.

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

Quasi-recidivism : a person after having been convicted by final judgement shall commit
a new felony before beginning to serve such sentence, or while serving the same.

Second crimes must belong to the RPC, not special laws. First crime may be either from
the RPC or special laws

Reiteracion: offender shall have served out his sentence for the prior offense

A quasi-recidivist may be pardoned at age 70. Except: Unworthy or Habitual Delinquent

If new felony is evasion of sentence offender is not a quasi-recidivist

Penalty: maximum period of the penalty for the new felony should be imposed

Quasi-recidivism is a special aggravating circumstance which directs the court

to impose the maximum period of the penalty prescribed by law for the new
felony. The court will do away or will ignore mitigating and aggravating
circumstances in considering the penalty to be imposed. There will be no
occasion for the court to consider imposing the minimum, medium or
maximum period of the penalty. The mandate is absolute and is justified by
the finding that the accused is suffering from some degree of moral perversity
if not total incorrigibility. (People vs. Alicia, et al., 95 SCRA 227)
59

Quasi-recidivism is an aggravating circumstance which cannot be offset by

any mitigating circumstance. To be appreciated as a special aggravating
circumstance, it must be alleged in the information. (People vs. Bautista, 65 SCRA
460)

Quasi-Recidivism may be offset by a special privileged mitigating circumstance (ex.

Minority)

TITLE FOUR

CRIMES AGAINST PUBLIC INTEREST

Crimes against public interest

Counterfeiting the great seal of the Government of the Philippines (Art. 161);

Using forged signature or counterfeiting seal or stamp (Art. 162);

Making and importing and uttering false coins (Art. 163);

Mutilation of coins, importation and uttering of mutilated coins (Art. 164);

Selling of false or mutilated coins, without connivance (Art. 165);

Forging treasury or bank notes or other documents payable to bearer, importing and
uttering of such false or forged notes and documents (Art. 166);

Counterfeiting, importing and uttering instruments not payable to bearer (Art. 167);

Illegal possession and use of forged treasury or bank notes and other instruments of
credit (Art. 168);
Falsification of legislative documents (Art. 170);

Falsification by public officer, employee or notary (Art. 171);

Falsification by private individuals and use of falsified documents (Art. 172);

Falsification of wireless, cable, telegraph and telephone messages and use of said
falsified messages (Art. 173);

False medical certificates, false certificates of merit or service (Art. 174);

Using false certificates (Art. 175);

Manufacturing and possession of instruments or implements for falsification (Art. 176);

Usurpation of authority or official functions (Art. 177);

Using fictitious name and concealing true name (Art. 178);

Illegal use of uniforms or insignia (Art. 179);

False testimony against a defendant (Art. 180);

60

False testimony favorable to the defendant (Art. 181);

False testimony in civil cases (Art. 182);

False testimony in other cases and perjury (Art. 183);

Offering false testimony in evidence (Art. 184);

Machinations in public auction (Art. 185);

Monopolies and combinations in restraint of trade (Art. 186);

Importation and disposition of falsely marked articles or merchandise made of gold,

silver, or other precious metals or their alloys (Art. 187);

Substituting and altering trade marks and trade names or service marks (Art. 188);

Unfair competition and fraudulent registration of trade mark or trade name, or service
mark; fraudulent designation of origin, and false description (Art. 189).

The crimes in this title are in the nature of fraud or falsity to the public. The essence of the crime
under this title is that which defraud the public in general. There is deceit perpetrated upon the
public. This is the act that is being punished under this title.

Article 161

COUNTERFEITING GREAT SEAL OF GOVERNMENT

TYPES:

Forging the great seal of the Government

Forging the signature of the President

Forging the stamp of the President

When the signature of the President is forged, it is not falsification but forging of
signature under this article

Signature must be forged, others signed it not the President.

Article 162

USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP

ELEMENTS:

That the great seal of the republic was counterfeited or the signature or stamp of the chief
executive was forged by another person.

That the offender knew of the counterfeiting or forgery.

That he used the counterfeit seal or forged signature or stamp.

61

Offender is NOT the forger/not the cause of the counterfeiting

Article 163

MAKING AND IMPORTING AND UTTERING FALSE COINS

ELEMENTS :

That there be false or counterfeited coins (need not be legal tender).

That the offender either made, imported or uttered such coins.

That in case of uttering such false or counterfeited coins, he connives with counterfeiters or
importers.

Coin is counterfeit if it is forged, or if it is not an article of the government as legal

tender, regardless if it is of no value

Kinds of coins the counterfeiting of which is punished

Silver coins of the Philippines or coins of the Central Bank of the Philippines;

Coins of the minor coinage of the Philippines or of the Central Bank of the Philippines;

Coin of the currency of a foreign country.

Counterfeiting imitation of legal or genuine coin (may contain more silver, different
design) such as to deceive an ordinary person in believing it to be genuine
Utter to pass counterfeited coins, deliver or give away

Import to bring to port the same

Both Philippine and foreign state coins

Applies also to coins withdrawn from circulation

Essence of article: making of coins without authority

Acts punished

Mutilating coins of the legal currency, with the further requirements that there be intent to damage
or to defraud another;

Importing or uttering such mutilated coins, with the further requirement that there must be
connivances with the mutilator or importer in case of uttering.

The first acts of falsification or falsity are

Counterfeiting refers to money or currency;

Forgery refers to instruments of credit and obligations and securities issued by the Philippine
government or any banking institution authorized by the Philippine government to issue the same;

Falsification can only be committed in respect of documents.

62

In so far as coins in circulation are concerned, there are two crimes that may be committed:

Counterfeiting coins -- This is the crime of remaking or manufacturing without any authority to
do so.

In the crime of counterfeiting, the law is not concerned with the fraud upon the public such that
even though the coin is no longer legal tender, the act of imitating or manufacturing the coin of
the government is penalized. In punishing the crime of counterfeiting, the law wants to prevent
people from trying their ingenuity in their imitation of the manufacture of money.

Mutilation of coins -- This refers to the deliberate act of diminishing the proper metal contents of
the coin either by scraping, scratching or filling the edges of the coin and the offender gathers the
metal dust that has been scraped from the coin.

Requisites of mutilation under the Revised Penal Code

Coin mutilated is of legal tender;

Offender gains from the precious metal dust abstracted from the coin; and

It has to be a coin.

There is no expertise involved here. In mutilation of coins under the Revised Penal Code, the
offender does nothing but to scrape, pile or cut the coin and collect the dust and, thus,
diminishing the intrinsic value of the coin.

Mutilation of coins is a crime only if the coin mutilated is legal tender. If it is not legal tender
anymore, no one will accept it, so nobody will be defrauded. But if the coin is of legal tender, and
the offender minimizes or decreases the precious metal dust content of the coin, the crime of
mutilation is committed.

The offender must deliberately reduce the precious metal in the coin. Deliberate intent arises only
when the offender collects the precious metal dust from the mutilated coin. If the offender does
not collect such dust, intent to mutilate is absent, but Presidential Decree No. 247 will apply.
Article 164

MULTILATION OF COINS IMPORTATION AND UTTERANCE:

This has been repealed by PD 247. (Defacement, Mutilation, Tearing, Burning or

Destroying Central Bank Notes and Coins)

Under this PD, the acts punishable are:

willful defacement

mutilation

tearing

burning

destruction of Central Bank notes and coins

Mutilation to take off part of the metal either by filling it or substituting it for another
metal of inferior quality, to diminish by inferior means (to diminish metal contents).

Foreign notes and coins not included. Must be legal tender.

63

Must be intention to mutilate.

Mutilation under the Revised Penal Code is true only to coins. It cannot be a crime under the

Revised Penal Code to mutilate paper bills because the idea of mutilation under the code is
collecting the precious metal dust. However, under Presidential Decree No. 247, mutilation is not
limited to coins.

Questions & Answers

1. The people playing cara y cruz, before they throw the coin in the air would rub the money to
the sidewalk thereby diminishing the intrinsic value of the coin. Is the crime of mutilation
committed?

Mutilation, under the Revised Penal Code, is not committed because they do not collect the
precious metal content that is being scraped from the coin. However, this will amount to violation
of Presidential Decree No. 247.

2. When the image of Jose Rizal on a five-peso bill is transformed into that of

Randy Santiago, is there a violation of Presidential Decree No. 247?

Yes. Presidential Decree No. 247 is violated by such act.

4. An old woman who was a cigarette vendor in Quiapo refused to accept one-centavo coins for
payment of the vendee of cigarettes he purchased. Then came the police who advised her that
she has no right to refuse since the coins are of legal tender. On this, the old woman accepted in
her hands the one-centavo coins and then threw it to the face of the vendee and the police. Was
the old woman guilty of violating Presidential Decree No. 247?

She was guilty of violating Presidential Decree No. 247 because if no one ever picks up the
coins, her act would result in the diminution of the coin in circulation.
5. A certain customer in a restaurant wanted to show off and used a P 20.00 bill to light his
cigarette. Was he guilty of violating Presidential Decree No. 247?

He was guilty of arrested for violating of Presidential Decree No. 247. Anyone who is in
possession of defaced money is the one who is the violator of Presidential Decree No. 247. The
intention of Presidential Decree No. 247 is not to punish the act of defrauding the public but what
is being punished is the act of destruction of money issued by the Central Bank of the
Philippines.

Note that persons making bracelets out of some coins violate Presidential Decree No. 247.

The primary purpose of Presidential Decree No. 247 at the time it was ordained was to stop the
practice of people writing at the back or on the edges of the paper bills, such as "wanted: pen
pal".

So, if the act of mutilating coins does not involve gathering dust like playing cara y cruz, that is
not mutilation under the Revised Penal Code because the offender does not collect the metal
dust. But by rubbing the coins on the sidewalk, he also defaces and destroys the coin and that is
punishable under Presidential Decree No. 247.

Article 165

SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE

2 Types
64

Possession of coin, counterfeited or mutilated by another person, with intent to

utter the same, knowing that it is false or mutilated.

ELEMENTS:

possession

with intent to utter, and

knowledge

Actually uttering such false or mutilated coin, knowing the same to be false or
mutilated.

ELEMENTS:

actually uttering, and

knowledge.

Possession does not require legal tender in foreign coins

Includes constructive possession

On counterfeiting coins, it is immaterial whether the coin is legal tender or

not because the intention of the law is to put an end to the practice of
imitating money and to discourage anyone who might entertain the idea of
imitating money (People vs. Kong

Leon).
Article 166

FORGING TREASURY OR BANK NOTES IMPORTING AND UTTERING

Acts punishable:

Forging or falsity of treasury/bank notes or documents payable to bearer

Importing of such notes

Uttering of such false or forged obligations and notes in connivance with forgers and
importers

Forging by giving a treasury or bank note or document payable to bearer/order an

appearance of a true and genuine document

Falsification by erasing, substituting, counterfeiting or altering by any means the

figures and letters, words, signs contained therein

E.g. falsifying lotto or sweepstakes ticket. Attempted estafa through falsification of an

obligation or security of the Phil

PNB checks not included here its falsification of commercial document under

Article 172
65

Obligation or security includes: bonds, certificate of indebtedness, bills, national bank

notes, coupons, treasury notes, certificate of deposits, checks, drafts for money,
sweepstakes money

If the falsification is done on a document that is classified as a government

security, then the crime is punished under Article 166. On the other hand, if it
is not a government security, then the offender may either have violated
Article 171 or 172.

Article 167

COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT

PAYABLE TO BEARER

ELEMENTS :

That there be an instrument payable to order or other document of credit not payable to bearer.

That the offender either forged, imported or uttered such instruments.

That in case of uttering, he connived with the forger or importer.

Article 168

ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES

AND OTHER INSTRUMENT OF CREDIT

ELEMENTS:
That any treasury or bank note or certificate or other obligation and security payable to bearer,
or any instrument payable to order or other document of credit not payable to bearer is forged
or falsified by another person.

That the offender knows that any of those instruments is forged or falsified.

That he performs any of these acts

using any of such forged or falsified instrument, or

possessing with intent to use any of such forged or falsified instrument.

Act sought to be punished: Knowingly possessing with intent to use any of such forged
treasury or bank notes

Article 169

FORGERY

How forgery is committed:

by giving to a treasury or bank note or any instrument payable to bearer or to order, the
appearance of a true and genuine document

by erasing, substituting, counterfeiting, altering by any means the figures, letters or words, or
signs contained therein.

if all acts done but genuine appearance is not given, the crime is frustrated
66

Forgery under the Revised Penal Code applies to papers, which are in the form of obligations
and securities issued by the Philippine government as its own obligations, which is given the
same status as legal tender. Generally, the word counterfeiting is not used when it comes to
notes; what is used is forgery. Counterfeiting refers to money, whether coins or bills.

Notice that mere change on a document does not amount to this crime. The essence of forgery is
giving a document the appearance of a true and genuine document. Not any alteration of a letter,
number, figure or design would amount to forgery. At most, it would only be frustrated forgery.

When what is being counterfeited is obligation or securities, which under the Revised Penal Code
is given a status of money or legal tender, the crime committed is forgery.

Questions & Answers

1. Instead of the peso sign (P), somebody replaced it with a dollar sign ($). Was the crime of
forgery committed?

No. Forgery was not committed. The forged instrument and currency note must be given the
appearance of a true and genuine document. The crime committed is a violation of Presidential
Decree No. 247. Where the currency note, obligation or security has been changed to make it
appear as one which it purports to be as genuine, the crime is forgery. In checks or commercial
documents, this crime is committed when the figures or words are changed which materially
alters the document.

2. An old man, in his desire to earn something, scraped a digit in a losing sweepstakes ticket, cut
out a digit from another ticket and pasted it there to match the series of digits corresponding to
the winning sweepstakes ticket. He presented this ticket to the Philippine Charity Sweepstakes
Office. But the alteration is so crude that even a child can notice that the supposed digit is merely
superimposed on the digit that was scraped. Was the old man guilty of forgery?

NO Because of the impossibility of deceiving whoever would be the person to whom that ticket is
presented, the Supreme Court ruled that what was committed was an impossible crime. Note,
however, that the decision has been criticized. In a case like this, the Supreme Court of Spain
ruled that the crime is frustrated. Where the alteration is such that nobody would be deceived,
one could easily see that it is a forgery, the crime is frustrated because he has done all the acts of
execution which would bring about the felonious consequence but nevertheless did not result in a
consummation for reasons independent of his will.

3. A person has a twenty-peso bill. He applied toothache drops on one side of the bill. He has a
mimeograph paper similar in texture to that of the currency note and placed it on top of the
twenty-peso bill and put some weight on top of the paper. After sometime, he removed it and the
printing on the twenty-peso bill was reproduced on the mimeo paper. He took the reverse side of
the P20 bill, applied toothache drops and reversed the mimeo paper and pressed it to the paper.
After sometime, he removed it and it was reproduced. He cut it out, scraped it a little and went to
a sari-sari store trying to buy a cigarette with that bill. What he overlooked was that, when he
placed the bill, the printing was inverted. He was apprehended and was prosecuted and
convicted of forgery. Was the crime of forgery committed?

The Supreme Court ruled that it was only frustrated forgery because although the offender has
performed all the acts of execution, it is not possible because by simply looking at the forged
document, it could be seen that it is not genuine. It can only be a consummated forgery if the
document which purports to be genuine is given the appearance of a true and genuine document.
Otherwise, it is at most frustrated.

Five classes of falsification:

67

Falsification of legislative documents;

Falsification of a document by a public officer, employee or notary public;

Falsification of a public or official, or commercial documents by a private individual;

Falsification of a private document by any person;

Falsification of wireless, telegraph and telephone messages.

The crime of falsification must involve a writing that is a document in the legal sense. The writing
must be complete in itself and capable of extinguishing an obligation or creating rights or capable
of becoming evidence of the facts stated therein. Until and unless the writing has attained this
quality, it will not be considered as document in the legal sense and, therefore, the crime of
falsification cannot be committed in respect thereto.

Distinction between falsification and forgery:

Falsification is the commission of any of the eight acts mentioned in Article 171 on legislative
(only the act of making alteration), public or official, commercial, or private documents, or
wireless, or telegraph messages.

The term forgery as used in Article 169 refers to the falsification and counterfeiting of treasury or
bank notes or any instruments payable to bearer or to order.

Note that forging and falsification are crimes under Forgeries.

Article 170

FALSIFICATION OF LEGISLATIVE DOCUMENTS

ELEMENTS :

That these be a bill, resolution or ordinance enacted or approved or pending approval by the
national assembly or any provincial board or municipal council.

That the offender (any person) alters the same.

That he has no proper authority therefor.

That the alteration has changed the meaning of the document.

The words "municipal council" should include the city council or municipal board Reyes.

Accused must not be a public official entrusted with the custody or possession of such
document otherwise Art 171 applies .

The falsification must be committed on a genuine, true and authentic

legislative document. If committed on a simulated, spurious or fabricated
legislative document, the crime is not punished under this article but under
Article 171 or 172.

Article 171

FALSIFICATION OF DOCUMENTS BY PUBLIC OFFICER, EMPLOYEE, OR

NOTARY OR ECCLESTASTICAL MINISTER
68

ELEMENTS:

That the offender is a public officer, employee, or notary public.

That he takes advantage of his official position.

That he falsifies a document by committing any of the following acts:

Counterfeiting or imitating any handwriting, signature or rubric.

Requisites:

That there be an intent to imitate, or an attempt to imitate

That the two signatures or handwritings, the genuine and the forged, bear some
resemblance, to each other

(lack of similitude/imitation of a genuine signature will not be a ground for conviction

under par. 1 but such is not an impediment to conviction under par. 2)

Causing it to appear that persons have participated in any act or proceeding when they did not
in fact so participate.

Attributing to persons who have participated in an act or proceeding statements other than
those in fact made by them.

Requisites:

That the offender caused it to appear in a document that a person/s participated in an

act or a proceeding; and

That such person/s did not in fact so participate in the act or proceeding
Making untruthful statements in a narration of facts;

Requisites:

That the offender makes in a document statements in a narration of facts

That he has a legal obligation to disclose the truth of the facts narrated by him; (required
by law to be done) and

That the facts narrated by the offender are absolutely false; and

That the perversion or truth in the narration of facts was made with the wrongful intent of
injuring a third person

There must be a narration of facts, not a conclusion of law. Must be on a material matter

For one to be held criminally liable for falsification under paragraph 4, the
untruthful statement must be such as to effect the integrity of the document
or to change the effects which it would otherwise produce.
69

Legal obligation means that there is a law requiring the disclosure of the truth of the facts
narrated. Ex. Residence certificates

The person making the narration of facts must be aware of the falsity of the facts
narrated by him. This kind of falsification may be committed by omission

Altering true dates.

date must be essential

For falsification to take place under this paragraph, the date of the document
must be material to the right created or to the obligation that is extinguished.

Making any alteration or intercalation in a genuine document which changes its meaning.

Requisites:

That there be an alteration (change) or intercalation (insertion) on a document

That it was made on a genuine document

That the alteration/intercalation has changed the meaning of the document

That the change made the document speak something false.

Issuing in an authenticated form a document purporting to be a copy of an original document

when no such original exists, or including in such copy a statement contrary to, or different
from, that of the genuine original; (if no knowledge, falsification through negligence) or

The acts of falsification mentioned in this paragraph are committed by a

public officer or by a notary public who takes advantage of his official position
as custodian of the document. It can also refer to a public officer or notary
who prepared and retained a copy of the document. The falsification can be
done in two ways. It can be a certification purporting to show that the
document issued is a copy of the original on record when no such original
exists. It can also be in the form of a certification to the effect that the
document on file contains statements or including in the copy issued, entries
which are not found on contrary to, or different from the original genuine
document on file.

Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or
official book. (genuine document)

In case the offender is an ecclesiastical minister, the act of falsification is committed with
respect to any record or document of such character that its falsification may affect the
civil status of persons.

There is no crime of attempted or frustrated falsification of public document

Alteration or changes to make the document speak the truth do not

constitute falsification. (US vs. Mateo, 25 Phil. 324)
70

Persons liable public officer, employee or notary public or ecclesiastical minister

Either he has duty to intervene in the preparation of the document or it may

be a situation wherein the public officer has official custody of the document.

So even if the offender is a public officer, if her causes the falsification of a

document which is not in his official custody or if the falsification committed
by him is not related whatsoever to the performance of his duties, he will still
be liable for falsification but definitely not under this Article but under Article
172. (falsification of documents by a private person)

Document: Any written instrument which establishes a right or by which an

obligation is extinguished. A deed or agreement executed by a person setting
forth any disposition or condition wherein rights and obligations may arise.

Writing may be on anything as long as it is a product of the handwriting, it is considered a

document.

Not necessary that what is falsified is a genuine or real document, enough that it gives
an appearance of a genuine article

As long as any of the acts of falsification is committed, whether the document is genuine or not,
the crime of falsification may be committed. Even totally false documents may be falsified.

Counterfeiting imitating any handwriting, signature or rubric

Feigning simulating a signature, handwriting, or rubric out of one of which does not in
fact exist

It does not require that the writing be genuine. Even if the writing was through and through false,
if it appears to be genuine, the crime of falsification is nevertheless committed.

There are four kinds of documents:

Public document in the execution of which, a person in authority or notary public has taken part;

Official document in the execution of which a public official takes part;

Commercial document or any document recognized by the Code of Commerce or any

commercial law; and

Private document in the execution of which only private individuals take part.

Public document is broader than the term official document. Before a document may be
considered official, it must first be a public document. But not all public documents are official
documents. To become an official document, there must be a law which requires a public officer
to issue or to render such document. Example: A cashier is required to issue an official receipt for
the amount he receives. The official receipt is a public document which is an official document.

Liability of a private individual in falsification by a public officer when there is conspiracy.

71

Under Republic Act 7975, when a public officer who holds a position classified
as Grade 27 or higher, commits a crime in relation to the performance of his
official functions, the case against him will fall under the jurisdiction of the
Sandiganbayan. If a private person is included in the accusation because of
the existence of conspiracy in the commission of the crime, the
Sandiganbayan shall maintain jurisdiction over the person of the co-accused,
notwithstanding the fact that said co-accused is a private individual. If the
public officer is found guilty, the same liability and penalty shall be imposed
on the private individual. (U.S. vs. Ponce, 20 Phil. 379)

Article 172

FALSIFICATION OF PUBLIC, OFFICIAL, OR COMMERCIAL DOCUMENT BY

A PRIVATE INDIVIDUAL (par 1)

ELEMENTS

That the offender is a private individual or a public officer or employee who did not take
advantage of his official position.

That he committed any of the acts of falsification enumerated in ART. 171.

Counterfeiting or imitating any handwriting, signature or rubric.

Causing it to appear that persons have participated in any act or proceeding when they did not
in fact so participated.

Attributing to persons who have participated in an act or proceeding statements other than
those in fact made by them.

Making untruthful statements in a narration of facts;

Altering true dates.

Making any alteration or intercalation in a genuine document which changes its meaning.

That the falsification was committed in any public or official or commercial document.

Under this paragraph, damage is not essential, it is presumed

If the falsification of public, official or commercial documents, whether they

be public official or by private individuals, it is not necessary that there be
present the idea of gain or the intent to injure a third person. What is
punished under the law is the violation of public faith and the perversion of
the truth as solemnly proclaimed by the nature of the document. (Sarep vs.
Sandiganbayan)

Defense: lack of malice or criminal intent

The following writings are public:

the written acts or records of acts of the sovereign authority of official bodies and
tribunals, and of the public officers, legislative, judicial and executive, whether of the
Philippines or of a foreign country.

Public records kept in the Philippines.

72

Examples of commercial documents warehouse receipts, airway bills, bank checks,

cash files, deposit slips and bank statements, journals, books, ledgers, drafts, letters of
credit and other negotiable instruments

There is a complex crime of estafa through falsification of public,

official or commercial document. In the crime of estafa, damage or intent
to cause damage is not an element. It is sufficient that the offender
committed or performed the acts of falsification as defined and punished
under Article 171. The two offenses can co-exist as they have distinct
elements peculiar to their nature as a crime. When the falsification is
committed because it is necessary to commit estafa, what we have is a
complex crime defined and punished under Article 48 of the Revised Penal
Code.

There is a complex crime of falsification of pubic documents through

reckless imprudence.

Cash disbursement vouchers or receipts evidencing payments are not commercial

documents

A mere blank form of an official document is not in itself a document

The possessor of falsified document is presumed to be the author of the falsification

FALSIFICATION UNDER PARAGRAPH 2 OF ART. 172. OF PRIVATE

DOCUMENT

ELEMENTS :
That the offender committed any of the acts of falsification, except those in paragraph 7 and 8,
enumerated in art. 171.

That the falsification was committed in any private document (must affect the truth or
integrity of the document)

That the falsification caused damage (essential element; hence, no crime of estafa thru
falsification of private document) to a third party or at least the falsification was committed
with intent to cause such damage.

Not necessary that the offender profited or hoped to profit from the falsification

Falsification of a private document is consummated when such document is

actually falsified with the intent to prejudice a third person whether such
falsified document is or is not thereafter put to illegal use for which it is
intended. (Lopez vs. Paras, 36 Phil. 146)

What is emphasized at this point is the element of falsification of private

document.

There must be intent to cause damage or damage is actually caused. The

intention is therefore must be malicious or there is deliberate intent to
commit a wrong. Reckless imprudence is incompatible with malicious intent.

Falsification is not a continuing offense

73

There is no falsification through reckless imprudence if the document is a

private document.

Falsification by omission

Mere falsification of a private document is not enough to commit crime under

paragraph 2 of Article 172. Two acts must be done by the offender. 1) He
must have performed in the private document the falsification contemplated
under Article 171. 2) He must have performed an independent act which
operates to cause damage or prejudice to a third person. The third person
mentioned herein may include the government. Damage is not limited to
money or pecuniary prejudice. Damage to ones honor, reputation or good
name is included.

A document falsified as a necessary means to commit another crime must be public,

official or commercial

There is no complex crime of estafa through falsification of a private document because

the immediate effect of the latter is the same as that of estafa

If a private document is falsified to cause damage to the offended party, the

crime committed is falsification of a private document. Remember that in
estafa, damage or intent to cause damage is an indispensable element of the
crime. The same element is necessary to commit the crime of falsification of
private document. Since they have a common element, such element cannot
be divided into the two parts and considered as two separate offenses.

There is no complex crime of estafa with falsification because deceit is a common

element of both. One and the same deceit or damage cannot give rise to more than one
crime. It is either estafa or falsification.

Criteria to determine whether the crime is estafa only or falsification

only :

IF the falsification of the private document was essential in the commission of

estafa because the falsification, estafa cannot be committed, the crime is
falsification; estafa becomes the consequence of the crime.
IF the estafa can be committed even without resorting to falsification, the
latter being resorted only to facilitate estafa, the main crime is estafa;
falsification is merely incidental, since even without falsification, estafa can
be committed.

If the estafa was already consummated at the time of the falsification of a private
document was committed for the purpose of concealing the estafa, the falsification is not
punishable, because as regards the falsification of the private document there was no
damage or intent to cause damage.

A private document which is falsified to obtain money from offended party is

a falsification of private document only.

A private document may acquire the character of a public document when it becomes
part of an official record and is certified by a public officer duly authorized by law
74

The crime is falsification of public documents even if falsification took place before the
private document becomes part of the public records

Examples:

An employee of a private company who punches the bundy clock on behalf on

a co-employee is guilty of falsification of a private document.

One who will take the civil service examination for another and makes it appear
that he is the examinee is guilty of falsification of a public document.

USE OF FALSIFIED DOCUMENT (par. 3, art. 172)

ELEMENTS:

Introducing in a judicial proceeding:

That the offender knew that a document was falsified by another person.

That the false document is embraced in art. 171 or in any subdivisions nos. 1 and 2 of art. 172.

That he introduced said document in evidence in any judicial proceeding. (intent to cause
damage not necessary)

Use in any other transaction:

That the offender knew that a document was falsified by another person.

That the false document is embraced in art. 171 or in any of subdivisions nos. 1 and 2 of art. 172.

That he used such documents (not in judicial proceedings).

That the use of the documents caused damage to another or at least was used with intent to cause
such damage.

The user of the falsified document is deemed the author of falsification, if:

the use is so closely connected in time with the falsification

the user had the capacity of falsifying the document

Falsification of Private Documents

Falsification of Public/Official Documents

Prejudice to third party is an element

Prejudice to third persons is immaterial, what is

of the offense.

punished is the violation of public faith and

perversion of truth which the document

proclaims.

Rules to observe in the use of a falsified document.

It is a crime when knowingly introduced in a judicial proceeding even if there is

not intent to cause damage to another. Knowingly introducing a falsified
document in a judicial proceeding, the use alone is not a crime. The mere
introduction of the forged document is the crime itself. But when the falsified
document is knowingly introduced in an administrative proceeding, the use
alone is not a crime. There must be intent to cause damage or damage is
actually inflicted.
75

Falsification of document is a separate and distinct offense from that of the

use of falsified documents. So if the falsification of document was done or
performed because it was necessary to the use of the same and in the
commission of the crime, then we may have a complex crime defined and
punished under Article 48 of the Revised Penal Code.

Good faith is a defense in falsification of public document.

Article 173

FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH, AND TELEPHONE

MESSAGES, AND USE OF SAID FALSIFIED MESSAGES

Acts punishable:

Uttering fictitious, wireless, telegraph or telephone message

Requisites:

That the offender is an officer or employee of the government or an officer or employee

of a private corporation, engaged in the service of sending or receiving wireless, cable or
telephone message.

That the accused commits any of the following acts:

uttering fictitious wireless, cable, telegraph, or telephone message, or

falsifying wireless, cable, telegraph, or telephone message

Falsifying wireless, telegraph or telephone message

Requisites:
That the offender is an officer or employee of the government or an officer or employee
of a private corporation, engaged in the service of sending or receiving wireless, cable or
telephone message.

That the accused commits any of the following acts:

uttering fictitious wireless, cable, telegraph, or telephone message, or

falsifying wireless, cable, telegraph, or telephone message

Using such falsified message

Requisites:

That the accused knew that wireless, cable, telegraph, or telephone message was
falsified by any of the person specified in the first paragraph of art. 173.

That the accused used such falsified dispatch.

That the use of the falsified dispatch resulted in the prejudice of a third party, or that the
use thereof was with intent to cause such prejudice.

The public officer, to be liable must be engaged in the service of sending or receiving
wireless, cable and telegraph or telephone message

Article 174

FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFCATES OF MERIT OR

SERVICE AND THE LIKE:

Persons liable:
76

Physician or surgeon who, in connection with the practice of his profession, issued a
false certificate (note: such certificate must refer to the illness or injury of a person)

Public officer who issued a false certificate of merit of service, good conduct or similar
circumstances

Private individual who falsified a certificate under (1) and (2)

Article 175

USING FALSE CERTIFICATES

ELEMENTS:

That a physician or surgeon has issued a false medical certificate, or a public officer has
issued a false certificate of merit or service, good conduct, or similar circumstances, or a
private person had falsified any of said certificates.

That the offender knew that the certificate was false.

That he used the same.

Article 176

MANUFACTURING AND POSSESSION OF INTRUMENTS OR IMPLEMENTS

FOR FALSIFICATION:

Acts punishable:

Making or introducing into the Philippines any stamps, dies or marks or other instruments or
implements for counterfeiting or falsification
Possessing with intent to use the instruments or implements for counterfeiting or falsification
made in or introduced into the Philippines by another person

The implement confiscated need not form a complete set

Constructive possession is also punished

OTHER FALSITIES

Article 177

USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS:

2 ways of committing the crime:

By knowingly and falsely representing oneself to be an officer, agent or

representative of any department or agency of the Philippine govt or any foreign
govt.

By performing an act pertaining to any person in authority or public officer of the

Phil govt or foreign govt under the pretense of such official position, and without
being lawfully entitled to do so.
77

In usurpation of authority: The mere act of knowingly and falsely representing oneself
is sufficient. Not necessary that he performs an act pertaining to a public officer.

Elements

Offender knowingly and falsely represents himself;

As an officer, agent or representative of any department or agency of the Philippine

government or of any foreign government.

In usurpation of official functions: It is essential that the offender should have

performed an act pertaining to a person in authority

Elements

Offender performs any act;

Pertaining to any person in authority or public officer of the Philippine government or any
foreign government, or any agency thereof;

Under pretense of official position;

Without being lawfully entitled to do so.

A public officer may also be an offender

The act performed without being lawfully entitled to do so must pertain:

to the govt

to any person in authority

to any public office

Foreign government adverted to in this article refers to public officers duly

authorized to perform governmental duties in the Philippines. The law cannot
refer to other foreign governments as its application may bring us to legal
problems which may infringe on constitutional boundaries.

If the offender commits the acts of usurpation as contemplated herein, and

he does it because he is a rebel and pursuant to the crime of rebellion or
insurrection or sedition, he will not be liable under this article because what is
attributed against him as a crime of usurpation is in fact one of the elements
of committing rebellion.

The elements of false pretense is necessary to commit the crime of

usurpation of official function.

Article 178

USING FICTITIOUS NAME AND CONCEALING TRUE NAME

ELEMENTS (using fictitious name) :

That the offender uses a name other than his real name.

That he uses that fictitious name publicly.

78

That the purpose of the offender is

To conceal a crime,

To evade the execution of a judgment, or

To cause damage to public interest. (ex. Signing fictitious name for a passport)

The name of a person is what appears in his birth certificate. The name of a
person refers to his first name, surname, and maternal name. Any other name
which a person publicly applies to himself without authority of law is a
fictitious name.

ELEMENTS (concealing true name):

that the offender conceals

his true name, and

all other personal circumstances.

that the purpose is only to conceal his identity.

What the offender does to violate or commit this act is for him to conceal his
true name and other personal circumstances. His only motive in doing so is to
conceal his identity. In concealment of true name, the deception is done
momentarily, just enough to conceal the name of the offender. In the use of
fictitious name, the offender presents himself before the public with another
name.
A person under investigation by the police who gives a false name and false
personal circumstances, upon being interrogated, is guilty of this crime.

Use of Fictitious Name (178)

Concealing True Name (178)

Element of publicity must be present

Publicity not necessary

Purpose is to conceal a crime, to evade the

Purpose is to conceal identity

execution of a judgement, or to cause damage

Commonwealth Act No. 142 (Regulating the Use of Aliases)

No person shall use any name different from the one with which he was registered at birth in the
office of the local civil registry, or with which he was registered in the bureau of immigration upon
entry; or such substitute name as may have been authorized by a competent court.

Exception: Pseudonym solely for literary, cinema, television, radio, or other entertainment and in
athletic events where the use of pseudonym is a normally accepted practice.

Article 179

ILLEGAL USE OF UNIFORM OR INSIGNIA

ELEMENTS:

That the offender makes use of insignia, uniform or dress.

That the insignia, uniform or dress pertains to an office not held by the offender or to a class of
persons of which he is not a member.

That said insignia, uniform or dress is used publicly and improperly.

79

The wearing of a uniform, or insignia of a non-existing office or establishment

is not a crime. It is necessary that the uniform or insignia represents an office
which carries authority, respect, dignity, or influence which the public looks
up to.

So also, an exact imitation of a uniform or dress is unnecessary; a colorable resemblance

calculated to deceive the common run of people is sufficient.

The wearing of insignia, badge or emblem of rank of the members of the

armed forced of the Philippines or constabulary (now PNP) is punished by
Republic Act No. 493.

When the uniform or insignia is used to emphasize the pageantry of a play or

drama or in moving picture films, the crime is not committed.

Three forms of false testimony

False testimony in criminal cases under Article 180 and 181;

False testimony in civil case under Article 182;

False testimony in other cases under Article 183.

False testimony, defined

It is the declaration under oath of a witness in a judicial proceeding which is

contrary to what is true, or to deny the same, or to alter essentially the truth.

Nature of the crime of false testimony.

It cannot be committed through reckless imprudence because false testimony

requires criminal intent or intent to violate the law is an essential element of
the crime.
If the false testimony is due to honest mistake or error or there was good
faith in making the false testimony, no crime is committed.

Article 180

FALSE TESTIMONY AGAINST A DEFENDANT

ELEMENTS:

That there be a criminal proceeding.

That the offender testifies falsely under oath against the defendant therein.

That the offender who gives false testimony knows that it is false.

That the defendant against whom the false testimony is given is either acquitted or convicted in
a final judgment (prescriptive period starts at this point)

Requires criminal intent, cant be committed through negligence. Need not impute guilt
upon the accused

The defendant must at least be sentenced to a correctional penalty or a fine or must

have been acquitted

The witness who gave false testimony is liable even if the court did not consider his
testimony

The probative value of the testimonial evidence is subject to the rules of

evidence. It may not be considered at all by the judge. But whether the
testimony is credible or not
80

or whether it is appreciated or not in the context that the false witness

wanted it to be, the crime of false testimony is still committed, since it is
punished not because of the effect it produces, but because of its tendency to
favor the accused. (People vs. Reyes)

Penalty is dependent upon sentence imposed on the defendant

Article 181

FALSE TESTIMONY IN FAVOR OF DEFENDANT in a criminal case:

Elements:

A person gives false testimony;

In favor of the defendant;

In a criminal case.

False testimony by negative statement is in favor of the defendant

False testimony need not in fact benefit the defendant

A statement of a mere opinion is not punishable

Conviction or acquittal is not necessary (final judgement is not necessary). The false
testimony need not influence the acquittal

A defendant who voluntarily goes up on the witness stand and falsely imputes the
offense to another person the commission of the offense is liable under this article. If he
merely denies the commission of the offense, he is not liable.
Basis of penalty: gravity of the felony charged against the defendant

Article 182

FALSE TESTIMONY IN CIVIL CASES

ELEMENTS:

That the testimony must be given in a civil case.

That the testimony must relate to the issues presented in said case.

That the testimony must be false.

That the false testimony must be given by the defendant knowing the same to be false.

That the testimony must be malicious and given with an intent to affect the issues presented in
the said case

Not applicable when testimony given in a special proceeding (in this case, the crime is
perjury)

Basis of penalty: amount involved in the civil case

81

Distinctions between perjury and false testimony:

PERJURY

FALSE TESTIMONY

1.

Non-judicial proceedings.

1.

Given in a judicial proceeding.

2.

Statement or testimony is required by

2.

Testimony need not be required by law.

law.

3.
Amount involved is not material.

3.

Amount involved in civil cases is

material.

4. immaterial whether statement or

4.

It is always material in criminal cases.

testimony is favorable or not to the

accused.

Article183

FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN

AFFIRMATION

ELEMENTS:

That an accused made a statement under oath or made an affidavit upon a material matter.
That the statement or affidavit was made before a competent officer, authorized to receive and
administer oath.

That in that statement or affidavit, the accused made a willful and deliberate assertion of a
falsehood, and

That the sworn statement or affidavit containing the falsity is required by law.

2 ways of committing perjury:

by falsely testifying under oath

by making a false statement

Subornation of perjury: procures another to swear falsely.

Solemn affirmation: refers to non-judicial proceedings and affidavits

A false affidavit to a criminal complaint may give rise to perjury

Two contradictory sworn statements are not sufficient to convict the affiant for
the crime of perjury. There must be evidence to show which is false. The same
must be established or proved from sources other than the two contradictory
statements. (People vs. Capistrano, 40 Phil. 902)

A matter is material when it is directed to prove a fact in issue

The test of materiality is whether a false statement can influence the court
(People vs.

Bnazil).

A competent person authorized to administer an oath means a person who has a

right to inquire into the questions presented to him upon matters under his jurisdiction
82

There is no perjury if the accused signed and swore the statement before a
person not authorized to administer oath (People vs. Bella David).

There is no perjury through negligence or imprudence since the assertion of falsehood

must be willful and deliberate

Because of the nature of perjury, which is the willful and corrupt assertion of
a falsehood, there is no perjury committed through reckless imprudence or
simple negligence under Article 365. Since admittedly perjury can only be
committed by means of dolo, then good faith or lack of malice is a good
defense when one is indicted for the crime of perjury.

Even if there is no law requiring the statement to be made under oath, as long as it is
made for a legal purpose, it is sufficient

If there is no requirement of law to place the statement or testimony under oath, there is no
Perjury considering the phrases oath in cases in which the law so requires in Article 183.

The affidavit or sworn statement must be required by law like affidavit of adverse
claim to protect ones interest on real property; or an affidavit of good moral
character to take the bar examination. So if the affidavit was made but the same
is not required by law, even if the allegations are false, the crime of perjury is not
committed. (Diaz vs. People,

191 SCRA 86)

Perjury is an offense which covers false oaths other than those taken in the course of
judicial proceedings

False testimony before the justice of the peace during the P.I. may give rise to the crime
of perjury because false testimony in judicial proceedings contemplates an actual trial
where a judgment of conviction or acquittal is rendered
A person who knowingly and willfully procures another to swear falsely commits
subornation of perjury and the witness suborned does testify under circumstances
rendering him guilty of perjury.

The false testimony is not in a judicial proceeding

False testimony vs. Perjury

When one testifies falsely before the court, the crime committed is false
testimony. If one testifies falsely in a non-judicial proceeding, the crime
committed is perjury. In false testimony, it is not required that the offender
asserts a falsehood on a material matter. It is enough that he testifies falsely
with deliberate intent. In perjury, the witness must testify or assert a fact on
a material matter with a full knowledge that the information given is
essentially contrary to the truth. Material matter means the main fact which
is the subject or object of the inquiry.

Article 184

OFFERING FALSE TESTIMONY IN EVIDENCE

ELEMENTS:

a That the offender offered in evidence a false witness or false testimony.

83

That he knew the witness or the testimony was false.

That the offer was made in a judicial or official proceeding.

The false witness need not be convicted of false testimony. The mere offer is sufficient.

The offender in this article knows that the witness to be presented is a false
witness or that the witness will lie while testifying. The proceedings is either
judicial or official. There is a formal offer of testimonial evidence in the
proceedings. The witness is able to testify and the offender, knowing the
testimony is given by the witness to be false, nevertheless offers the same in
evidence. In this case, the person offering the false testimony must have
nothing to do in the making of the false testimony. He knows that the witness
is false and yet he asks him to testify and thereafter offers the testimony in
evidence. So if the offeror, aside from being such, is also the person
responsible in inducing or convincing the false witness to lie, Article 184 will
not apply. The applicable article will be Article 180, 181, 182, or 183 as the
case may be. The offenders in this case will be charged with perjury; the
inducer as principal by inducement and the induced party as the principal by
direct participation.

It is for this reason that subornation of perjury is no longer treated as a

specific felony with a separate article of its own. Nevertheless, it is a crime
defined and punished under the Revised Penal Code. The crime committed by
one who induces another to testify falsely and the person who agrees and in
conspiracy with the inducer, testifies falsely, is perjury. (People vs. Padol, 66 Phil.
365)

FRAUDS

Article 185

MACHINATIONS IN PUBLIC AUCTION

ELEMENTS:

a That there be a public auction.

b That the accused solicited any gift or a promise from any of the bidders.

c That such gifts or promise was the consideration for his refraining from taking part in that
public auction.

d That the accused had the intent to cause the reduction of the price of the thing auctioned.

ELEMENTS OF ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY: a That there be a

public auction.

b That the accused attempted to cause the bidders to stay away from that public auction c That
it was done by threats, gifts, promises, or any other artifice.
84

That the accused had the intent to cause the reduction of the price of the thing auctioned.

Article 186

MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE:

Acts punished:

Combination to prevent free competition in the market

Elements

Entering into any contract or agreement or taking part in any conspiracy or combination in
the form of a trust or otherwise;

In restraint of trade or commerce or to prevent by artificial means free competition in the

market.

By entering into a contract or agreement or taking part in any conspiracy or

combination in the form of a trust or otherwise, in restraint of trade or commerce
or prevent by artificial means free competition in the market (It is enough that initial
steps are taken. It is not necessary that there be actual restraint of trade)

Monopoly to restrain free competition in the market

Elements

By monopolizing any merchandise or object of trade or commerce, or by combining with any

other person or persons to monopolize said merchandise or object;
In order to alter the prices thereof by spreading false rumors or making use of any other
artifice;

To restrain free competition in the market

Manufacturer, producer or processor or importer combining, conspiring or

agreeing with any person to make transactions prejudicial to lawful commerce or
to increase the market price of the merchandise.

Elements

Manufacturer, producer, processor or importer of any merchandise or object of commerce;

Combines, conspires or agrees with any person;

Purpose is to make transactions prejudicial to lawful commerce or to increase the market price
of any merchandise or object of commerce manufactured, produced, processed, assembled or
imported into the Philippines.

Person/s liable:
85

manufacturer

producer

processor

importer

Crime is committed by:

combining

conspiring

agreeing with another person

The purpose is:

to make transactions prejudicial to lawful commerce

to increase the market price of any merchandise or object of commerce manufactured,

produced, processed, assembled or imported into the Phil

Also liable as principals:

corporation/association

agent/representative

director/manager who willingly permitted or failed to prevent commission of above

offense
Aggravated if items are:

food substance

motor fuel or lubricants

goods of prime necessity

Article 187

IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR

MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS
OR THEIR ALLOYS

ELEMENTS:

a That the offender imports, sells or disposes of any of those articles or merchandise.

b That the stamps, brands, or marks or those articles or merchandise fails to indicate the
actual fineness or quality of said metals or alloys.

c That the offender knows that the said stamp, brand, or mark fails to indicate the actual
fineness or quality of the metals or alloys.

To be criminally liable, it is important to establish that the offender knows the

fact that the imported merchandise fails to indicate the actual fineness or
quality of the precious metal. If the importer has no expertise on the matter
such that he has no way of knowing how the fraud was committed, the
existence of such fact may be seriously considered as a defense.

What the law punishes herein is the selling of misbranded goods made of gold,
silver and other precious metals. Therefore, it must be shown that the seller
knows that the merchandise is misbranded. Hence, dishonesty is an essential
element of the crime.

Article 188
86

SUBSTITUTING ALTERING TRADE-MARK, TRADENAME, OR SERVICE

MARK

Acts punishable:

a By (a) substituting the trade name (t/n) or trademark (t/m) of some other manufacturer
or dealer or a colorable imitation thereof, for the t/n or t/m of the real manufacturer or dealer
upon any article of commerce and (b) selling the same.

By selling or by offering for sale such article of commerce, knowing that the t/n or t/m has
been fraudulently used

By using or substituting the service mark of some other person, or a colorable imitation of
such marks, in the sale or advertising of services

By printing, lithographing or reproducing t/n, t/m or service mark of one person, or a

colorable limitation thereof, to enable another person to fraudulently use the same, knowing
the fraudulent purpose for which it is to be used.

If a particular person is defrauded by the offender; as in the case of locally

manufactured goods, which the offender, by altering the label, are made to
appear as imported articles and sold to a particular person, the crime
committed is undoubtedly estafa as far as the particular person is concerned.
But if the falsely mislabeled goods are displayed in a store and offered for
sale to the public in general, the crime committed is punished under Article
188. So, if the deception is isolated and is confined to a particular person or
group of persons, estafa is committed. If the fraud is employed against the
public, Article 188 is violated.

Must not be another manufacturer otherwise unfair competition

Take note that after making the substitution the goods are displayed in the
store or market for sale, Article 188 is already committed even if no customer
comes to buy any of the goods on display. The mere offer for sale to the
public consummates the crime.

The pendency of the administrative aspect of the case is not a prejudicial

question in the resolution of the criminal case.
Article 189

UNFAIR COMPETITION, FRAUDULENT REGISTRATION OF TRADENAME,

TRADEMARK SERVICE MARK, FRAUDULENT DESIGNATION OF ORIGIN,
AND FALSE DESCRIPTION

Acts punished:

a Unfair competition by selling his goods, giving them the general appearance of the
goods of another manufacturer or dealer

b Fraudulent designation of origin; false description by (a) affixing to his goods or

using in connection with his services a false designation of origin; or any false
description or representation, and (b) selling such goods or services

c Fraudulent registration by procuring fraudulently from the patent office the

registration of t/m, t/m or service mark.

ELEMENTS:
87

That the offender gives his goods the general appearance of the goods of another
manufacturer or dealer

That the general appearance is shown in the (a) goods themselves, or in the (b) wrapping of
their packages, or in the (c) device or words therein, or in (d) any other feature of their
appearance

That the offender offers to sell or sells those goods or gives other persons a chance or
opportunity to do the same with a like purpose.

That there is actual intent to deceive the public or defraud a competitor.

Under Republic Act No. 166, Section 29, paragraph 2, unfair competition is
defined as follows: It consists in employing deception or any other means
contrary to good faith by which any person shall pass off the goods
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 to produce such result.

The true test of unfair competition is whether certain goods have been
clothed with an appearance which is likely to deceive the ordinary purchaser
exercising ordinary care.

(U.S. vs. Manuel, 7 Phil. 221)

For unfair competition to take place, it must be the manufacturer of the

goods who will cloth or label his goods with the trade name or trademark of
another manufacturer, who has established a good name or good will in the
mind of the public because of the quality of the merchandise manufactured
by him. The imitator is also a manufacturer of the same kind of product but
of inferior quality. By labeling his product with the trademark or trade name
of said manufacturer, he profits from the goodwill of another.

If the labeling or clothing of the goods is not done by another manufacturer,

the crime committed is not unfair competition but substitution of trademark
or trade name under Article 188.

When the honorable Supreme Court declared that unfair competition is

broader and more inclusive than infringement of trade name or trademark. In
infringement of trade name or trademark, the offended party has a peculiar
symbol or mark on his goods which is considered a property right which must
therefore be protected. In unfair competition, the offended party has
identified in the mind of the public the goods he manufactures to distinguish
it from the goods of the other manufacturers. In infringement of trade name
or trademark, the offender uses the trade name or trademark of another in
selling his goods, while in unfair competition, the offender gives his goods the
general appearance of the goods of another manufacturer and sells the same
to the public. (E. Spinner & Co. vs. New Hesslein Corp., 54 Phil. 224)

TITLE FIVE

CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS (190-194)

COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

(RA No. 9165)

Acts Punishable:

a. importation of prohibited drugs

88

sale, administration, delivery, distribution and transportation of prohibited drugs

maintenance of a den, dive or resort for prohibited drug users

being employees or visitors of drug den

manufacture of prohibited drugs

possession or use

cultivation of plants

failure to comply with provisions relative to keeping of records of prescription

unnecessary prescription

possession of opium pipe and other paraphernalia

Importation, sale, etc. of regulated drugs

DRUG SYNDICATE any organized group of two(2) or more persons forming or joining
together with the intention of committing any offense prescribed under the act.

PLANTING OF EVIDENCE the willful act by any person of maliciously and

surreptitiously inserting, placing, adding or attaching directly or indirectly, through any
overt or covert act, whatever quantity of any dangerous drug and/or controlled precursor
and essential chemical in the person, house, effects, or in the immediate vicinity of an
innocent individual for the purpose of implicating, incriminating or imputing the
commission of any violation of this Act.

P D E A Philippine Drug Enforcement Unit

Importation of prohibited/regulated drugs.

PENALTY : Life to death & fine of 500,000 to 10 million regardless of the Quantity and
purity involved

MAXIMUM PENALTY :

Use of diplomatic Passport

Financier

Sale, administration, delivery, distribution and transaction of prohibited/regulated

drugs.

- NOT BAILABLE

PENALTY : Life to death & fine of 500,000 to 10 million regardless of the Quantity and
purity involved ( includes BROKER )

Qualifying Circumstances

if the victim of the offense is a minor or should a prohibited/regulated drug involve in any
offense under this section be the proximate cause of the death of a victim thereof, the
maximum penalty herein shall be imposed.

Financier

Sale made within 100m from school

Maintenance of a den, dive, or resort for prohibited/regulated drug users.

** Property escheated in favor of the government

Qualifying Circumstance where a prohibited/regulated drug is administered,

delivered, or sold to a minor who is allowed to use the same in such place, or should a
prohibited drug be the proximate cause of the death of the person using the same in
such den, dive or resort, the maximum of the penalty shall be imposed.
Manufacture of prohibited/regulated drugs.
89

Possession of prohibited/regulated drugs.

PENALTY :

a. Life to death & fine of 500,000 to 10 million

10 gms. Opium, morphine, heroine, cocaine, marijuana resin and Ecstasy. 50 gms. Shabu

500 gms. Marijuana

Life Imprisonment and a fine of P400,000.00-P500,000.00 10-50 gms. Shabu

20 years to Life and a fine of 400,000.00-500,000.00

5-10 gms. Shabu

d. 12 20 years and a fine of 300,000.00-400,000.00 Less than 5 gms. Of any dangerous

drugs

Possession of paraphernalia

6 mos. 4 yrs. & fine of 10,000 50,000

Use of Dangerous Drugs A person apprehended or arrested, who is found to be

positive for use of any dangerous drug, after a confirmatory test, shall be imposed a
penalty of a minimum of six (6) months rehabilitation in a government center for the first
offense, subject to the provisions of Article VIII of this Act.
If apprehended using any dangerous drug act for the second time, he/she shall suffer the
penalty of imprisonment ranging from six (6) years and one (1) day to twelve(12) years
and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand
pesos (P200,000.00);

Provided, That this section shall not be applicable where the person tested is also found to
have in his/her possession such quantity of any dangerous drug provided for under
Section 11 of this Act, in which case the provisions stated therein shall apply.

Cultivation of plants which are sources of prohibited drugs.

Penalty - Life to death and a fine of P500,000.00 to P10 Million

a Note: The land/portions thereof and/or greenhouses in which any of the said plants is
cultivated or cultured shall be confiscated and escheated to the State, unless the owner
thereof can prove that he did not know of such cultivation or culture despite the exercise
of due diligence on his part.

b Qualifying Circumstance

If the land involved is part of the public domain, the maximum of the penalty herein
provided shall be imposed.

Maximum penalty imposed on financier

Failure to keep records of prescription, sales, purchases, acquisitions and/or

deliveries of prohibited/regulated drugs
90

Persons liable:

Pharmacist, Physician, Dentist, Veterinarian, Manufacturer, Wholesaler, Importer,

Distributor, Dealer, Retailer

Unlawful prescription of prohibited/regulated drugs

Penalty life to death and a fine of P500,000 to P10 Million

Unnecessary prescription of prohibited/regulated drugs

Penalty 12 to 20 years and fine of P100,000 to P500,000 plus revocation of license

Persons Liable: Physician or dentist who shall prescribe any prohibited/regulated drug
for any person whose physical/physiological condition does not require the use of
thereof.

Confiscation and forfeiture of the proceeds or instruments of the unlawful act,

including the properties of the proceeds derived from the illegal trafficking of
dangerous drugs.

Forfeited infavor of the government

After the conviction in the Regional Trial Court in the appropriate criminal case filed, the
Court shall immediately schedule a hearing for the confiscation and forfeiture of all the
proceeds of the offense and all the assets and properties of the accused either owned or
held by him or in the name of some other persons if the same shall be found to be
manifestly out of proportion of his/her income; Provided, however, That if the forfeited
property is a vehicle, the same shall be auctioned off not later than five (5) days upon
order of confiscation or forfeiture.

During the pendency of the case in the Regional Trial Court, no property, or income
derived therefrom, which may be confiscated and forfeited, shall be disposed, alienated
or transferred and the same shall be in custodia legis and no bond shall be admitted for
the release of the same.

Custody and disposition of confiscated, seized and/or surrendered dangerous drugs

PDEA in charge and custody for proper disposition

Procedure in Disposal

Apprehending team immediately after seizure shall make physical inventory and
photograph the seized drugs in the presence of the accused or his counsel, a
representative of the media and DOJ and any elected public official who shall sign the
copies of the inventory.

Within 24 hours upon confiscation/seizure of dangerous drugs, such drug shall be

submitted to the PDEA forensic laboratory for a qualitative and quantitative examination.

Certification of the forensic examination results shall be issued within 24 hours.

After the filing of the criminal case, the proper court shall conduct and ocular inspection
within 72 hours of the confiscated, seized and/or surrendered dangerous drugs.
91

After ocular inspection by the court, PDEA shall destroy or burn the confiscated, seized
and/or surrendered dangerous drugs within 24 hours in the presence of the accused or his
counsel, representative of the media and the DOJ, civil society groups and any elected
public officer.

PDEA shall issue a certification of such destruction and samples of the dangerous drugs
shall be submitted to the court.

Plea-Bargaining

Any person charged under any commission of this act regardless of the imposable penalty
shall not be allowed to avail of the provision on plea-bargaining.

Probation Law

Any person convicted for drug trafficking regardless of the penalty imposed cannot avail
of the privilege granted by the probation law.

Qualifying Aggravating Circumstance

A positive finding for the use of dangerous drugs shall be a qualifying aggravating
circumstance in the commission of a crime by an offender and the application of the
penalty provided for in the RPC.

Possession of opium pipe, equipment, apparatus or any paraphernalia fit or intended for
smoking, consuming, administering, injecting, ingesting, or otherwise using opium or any
other prohibited drug, shall be prima facie evidence that the possessor has smoked,
consumed, administered to himself, injected or used a prohibited drug.

Attempt and conspiracy to commit the following offenses: a Importation of

dangerous drugs
b Sale, administration, delivery, distribution and transportation of dangerous drugs c
Maintenance of a den, dive or resort for prohibited drugs

d Manufacture of dangerous drugs

e Cultivation or culture of plants which are sources of prohibited drugs

Other persons liable:

a If the violation of the Act is committed by a partnership, corporation, association or any

judicial person, the partner, president, director, or manager who consents to or knowingly
tolerates such violation shall be held criminally liable as co-principal.

b Partner, president, director, manager, officer or stockholder, who knowingly authorizes,

tolerates, or consents to the use of a vehicle, vessel, or aircraft as an instrument in the
importation, sale, delivery, distribution or transportation of dangerous drugs, or to the use
of their equipment, machines or other instruments in the manufacture of any dangerous
drugs, if such vehicle, vessel, aircraft, equipment, or other instrument, is owned or under
the control and supervision of
92

the partnership, corporation, association or judicial entity to which they are affiliated.

Criminal liability of a public officer or employee for misappropriation,

misapplication or failure to account for the confiscated, seized and/or surrendered
dangerous drugs

Penalty - life to death and a fine of P500,000.00 to P10 Million in addition to absolute
perpetual disqualification from any public office.

Any elective local or national official found to have benefited from the proceeds of the
trafficking of dangerous drugs or have received any financial or material contributions
from persons found guilty of drug trafficking dangerous drugs, shall be removed from
office and perpetually disqualified from holding any elective or appointive positions in the
government.

Planting of Evidence

Any person who is found guilty of planting any dangerous drug regardless of the quantity
and purity, shall suffer the penalty of death.

Drug Testing

Applicants for drivers license - mandatory

Applicants for firearms license and for permit to carry - mandatory

Students of secondary and tertiary schools random (school shall shoulder expenses)

Officers and employees of private and public offices random (employer shall shoulder
expenses)

Any officer or employee found positive for use of dangerous drug shall be dealt with
administratively which shall be a ground for suspension or termination subject to Art.

of the Labor Code and pertinent provisions of the Civil Service Law.
Officers and members of the military, police and other law enforcement agencies
annual mandatory

All persons charged before the prosecutors office with a criminal offense having an
impossible penalty of imprisonment of not less than six (6) years and one (1) day shall
have to undergo a mandatory drug test

All candidates for public office whether appointed or elected both in the national or local
government shall undergo a mandatory drug test.

Issuance of False or fraudulent drug test results (whether willfully or through

gross negligence)

Penalty 6 to 12 years and fine P100,000.00 to P500,000.00

Additional penalty revocation of license to practice and closure of the drug testing
center

For the purpose of enforcing the provisions of this Act, all school heads, supervisors and
teachers shall be deemed to be persons in authority and, as
93

such, are vested with the power to apprehend, arrest, or cause the apprehension or
arrest of any person who shall violate any of the said provision.

NOTE: They shall be considered as persons in authority if they are in the school or
within its immediate vicinity, or beyond such immediate vicinity if they are in attendance
in any school or class function in their official capacity as school heads, supervisors or
teachers.

Any teacher or school employee who discovers or finds that any person in the school or
within its immediate vicinity is violating this Act shall have the duty to report the violation
to the school head or supervisor who shall, in turn, report the matter to the proper
authorities. Failure to report in either case shall, after hearing, constitute sufficient cause
for disciplinary action.

Rules regarding rehabilitation of drug dependents

Voluntary submission

Voluntary submission of a drug dependent to confinement, treatment and

rehabilitation by the drug dependent himself or through his parent, guardian or relative
within the 4th civil degree of consanguinity or affinity, in a center and compliance with
such conditions therefor as the Dangerous Drugs Board may prescribe shall exempt
from criminal liability for possession or use of the prohibited/regulated drug. (Applicable
only to those liable for use of dangerous drugs and not to possession and sale)

Should the drug dependent escape from the center, he may submit himself for
confinement within 1 week from the date of his escape, of his parent guardian or relative
may, within the same period surrender him for confinement.

Upon application of the Board, the Court shall issue an order for recommitment if the
drug dependent does not resubmit himself for confinement or if he is not surrendered for
recommitment.

If, subsequent to such recommitment, he should escape again, he shall no longer be

exempt from criminal liability for the use or possession of any dangerous drug.
If a person charged with an offense is found by the fiscal or by the Court at any stage of
the proceedings, to be a drug dependent, the fiscal or court as the case may be, shall
suspend all further proceedings and transmit records of the case to the Board.

After his rehabilitation, he shall be prosecuted for such violation. In case of conviction,
the judgement shall, if the accused is certified by the treatment and rehabilitation center
to have maintained good behavior, indicate that he shall be given full credit for the period
he was confined in the center.

NOTE: When the offense is use of dangerous drugs and the accused is not a recidivist,
the penalty thereof shall be deemed to have been served in the center upon his release
therefrom.

The period of prescription of the offense charged shall not run during the time that the
respondent/accused is under detention or confinement in a center.

Requisites of suspension of sentence for first offense in a minor:

94

If accused is a minor (under 18 years of age at the time of the commission of the offense
but not more than 21 years of age when the judgement should have been promulgated.

He has not been previously convicted of violating any provision of this Act or of the RPC
or placed on probation.

Sentence shall be deferred and the accused shall be placed on probation under the supervision
of the Board.

In case of violation of conditions of pardon, court shall pronounce judgment of conviction and he
shall serve sentence.

If accused did not violate conditions of probation, case shall be dismissed upon expiration of the
designated period.

Compulsory submission

If a person charged with an offense where the imposable penalty is imprisonment of not
more than six (6) years and one (1) day, and is found by the prosecutor or by the court,
at any stage of the proceedings, to be a drug dependent, the prosecutor of the court as
the case may be, shall suspend all further proceedings and transmit copies of the record
of the case to the Board.

Jurisdiction Over Dangerous Drug Cases

Section 90. Jurisdiction The Supreme Court shall designate special courts from among
the existing Regional Trial Court in each judicial region to exclusively try and hear cases
involving violations of this Act. The number of court designated in each judicial region
shall be based on population and the number of cases pending in their respective
jurisdiction.

The DOJ shall designate special prosecutors to exclusively handle cases involving
violations of this Act.
The preliminary investigation of cases filed under this Act shall be terminated within a
period of thirty (30) days from the date of their filing.

When the preliminary investigation is conducted by a public prosecutor and a probable

cause is established, the corresponding information shall be filed in court within 24 hours
from the termination of the investigation. If the preliminary investigation is conducted by
a judge and a probable cause is found to exist, the corresponding information shall be
filed by the proper prosecutor within 48 hours from the receipt of the records of the case.

Section 91. Responsibility and Liability of Law Enforcement Agencies and Other
Government Officials and Employees Testifying as Prosecution Witnesses in
Dangerous Drugs Cases Any member of law enforcement agencies or any other
government official and employees who, after due notice, fails or refuses intentionally or
negligently, to appear as a witness for the prosecution in any proceedings, involving
violations of this Act, without any valid reason, shall be punished with imprisonment of
not less than twelve (12) years and one (1) day to 20 years and a fine of not less than
95

P500,000.00, in addition to the administrative liability he/she may be meted out by

his/her immediate superior and/or appropriate body.

The immediate superior of a member of the law enforcement agency or any other
government employee mentioned in the preceding paragraph shall be penalized with
imprisonment of not less than two (2) months and one (1) day but not more than six (6)
years and a fine of not less than P10,000.00 but not more than P50,000 and in addition,
perpetual absolute disqualification from public office if despite due notice to them and to
the witness concerned, the former does not exert reasonable effort to present the latter to
the court.

The member of the law enforcement agency or any other government employee
mentioned in the preceding paragraphs shall not be transferred or re-assigned to any other
territorial jurisdiction during the pendency of the case in court. However, the concerned
member of the law enforcement agency or government employee may be transferred or
re-assigned for compelling reasons; Provided, That his/her immediate superior shall
notify the court where the case is pending of the order of transfer or re-assign, within 24
hours from its approval; Provided further, That his/her immediate superior shall be
penalized with imprisonment of not less than two (2) months and one (1) day but not less
than six (6) years and a fine of not less than P10,000.00 but not more than P50,000.00
and in addition, perpetual absolute disqualification from public office, should he/she fail
to notify the court of such order to transfer or re-assign.

Prosecution and punishment under this Section shall be without prejudice to any liability
for violation of any existing law.

Section 92. Delay and Bungling in the Prosecution of Drug Cases. - Any government officer
or employee tasked with the prosecution of drug-related cases under this Act, who,
through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the
unsuccessful prosecution and/or dismissal ranging from 12 years and 1 day to 20 years
without prejudice to his/her prosecution under the pertinent provisions of the Revised
Penal Code.

Buy Bust Operation no law or rule to require policemen to adopt a uniform way of
identifying BUY MONEY (P v. Abedes)

Absence of ultraviolet powder is not fatal in the prosecution

Transportation/importation of MJ immaterial whether there may or may not be a
distinction for the MJ

Distinguish Entrapment and Instigation:

If prosecution can prove the crime without presenting the informer or asset not
necessary because their testimonies are merely corroborative. Poseur buyer it
depends on whether the prosecution can prove the crime without their testimonies (P v.
Rosalinda Ramos)

Under the RA, special aggravating circumstance if a crime has been committed while the
accused was high on drugs (P v. Anthony Belgar)
96

Delivery or Sale of Prohibited Drugs the accused must be aware that what he is
selling or delivering was prohibited drug. But the moment the fact of sale or delivery
is proved by prosecution, the burden to prove that the accused is not aware that
drugs are prohibited falls on the defense (P v. Aranda)

P v. Angelito Manalo burden of proving the authority to possess shabu is a matter of

defense

P v. Hilario Moscaling court may take judicial notice of the word shabu

Criminal liabilities of a policeman who sold the drugs confiscated from a pusher:
violation of RA 9165 and malversation under RPC.

Planting evidence to implicate another

Buy Bust Operation form of entrapment (P v. Alberto) not necessary to have

prior police surveillance (P v. Carlos Franca)

Possession constructive or actual not necessary to adduce the marked money

as evidence (P v. Romeo Macara)

Separate crimes sale/possession of MJ found in his possession after he was

frisked but he cant be convicted for possession of MJ that he sold

If victim is minor or drug is proximate cause of death max penalty is imposed

First offense of a minor suspension of sentence

CONDITIONS:

under 18 at time of commission but not more than 21 at time when judgment was
promulgated

found guilty of possession or use of prohibited or regulated drugs

not been previously convicted of violating any provision of this Act or the RPC

not been placed on probation

defer sentence, place on probation for 6 months to 1 year

violation of probation pronounce sentence convict and serve sentence

no violation discharge him and dismiss the proceeding

if minor is drug dependent commit to a center for treatment and rehabilitation

97

TITLE SIX

CRIMES AGAINST PUBLIC MORALS

Crimes against public morals

Gambling (Art. 195);

Importation, sale and possession of lottery tickets or advertisements (Art. 196);

Betting in sport contests (Art. 197);

Illegal betting on horse races (Art. 198); Illegal cockfighting (Art. 199);

Grave scandal (Art. 200);

Immoral doctrines, obscene publications and exhibitions (Art. 201); and Vagrancy
and prostitution (Art. 202).

Article 195. What Acts Are Punishable in Gambling

Acts punished

Taking part directly or indirectly in

any game of monte, jueteng, or any other form of lottery, policy, banking, or percentage
game, dog races, or any other game or scheme the results of which depend wholly or
chiefly upon chance or hazard; or wherein wagers consisting of money, articles of value,
or representative of value are made; or
the exploitation or use of any other mechanical invention or contrivance to determine by
chance the loser or winner of money or any object or representative of value;

Knowingly permitting any form of gambling to be carried on in any place owned or

controlled by the offender;

Being maintainer, conductor, or banker in a game of jueteng or similar game;

Knowingly and without lawful purpose possessing lottery list, paper, or other matter
containing letters, figures, signs or symbol which pertain to or are in any manner used in
the game of jueteng or any similar game.

What is gambling?

It is a game or device or method, the result of which depends wholly or

chiefly upon chance or hazard. So, if the game depends wholly upon skill or
ability of the players, there is no gambling.
98

The manner of determining whether the game played is prohibited or not is

whether the result will depend wholly or chiefly upon chance or hazard.

Significantly, if the game has been identified and declared as a form of

gambling by express provision of law, there will be no need or requirement to
go into the methods upon how the game is played.

What is lottery?

It is a scheme for the distribution of prizes by chance among persons who

have paid, or agreed to pay, a valuable consideration for a chance to obtain a
prize. (US vs.

Filart, et al., 30 Phil. 80)

Pinball machines or slot machines are considered gambling devices because

the result depends upon chance or hazard.

If the prizes do not come out of the funds or contributions of the participants,
there is no lottery. (Uy vs. Palomar, 27 SCRA 287)

Article 196.

IMPORTATION, SALE AND POSSESSION OF LOTTERY TICKETS OR

ADVERTISEMENTS

Acts punished

Importing into the Philippines from any foreign place or port any lottery ticket or
advertisement; or

Selling or distributing the same in connivance with the importer;

Possessing, knowingly and with intent to use them, lottery tickets or
advertisements; or

Selling or distributing the same without connivance with the importer of the same.

Note that possession of any lottery ticket or advertisement is prima facie evidence of an intent to
sell, distribute or use the same in the Philippines.

Article 197.

BETTING IN SPORT CONTESTS

This article has been repealed by Presidential Decree No. 483 (Betting, Game-fixing or Point-
shaving and Machinations in Sport Contests):

PENALIZING BETTING, GAME-FIXING OR POINT-SHAVING AND

MACHINATIONS IN SPORTS CONTESTS

PD 483

Acts Punishable:
99

Betting: Betting money or any object or article of value of representative value upon the
result of any game, races and other sports contests.

Game-fixing: any arrangement, combination, scheme or agreement by which the result

of any game, races, or sports contests shall be predicated and/or known other than on
the basis of the honest playing skill or ability of the players or participants.

Point-shaving: any such arrangement combination, scheme or agreement by which the

skill or ability of any player or participant in a fame, races, or sports contests to make
points of scores shall be limited deliberately in order to influence the result thereof in
favor of one or other team, player or participant.

Game Machination: any other fraudulent, deceitful, unfair or dishonest means, method,
manner or practice employed for the purpose of influencing the result of any game,
races or sports contest.

Article 198.

ILLEGAL BETTING ON HORSE RACE

Acts punished

Betting on horse races during periods not allowed by law;

Maintaining or employing a totalizer or other device or scheme for betting on

races or realizing profit therefrom during the periods not allowed by law.

When horse races not allowed:

July 4 (Republic Act No. 137);

December 30 (Republic Act No. 229);

Any registration or voting days (Republic Act No. 180, Revised Election Code);
and

Holy Thursday and Good Friday (Republic Act No. 946).

Article 199.

ILLEGAL COCKFIGHTING

This article has been modified or repealed by Presidential Decree No. 449 (The Cockfighting

Law of 1974):

COCKFIGHTING LAW OF 1974

PD 449

Scope This law shall govern the establishment, operation, maintenance and
ownership of cockpits.
100

Rules:

Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own,
manage and operated cockpits.

Only one cockpit shall be allowed in each city or municipality with a population of
100,000 or less.

Cockpits shall be constructed and operated within the appropriate areas as prescribed in
the Zoning Law or ordinance.

When allowed:

Cockfighting shall be allowed only in licensed cockpits during Sundays and legal
holidays and during local fiestas for not more than 3 days; or

During provincial, city or municipal, agricultural, commercial or industrial fair, carnival or

exposition for a similar period of 3 days upon resolution of the province, city or
municipality where such fair, carnival or exposition is to be held, subject to the approval
of the Chief of Constabulary or his authorized representative.

Limitations:

No cockfighting on the occasion of such fair, carnival or exposition shall be allowed

within the month of the local fiesta or for more than 2 occasions a year in the same city
of municipality.

No cockfighting shall be held on December 30, June 12,November 30, Holy Thursday,
Good Friday, Election Day and during registration days for such election/referendum.

If the purpose is for the entertainment of foreign dignitaries or for tourists, or for returning
balikbayans, or for the support of national fund-raising campaigns for charitable
purposes as may be authorized by the Office of the President upon resolution of a
provincial board, city or municipal council, in licensed cockpits or in playgrounds or
parks.
Limitations: This privilege shall be extended for only one time, for a period not
exceeding 3 days, within a year to a province, city or municipality.

No gambling of any kind shall be permitted on the premises of the cockpit or place of
cockfighting during cockfights.

City or municipal mayors are authorized to issue licenses for the operation and
maintenance of cockpits.

Presidential Decree No. 1602 (Simplifying and Providing Stiffer Penalties

for Violations of Philippine Gambling Laws)

Section 1. Violations and Penalties. -- The penalty of prision mayor in its medium degree or a fine
ranging from Five Hundred Pesos to Two Thousand Pesos and in case of
101

recidivism the penalty of prision correccional in its medium degree or a fine of ranging from One
Thousand Pesos to Six Thousand Pesos shall be imposed upon:

Any person other than those referred to in the succeeding subsection who in any manner, shall
directly or indirectly take part in any game of cockfighting, jueteng, bookies (jai- alai or horse
racing to include game fixing) and other lotteries, cara y cruz or pompiang and the like, black jack,
lucky nine, pusoy or Russian Poker, monte, baccarat and other card games, palk que, domino,
mahjong, high and low, slot machines, roulette, pinball and other mechanical inventories or
devices, dog racing, boat racing, car raising and other races, basketball, volleyball, boxing,
seven-eleven dice games and the like and other contests to include game fixing, point shaving
and other machinations banking or percentage game, or any other game or scheme, whether
upon chance or skill, which do not have a franchise from the national government, wherein
wagers consisting of money, articles of value of representative of value are made;

Any person who shall knowingly permit any form of gambling referred to in the preceding
subdivision to be carried on in inhabited or uninhabited places or any building, vessel or other
means of transportation owned or controlled by him. If the place where gambling is carried on has
a reputation of a gambling place or that prohibited gambling is frequently carried on therein or the
place is a public or government building or barangay hall, the culprit shall be punished by the
penalty provided for in its maximum period and a fine of Six Thousand Pesos.

The penalty of prision correccional in its maximum degree and a fine of Six Thousand Pesos shall
be imposed upon the maintainer, conductor of the above gambling schemes.

The penalty of prision mayor in its medium degree and temporary absolute disqualification and a
fine of Six Thousand Pesos shall be imposed if the maintainer, conductor or banker is a
government official, or if a player, promoter, referee, umpire, judge or coach in cases of game-
fixing, point-shaving and other game machination.

The penalty of prision correccional in its medium degree and a fine ranging from Five

Hundred pesos to Two Thousand Pesos shall be imposed upon any person who shall knowingly
and without lawful purpose in any hour of any day shall have in his possession any lottery list,
paper, or other matter containing letter, figures, signs or symbols which pertain to or in any
manner used in the game of jueteng, jai-alai or horse racing bookies and similar game or lottery
which has taken place or about to take place.

Section 2. Barangay Official. Any barangay official in whose jurisdiction such gambling house is
found and which house has the reputation of a gambling place shall suffer the penalty of prision
correccional in its medium period and a fine ranging from Five Hundred to Two

Thousand Pesos and temporary absolute disqualifications.

While the acts under the Revised Penal Code are still punished under the new law, yet the
concept of gambling under it has been changed by the new gambling law.

Before, the Revised Penal Code considered the skill of the player in classifying whether a game
is gambling or not. But under the new gambling law, the skill of the players is immaterial.

Any game is considered gambling where there are bets or wagers placed with the hope to win a
prize therefrom.

Under this law, even sports contents like boxing, would be gambling insofar as those who are
betting therein are concerned. Under the old penal code, if the skill of the player outweighs the
chance or hazard involved in winning the game, the game is not considered gambling but a sport.
It was because of this that betting in boxing and basketball games proliferated.

Unless authorized by a franchise, any form of gambling is illegal. So said the court in the recent
resolution of the case against the operation of jai-alai.
102

There are so-called parlor games which have been exempted from the operation of the decree
like when the games are played during a wake to keep the mourners awake at night. Pursuant to
a memorandum circular issued by the Executive Branch, the offshoot of the exemption is the
intentional prolonging of the wake of the dead by gambling lords.

As a general rule, betting or wagering determines whether a game is gambling or not.

Exceptions: These are games which are expressly prohibited even without bets. Monte, jueteng
or any form of lottery; dog races; slot machines; these are habit-forming and addictive to players,
bringing about the pernicious effects to the family and economic life of the players.

Mere possession of lottery tickets or lottery lists is a crime punished also as part of gambling.
However, it is necessary to make a distinction whether a ticket or list refers to a past date or to a
future date.

Illustration:

X was accused one night and found in his possession was a list of jueteng. If the date therein
refers to the past, X cannot be convicted of gambling or illegal possession of lottery list without
proving that such game was indeed played on the date stated. Mere possession is not enough.

If the date refers to the future, X can be convicted by the mere possession with intent to use. This
will already bring about criminal liability and there is no need to prove that the game was played
on the date stated. If the possessor was caught, chances are he will not go on with it anymore.

There are two criteria as to when the lottery is in fact becomes a gambling game:

If the public is made to pay not only for the merchandise that he is buying, but also for the chance
to win a prize out of the lottery, lottery becomes a gambling game. Public is made to pay a higher
price.

If the merchandise is not saleable because of its inferior quality, so that the public actually does
not buy them, but with the lottery the public starts patronizing such merchandise. In effect, the
public is paying for the lottery and not for the merchandise, and therefore the lottery is a gambling
game. Public is not made to pay a higher price.

Illustrations:
A certain supermarket wanted to increase its sales and sponsored a lottery where valuable prices
are offered at stake. To defray the cost of the prices offered in the lottery, the management
increased their prices of the merchandise by 10 cents each. Whenever someone buys from that
supermarket, he pays 10 cents more for each merchandise and for his purchase, he gets a
coupon which is to be dropped at designated drop boxes to be raffled on a certain period.

The increase of the price is to answer for the cost of the valuable prices that will be covered 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.

But if the increase in prices of the articles or commodities was not general, but only on certain
items and the increase in prices is not the same, the fact that a lottery is sponsored does not
appear to be tied up with the increase in prices, therefore not illegal.

Also, in case of manufacturers, you have to determine whether the increase in the price was due
to the lottery or brought about by the normal price increase. If the increase in price is brought
about by the normal price increase [economic factor] that even without the lottery the price would
be like that, there is no consideration in favor of the lottery and the lottery would not amount to a
gambling game.
103

If the increase in the price is due particularly to the lottery, then the lottery is a gambling game.
And the sponsors thereof may be prosecuted for illegal gambling under

Presidential Decree No. 1602.

The merchandise is not really saleable because of its inferior quality. A certain manufacturer,
Bhey Company, manufacture cigarettes which is not saleable because the same is irritating to the
throat, sponsored a lottery and a coupon is inserted in every pack of cigarette so that one who
buys it shall have a chance to participate. Due to the coupons, the public started buying the
cigarette. Although there was no price increase in the cigarettes, the lottery can be considered a
gambling game because the buyers were really after the coupons not the low quality cigarettes.

If without the lottery or raffle, the public does not patronize the product and starts to patronize
them only after the lottery or raffle, in effect the public is paying for the price not the product.

Under this decree, a barangay captain who is responsible for the existence of gambling dens in
their own locality will be held liable and disqualified from office if he fails to prosecute these
gamblers. But this is not being implemented.

Gambling, of course, is legal when authorized by law.

Fund-raising campaigns are not gambling. They are for charitable purposes but they have to
obtain a permit from Department of Social Welfare and Development. This includes concerts for
causes, Christmas caroling, and the like.

OFFENSES AGAINST DECENCY AND GOOD CUSTOMS

Article 200

GRAVE SCANDAL

ELEMENTS:
Offender performs an act

Act is highly scandalous as offending against decency or good customs

Highly scandalous conduct does not expressly fall within any other article of the RPC

Committed in a public place or within the public knowledge or view. (The public view is not
required, it is sufficient if in public place. For public knowledge, it may occur even in a
private place; the number of people who sees it is not material).

Grave scandal: consists of acts which are offensive to decency and good customs.
They are committed publicly and thus, give rise to public scandal to persons who have
accidentally witnessed the acts

The crime of grave scandal is a crime against public morals.

Necessarily, the offender must commit the crime in a public place or
within the view of the public.

In grave scandal, the scandal involved refers to moral scandal offensive to decency, although it
does not disturb public peace. But such conduct or act must be open to the public view.
104

In alarms and scandals, the scandal involved refers to disturbances of the public tranquility and
not to acts offensive to decency.

Decency: means properly observing the requirements of modesty, good taste etc

Customs: refers to established usage, social conventions carried on by tradition and

enforced by social disapproval in case of violation

If the acts complained of are punishable under another provision of the RPC, Art 200 is
not applicable

Any act which is notoriously offensive to decency may bring about criminal liability for the crime of
grave scandal provided such act does not constitute some other crime under the Revised Penal

Code. Grave scandal is a crime of last resort.

The essence of grave scandal is publicity and that the acts committed are not only
contrary to morals and good customs but must likewise be of such character as to cause
public scandal to those witnessing it.

Distinction should be made as to the place where the offensive act was committed, whether in the
public place or in a private place:

In public place, the criminal liability arises irrespective of whether the immoral act is open to the
public view. In short public view is not required.

When act offensive to decency is done in a private place, public view or public knowledge is
required.

Public view does not require numerous persons. Even if there was only one person who
witnessed the offensive act for as long as the third person was not an intruder, grave scandal is
committed provided the act does not fall under any other crime in the Revised Penal Code.

Illustrations:
A man and a woman enters a movie house which is a public place and then goes to the darkest
part of the balcony and while there the man started performing acts of lasciviousness on the
woman.

If it is against the will of the woman, the crime would be acts of lasciviousness. But if there is
mutuality, this constitutes grave scandal. Public view is not necessary so long as it is performed
in a public place.

A man and a woman went to Luneta and slept there. They covered themselves their blanket and
made the grass their conjugal bed.

This is grave scandal.

In a certain apartment, a lady tenant had the habit of undressing in her room without shutting the
blinds. She does this every night at about eight in the evening. So that at this hour of the night,
you can expect people outside gathered in front of her window looking at her silhouette. She was
charged of grave scandal. Her defense was that she was doing it in her own house.

It is no defense that she is doing it in her private home. It is still open to the public view.

In a particular building in Makati which stands right next to the house of a young lady who goes
sunbathing in her poolside. Every morning several men in the upper floors would stick their heads
out to get a full view of said lady while in her two-piece swimsuit. The
105

lady was then charged with grave scandal. Her defense was that it is her own private pool and it
is those men looking down at her who are malicious.

This is an act which even though done in a private place is nonetheless open to public view.

Article 201

IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS:

Persons liable:

Those who publicly expound or proclaim doctrines that are contrary to public
morals

Authors of obscene literature, published with their knowledge in any form

Editors publishing such obscene literature

Owners or operators of establishments selling obscene literature

Those who exhibit indecent or immoral plays, scenes, acts or shows ion theaters,
fairs, cinemas or any other place

Those who sell, distribute, or exhibit prints, engraving, sculptures or literature

which are offensive to morals

Morals: implies conformity to generally accepted standards of goodness or rightness in

conduct or character

Test of obscenity: whether the matter has a tendency to deprave or corrupt the minds
of those who are open to immoral influences. A matter can also be considered obscene if
it shocks the ordinary and common sense of men as indecency.
The test is objective. It is more on the effect upon the viewer and not alone on the conduct of the
performer.

If the material has the tendency to deprave and corrupt the mind of the viewer then the same is
obscene and where such obscenity is made publicly, criminal liability arises.

The law is not concerned with the moral of one person. As long as the pornographic matter or
exhibition is made privately, there is no crime committed under the Revised Penal Code because
what is protected is the morality of the public in general.

In committing this crime, there must be publicity. It means the act or acts
done must come to the knowledge of third persons.

However, Art 201 enumerates what are considered as obscene literature or

immoral or indecent plays, scenes or acts:

those w/c glorify criminals or condone crimes

those w/c serve no other purpose but to satisfy the market for violence, lust or
pornography

those w/c offend against any race or religion

106

those w/c tend to abet the traffic in and the use of prohibited drugs

those that are contrary to law, public order, morals, good customs, established policies, lawful
orders, decrees and edicts

Mere nudity in paintings and pictures is not obscene

Pictures w/ a slight degree of obscenity having no artistic value and intended for commercial
purposes fall within this article

Publicity is an essential element

Sexual indulgence is not in itself immoral if done within the bounds of privacy and
performed normally. The moment the parties carry their private rights and privileges
to public view, they expose themselves to public scrutiny.

Article 202

VAGRANTS AND PROSTITUTES:

Who are considered vagrants:

Those who have no apparent means of subsistence and who have the physical ability to
work yet neglect to apply themselves to some useful calling

Persons found loitering around public and semi-public places without visible means of
support

Persons tramping or wandering around the country or the streets with no visible means of
support
Idle or dissolute persons lodging in houses of ill-fame

Ruffians or pimps and those who habitually associate with prostitutes (may include even
the rich)

Persons found loitering in inhabited or uninhabited places belonging to others, without any
lawful or justifiable reason provided the act does not fall within any other article of the RPC

If fenced and with prohibition of entry

Trespass to dwelling

If fenced and entered to hunt/fish

Attempted theft

If not fenced and with no prohibition of entry

Vagrancy

Who are considered prostitutes - refer to women who habitually indulge in sexual intercourse or
lascivious conduct for money or profit (if a man indulges in the same conduct: vagrancy)
107

In law the mere indulging in lascivious conduct habitually because of money or gain would
amount to prostitution, even if there is no sexual intercourse. Virginity is not a defense.

Habituality is the controlling factor; it has to be more than one time.

There cannot be prostitution by conspiracy. One who conspires with a woman in the prostitution
business like pimps, taxi drivers or solicitors of clients are guilty of the crime under Article 341 for
white slavery.

TITLE SEVEN

CRIMES COMMITTED BY PUBLIC OFFICERS

Crimes committed by public officers

Knowingly rendering unjust judgment (Art. 204);

Judgment rendered through negligence (Art. 205);

Unjust interlocutory order (Art. 206);

Malicious delay in the administration of justice (Art. 207);

Prosecution of offenses; negligence and tolerance (Art. 208);

Betrayal of trust by an attorney or solicitor Revelation of secrets (Art. 209);

Direct bribery (Art. 210);

Indirect bribery (Art. 211);

Qualified bribery (Art. 211-A);

Corruption of public officials (Art. 212);

Frauds against the public treasury and similar offenses (Art. 213);

Other frauds (Art. 214);

Prohibited transactions (Art. 215);

Possession of prohibited interest by a public officer (Art. 216);

Malversation of public funds or property Presumption of malversation (Art. 217)

Failure of accountable officer to render accounts (Art. 218);

Failure of a responsible public officer to render accounts before leaving the country (Art.
219);

Illegal use of public funds or property (Art. 220);

Failure to make delivery of public funds or property (Art. 221);

Conniving with or consenting to evasion (Art. 223);

Evasion through negligence (Art. 224);

108

Escape of prisoner under the custody of a person not a public officer (Art. 225);

Removal, concealment or destruction of documents (Art. 226);

Officer breaking seal (Art. 227);

Opening of closed documents (Art. 228);

Revelation of secrets by an officer (Art. 229);

Public officer revealing secrets of private individual (Art. 230);

Open disobedience (Art. 231);

Disobedience to order of superior officer when said order was suspended by inferior
officer (Art. 232);

Refusal of assistance (Art. 233);

Refusal to discharge elective office (Art. 234);

Maltreatment of prisoners (Art. 235);

Anticipation of duties of a public office (Art. 236);

Prolonging performance of duties and powers (Art. 237);

Abandonment of office or position (Art. 238);

Usurpation of legislative powers (Art. 239);

Usurpation of executive functions (Art. 240);

Usurpation of judicial functions (Art. 241);

Disobeying request for disqualification (Art. 242);

Orders or requests by executive officers to any judicial authority (Art. 243);

Unlawful appointments (Art. 244); and

Abuses against chastity (Art. 245).

The designation of the title is misleading. Crimes under this title can be committed by public
officers or a non-public officer, when the latter become a conspirator with a public officer, or an
accomplice, or accessory to the crime. The public officer has to be the principal.

In some cases, it can even be committed by a private citizen alone such as in Article 275
(infidelity in the custody of a prisoner where the offender is not a public officer) or in Article 222

(malversation).
109

Article 203

WHO ARE PUBLIC OFFICERS:

Takes part in the performance of public functions in the Government, or

Performs public duties as an employee, agent or subordinate official in the govt or any of
its branches

Notes:

Public officer must derive his authority from:

direct provision of law

popular election

3.appointment by competent authority

In defining the term public officers, the law makes the reference to the manner by
which he is appointed to public office. He thus becomes a public officer because of his
appointment by competent authority or because he is elected to public office.

Public officers: embraces every public servant from the lowest to the highest rank

Under Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act), the term public officer is broader
and more comprehensive because it includes all persons whether an official or an employee, temporary or
not, classified or not, contractual or otherwise. Any person who receives compensation for services rendered
is a public officer.

A government laborer is not a public officer. However, temporary performance by a laborer of

public functions makes him a public officer
Crimes committed by public officers are nothing but corruption in public service.

Breach of oath of office partakes of three forms:

Misfeasance: means improper performance of an act which might be properly be performed

Malfeasance: means performance of an act which ought not to be done

Nonfeasance: means omission of an act which ought to be done

Malfeasance

Doing of an act which a public officer should not have done

Misfeasance

Improper doing of an act which a person might lawfully do

Nonfeasance

Failure of an agent to perform his undertaking for the principal

Article 204:

KNOWINGLY RENDERING AN UNJUST JUDGMENT

ELEMENTS:

a. Offender is a judge
110

Renders a judgment in the case submitted to him for judgment

Judgment is unjust

Knowledge that the decision is unjust

Notes:

Judgment: is a final consideration and determination by a court of competent

jurisdiction of the issues submitted to it in an action or proceeding

The law requires that the judgment must be written in the official language,
personally and directly prepared by the judge, and signed by him. It must
contain a clear and distinct statement of facts proved or admitted by the
defendant and upon which the judgment is based.

Unjust judgment: one which is contrary to law, or not supported by the evidence, or
both

An unjust judgment may result from:

error (with bad faith)

ill-will or revenge

bribery

There must be evidence that the decision rendered is unjust. It is not presumed
To be liable for the above crime, not only must the judgment be proved to be
unjust .it must likewise be established to have been knowingly rendered.
There must be a conscious and deliberate intent to do an injustice. This
usually occurs when the judge entertains hatred, envy, revenge, or greed
against one of the parties.

Abuse of discretion or mere error of judgment cannot likewise serve as basis for
rendering an unjust judgment in the absence of proof or even an allegation of bad faith
(motive or improper consideration).

Article 205

JUDGMENT RENDERED THROUGH NEGLIGENCE

ELEMENTS:

Offender is a judge

Renders a judgment in a case submitted to him for decision

Judgment is manifestly unjust

Due to inexcusable negligence or ignorance

Manifestly unjust judgment: one that is so contrary to law that even a person having
meager knowledge of the law cannot doubt the injustice
111

The unjust judgment is merely the result of inexcusable negligence or

ignorance of the law. The ignorance may refer to substantive or procedural
law. There must be an apparent and notorious manifestation of lack of logic
and false interpretation of the law.

(Cortes vs. Catral, 279 SCRA 1)

Article 206

UNJUST INTERLOCUTORY ORDER

ELEMENTS:

That the offender is a judge.

That he performs any of the following acts:

knowingly renders unjust interlocutory order or decree, or

renders a manifestly unjust interlocutory order or decree through inexcusable negligence or

ignorance.

Interlocutory order: one issued by the court deciding a collateral or incidental matter. It
is not a final determination of the issues of the action or proceeding

The crime of knowingly rendering an unjust judgment, or knowingly issuing an unjust interlocutory
order, may be committed only by a judge of a trial court and never of an appellate court. The
reason for this is that in appellate court, not only one magistrate renders or issues the
interlocutory order. An appellate court functions as a division and the resolutions thereof are
handed down only after deliberations among the members of a division so that it cannot be said
that there is malice or inexcusable negligence or ignorance in the rendering of a judgment or
order that is supposedly unjust as held by the Supreme Court in one administrative case.
Article 207

MALICIOUS DELAY IN THE ADMINISTRATION OR JUSTICE

ELEMENTS:

That the offender is a judge.

That there is a proceeding in his court.

That he delays the administration of justice.

That the delay is malicious, that is, the delay is caused by the judge with deliberate intent to
inflict damage on either party in the case.

Mere delay without malice is not punishable

Malice must be proven. Malice is present where the delay is sought to favor one party to the
prejudice of the other.

These have been interpreted by the Supreme Court to refer only to judges of the trial court.

The Constitution provides that cases submitted for decision before the
Supreme Court must be resolved within two years. Before the Court of
Appeals, such cases must be resolved within 1 year; and before the Regional
Trial Court and Metropolitan Trial Court, such cases must be decided within a
period of three months or ninety days.
112

Article 208

PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE

Acts Punished

Maliciously refraining from instituting prosecution against violators of the law;

Maliciously tolerating the commission of offenses.

ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES:

That the offender is a public officer or officer of the law who has a duty to cause the
prosecution of, or to prosecute offenses.

That there is dereliction of the duties of his office, that is, knowing the commission of the
crime, he does not cause (a) the prosecution of the criminal (People vs. Rosales, G.R. no.
42648) or (b) knowing that a crime is about to be committed he tolerates its commission (if
gift/promise is a consideration for his conduct: direct bribery)

That the offender acts with malice and deliberate intent to favor the violator of the law.

PREVARICACION: negligence and tolerance in the prosecution of an offense

A public officer engaged in the prosecution of offenders shall maliciously tolerate the commission
of crimes or refrain from prosecuting offenders or violators of the law.

This crime can only be committed by a public officer whose official duty is to prosecute offenders,
that is, state prosecutors. Hence, those officers who are not duty bound to perform these
obligations cannot commit this crime in the strict sense.
There must be a duty on the part of the public officer to prosecute or move for the
prosecution of the offender. Note however, that a fiscal is under no compulsion to file an
information based upon a complaint if he is not convinced that the evidence before him
does not warrant filing an action in court

When a policeman tolerates the commission of a crime or otherwise refrains from apprehending
the offender, such peace officer cannot be prosecuted for this crime but they can be prosecuted
as:

An accessory to the crime committed by the principal in accordance with Article 19, paragraph 3;
or

He may become a fence if the crime committed is robbery or theft, in which case he violates the
Anti-Fencing Law; or

He may be held liable for violating the Anti-Graft and Corrupt Practices Act.

Illustration:

The offender was caught for white slavery. The policeman allowed the offender to go free for
some consideration. The policeman does not violate Article 208 but he becomes an accessory to
the crime of white slavery.
113

But in the crime of theft or robbery, where the policeman shared in the loot and allowed the
offender to go free, he becomes a fence. Therefore, he is considered an offender under the Anti-
Fencing Law.

However, in distant provinces or municipalities where there are no municipal attorneys, the local
chief of police is the prosecuting officer. If he is the one who tolerates the violations of laws or
otherwise allows offenders to escape, he can be prosecuted under this article.

This is also true in the case of a barangay chairman. They are supposed to prosecute violators of
laws within their jurisdiction. If they do not do so, they can be prosecuted for this crime.

The crime must be proved first before an officer can be convicted of dereliction of duty

A public officer who harbors, conceals, or assists in the escape of an offender, when it is
his duty to prosecute him is liable as principal in the crime of dereliction of duty in the
prosecution of offenses. He is not an accessory

Article not applicable to revenue officers

Relative to this crime under Article 208, consider the crime of qualified bribery. Among the
amendments made by Republic Act No. 7659 on the Revised Penal Code is a new provision
which reads as follows:

Article. 211-A. Qualified Bribery If any public officer is entrusted with law enforcement and he
refrains from arresting or prosecuting an offender who has committed a crime punishable by
Reclusion Perpetua and/or death in consideration of any offer, promise, gift, or present, he shall
suffer the penalty for the offense which was not prosecuted.

If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of
death.

Actually the crime is a kind of direct bribery where the bribe, offer, promise, gift or present has a
consideration on the part of the public officer, that is refraining from arresting or prosecuting the
offender in consideration for such offer, promise, gift or present. In a way, this new provision
modifies Article 210 of the Revised Penal Code on direct bribery.
However, the crime of qualified bribery may be committed only by public officers entrusted with
enforcement whose official duties authorize then to arrest or prosecute offenders. Apparently,
they are peace officers and public prosecutors since the nonfeasance refers to arresting or
prosecuting. But this crime arises only when the offender whom such public officer refrains from
arresting or prosecuting, has committed a crime punishable by reclusion perpetua and/or death. If
the crime were punishable by a lower penalty, then such nonfeasance by the public officer would
amount to direct bribery, not qualified bribery.

If the crime was qualified bribery, the dereliction of the duty punished under Article 208 of the
Revised Penal Code should be absorbed because said article punishes the public officer who

maliciously refrains from instituting prosecution for the punishment of violators of the law or shall
tolerate the commission of offenses. The dereliction of duty referred to is necessarily included in
the crime of qualified bribery.

On the other hand, if the crime was direct bribery under Article 210 of the Revised Penal Code,
the public officer involved should be prosecuted also for the dereliction of duty, which is a crime
under Article 208 of the Revised Penal Code, because the latter is not absorbed by the crime of
direct bribery. This is because in direct bribery, where the public officer agreed to perform an act
constituting a crime in connection with the performance of his official duties, Article 210 expressly
114

provides that the liabilty thereunder shall be in addition to the penalty corresponding to the crime
agreed upon, if the crime shall have been committed.

Illustration:

A fiscal, for a sum of money, refrains from prosecuting a person charged before him. If the penalty
for the crime involved is reclusion perpetua, the fiscal commits qualified bribery. If the crime is
punishable by a penalty lower than reclusion perpetua, the crime is direct bribery.

In the latter situation, three crimes are committed: direct bribery and dereliction of duty on the
part of the fiscal; and corruption of a public officer by the giver.

Article 209

BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR

(NOT NECESSARILY A PUBLIC OFFICER ALTHOUGH ALL LAWYERS ARE

OFFICERS OF THE COURT)

ACTS PUNISHED:

Causing damage to client (prejudice is essential) either

by any malicious breach of professional duty, or

by inexcusable negligence or ignorance.

Revealing any of the secrets of his client learned by him in his professional capacity (damage
not necessary)

Undertaking the defense of the opposing party of the 1st client and/or having received
confidential information from the latter and without the latters consent
(damage not necessary)

Note: When the attorney acts with malicious abuse of his employment or inexcusable negligence
or ignorance, there must be damage to his client.

Under the rules on evidence, communications made with prospective clients to a lawyer with a
view to engaging his professional services are already privileged even though the client-lawyer
relationship did not eventually materialize because the client cannot afford the fee being asked by
the lawyer. The lawyer and his secretary or clerk cannot be examined thereon.

That this communication with a prospective client is considered privileged, implies that the same
is confidential. Therefore, if the lawyer would reveal the same or otherwise accept a case from
the adverse party, he would already be violating Article 209. Mere malicious breach without
damage is not violative of Article 209; at most he will be liable administratively as a lawyer, e.g.,
suspension or disbarment under the Code of Professional Responsibility.

Illustration:

B, who is involved in the crime of seduction wanted A, an attorney at law, to handle his case. A
received confidential information from B. However, B cannot pay the professional fee of A. C, the
offended party, came to A also and the same was accepted.

A did not commit the crime under Article 209, although the lawyers act may be considered
unethical. The client-lawyer relationship between A and B was not yet established. Therefore,
there is no trust to violate because B has not yet actually engaged the services of the lawyer A. A
is not bound to B. However, if A would reveal the confidential matter learned by him from B, then
Article 209 is violated because it is enough that such confidential matters were communicated to
115

him in his professional capacity, or it was made to him with a view to engaging his professional
services.

Here, matters that are considered confidential must have been said to the lawyer with the view of
engaging his services. Otherwise, the communication shall not be considered privileged and no
trust is violated.

Illustration:

A went to B, a lawyer/notary public, to have a document notarized. A narrated to B the detail of

the criminal case. If B will disclose what was narrated to him there is no betrayal of trust since B
is acting as a notary public and not as a counsel. The lawyer must have learned the confidential
matter in his professional capacity.

Several acts which would make a lawyer criminally liable:

Maliciously causing damage to his client through a breach of his professional duty. The breach of
professional duty must be malicious. If it is just incidental, it would not give rise to criminal liability,
although it may be the subject of administrative discipline;

Through gross ignorance, causing damage to the client;

Inexcusable negligence;

Revelation of secrets learned in his professional capacity;

Undertaking the defense of the opposite party in a case without the consent of the first client
whose defense has already been undertaken.

Note that only numbers 1, 2 and 3 must approximate malice.

A lawyer who had already undertaken the case of a client cannot later on shift to the opposing
party. This cannot be done.

Under the circumstances, it is necessary that the confidential matters or information was confided
to the lawyer in the latters professional capacity.
It is not the duty of the lawyer to give advice on the commission of a future crime. It is, therefore,
not privileged in character. The lawyer is not bound by the mandate of privilege communication if
he reports such commission of a future crime. It is only confidential information relating to crimes
already committed that are covered by the crime of betrayal of trust if the lawyer should
undertake the case of opposing party or otherwise divulge confidential information of a client.

Under the law on evidence on privileged communication, it is not only the lawyer who is protected
by the matter of privilege but also the office staff like the secretary.

The nominal liability under this article may be constituted either from breach of professional
duties in the handling of the case or it may arise out of the confidential relation between the
lawyer and the client.

Breach of professional duty

Tardiness in the prosecution of the case for which reason the case was dismissed for being non-
prosecuted; or tardiness on the part of the defense counsel leading to declaration of default and
adverse judgment.

Professional duties Lawyer must appear on time. But the client must have suffered damage due
to the breach of professional duty. Otherwise, the lawyer cannot be held liable.
116

If the prosecutor was tardy and the case was dismissed as non-prosecuted, but he filed a motion
for reconsideration which was granted, and the case was continued, the lawyer is not liable,
because the client did not suffer damage.

If lawyer was neglectful in filing an answer, and his client declared in default, and there was an
adverse judgment, the client suffered damages. The lawyer is liable.

Breach of confidential relation

Revealing information obtained or taking advantage thereof by accepting the engagement with
the adverse party. There is no need to prove that the client suffered damages. The mere breach
of confidential relation is punishable.

In a conjugal case, if the lawyer disclosed the confidential information to other people, he would
be criminally liable even though the client did not suffer any damage.

The client who was suing his wife disclosed that he also committed acts of unfaithfulness. The
lawyer talked about this to a friend. He is, thus, liable.

Article 210

DIRECT BRIBERY

ELEMENTS:

That the offender be a public officer within the scope of Art 203

That the offender accepts an offer or promise or receives a gift or present by himself or
through another

That such offer or promise be accepted or gift/present received by the public officer (mere
agreement consummates the crime)
with a view to committing some crime (delivery of consideration is not necessary) or

in consideration of an execution of an act which does not constitute a crime, but the act must
be unjust (delivery of consideration is necessary), or

to refrain from doing something which is his official duty to do

That the act which the offender agrees to perform or which he executes be connected with the
performance of his official duties

Bribery refers to the act of the receiver and the act of the giver is corruption of public official.

For purposes of this article, temporary performance of public functions is sufficient to

constitute a person a public officer.

A private person may commit this crime only in the case in which custody of prisoners is
entrusted to him

Applicable also to assessors, arbitrators, appraisal and claim commissioners, experts or

any other person performing public duties

Cannot be frustrated, only attempted or consummated.

117

Direct bribery may be committed only in the attempted and consummated stages because, in
frustrated felony, the offender must have performed all the acts of execution which would produce
the felony as a consequence. In direct bribery, it is possible only if the corruptor concurs with the
offender. Once there is concurrence, the direct bribery is already consummated. In short, the
offender could not have performed all the acts of execution to produce the felony without
consummating the same.

Actually, you cannot have a giver unless there is one who is willing to receive and there cannot
be a receiver unless there is one willing to give. So this crime requires two to commit. It cannot be
said, therefore, that one has performed all the acts of execution which would produce the felony
as a consequence but for reasons independent of the will, the crime was not committed.

It is now settled, therefore, that the crime of bribery and corruption of public officials cannot be
committed in the frustrated stage because this requires two to commit and that means a meeting
of the minds.

Illustrations:

If the public official accepted the corrupt consideration and turned it over to his superior as
evidence of the corruption, the offense is attempted corruption only and not frustrated. The official
did not agree to be corrupted.

If the public officer did not report the same to his superior and actually accepted it, he allowed
himself to be corrupted. The corruptor becomes liable for consummated corruption of public
official. The public officer also becomes equally liable for consummated bribery.

If a public official demanded something from a taxpayer who pretended to agree and use marked
money with the knowledge of the police, the crime of the public official is attempted bribery. The
reason is that because the giver has no intention to corrupt her and therefore, he could not
perform all the acts of execution.

Be sure that what is involved is a crime of bribery, not extortion. If it were extortion, the crime is
not bribery, but robbery. The one who yielded to the demand does not commit corruption of a
public officer because it was involuntary.

Bribery exists when the gift is:

voluntarily offered by a private person

solicited by the public officer and voluntarily delivered by the private person

solicited by the public officer but the private person delivers it out of fear of the
consequences should the public officer perform his functions (here the crime by giver is
not corruption of public officials due to involuntariness)

Actual receipt of the gift is not only if acts constitutes a crime necessary. An accepted
offer or promise of a gift is sufficient. However, if the offer is not accepted, only the
person offering the gift is liable for attempted corruption of a public officer

The gift must have a value or capable of pecuniary estimation. It could be in the form of
money, property or services

If the act required of the public officer amounts to a crime and he commits it, he shall be
liable for the penalty corresponding to the crime in addition to the penalty for bribery
118

In direct bribery, consider whether the official act, which the public officer agreed to do, is a crime
or not.

If it will amount to a crime, it is not necessary that the corruptor should deliver the consideration
or the doing of the act. The moment there is a meeting of the minds, even without the delivery of
the consideration, even without the public officer performing the act amounting to a crime, bribery
is already committed on the part of the public officer. Corruption is already committed on the part
of the supposed giver. The reason is that the agreement is a conspiracy involving the duty of a
public officer. The mere agreement is a felony already.

If the public officer commits the act which constitutes the crime, he, as well as the corruptor shall
be liable also for that other crime.

Illustrations:

If the corruptor offers a consideration to a custodian of a public record to remove certain files, the
mere agreement, without delivery of the consideration, brings about the crime of direct bribery
and corruption of public official.

If the records were actually removed, both the public officer and the corruptor will in addition to
the two felonies above, will also be liable for the crime committed, which is infidelity in the custody
of the public records for which they shall be liable as principals; one as principal by inducement,
the other as principal by direct participation.

A party litigant approached the courts stenographer and proposed the idea of altering the
transcript of stenographic notes. The court stenographer agreed and he demanded P 2,000.00.

Unknown to them, there were law enforcers who already had a tip that the court stenographer
had been doing this before. So they were waiting for the chance to entrap him. They were
apprehended and they said they have not done anything yet.

Under Article 210, the mere agreement to commit the act, which amounts to a crime, is already
bribery. That stenographer becomes liable already for consummated crime of bribery and the
party who agreed to give that money is already liable for consummated corruption, even though
not a single centavo is delivered yet and even though the stenographer had not yet made the
alterations.

If he changed the transcript, another crime is committed: falsification.

The same criterion will apply with respect to a public officer who agrees to refrain from performing
his official duties. If the refraining would give rise to a crime, such as refraining to prosecute an
offender, the mere agreement to do so will consummate the bribery and the corruption, even if no
money was delivered to him. If the refraining is not a crime, it would only amount to bribery if the
consideration be delivered to him.

If it is not a crime, the consideration must be delivered by the corruptor before a public officer
can be prosecuted for bribery. Mere agreement, is not enough to constitute the crime because
the act to be done in the first place is legitimate or in the performance of the official duties of the
public official.

Unless the public officer receives the consideration for doing his official duty, there is no bribery.

It is necessary that there must be delivery of monetary consideration. This is so because in the
second situation, the public officer actually performed what he is supposed to perform. It is just
that he would not perform what he is required by law to perform without an added consideration
from the public which gives rise to the crime.
119

The idea of the law is that he is being paid salary for being there. He is not supposed to demand
additional compensation from the public before performing his public service. The prohibition will
apply only when the money is delivered to him, or if he performs what he is supposed to perform in
anticipation of being paid the money.

Here, the bribery will only arise when there is already the acceptance of the consideration because
the act to be done is not a crime. So, without the acceptance, the crime is not committed.

The third type of bribery and prevaricacion (art 208) are similar offenses, both consisting of
omissions to do an act required to be performed. In direct bribery however, a gift or
promise is given in consideration of the omission. This is not necessary in prevaricacion

Distinction between direct bribery and indirect bribery

Bribery is direct when a public officer is called upon to perform or refrain from performing an official
act in exchange for the gift, present or consideration given to him.

If he simply accepts a gift or present given to him by reason of his public position, the crime is
indirect bribery. Bear in mind that the gift is given "by reason of his office", not "in consideration"
thereof. So never use the term consideration. The public officer in Indirect bribery is not to perform
any official act.

Note however that what may begin as an indirect bribery may actually ripen into direct bribery.

Illustration:

Without any understanding with the public officer, a taxi operator gave an expensive suiting material
to a BLT registrar. Upon receipt by the BLT registrar of his valuable suiting material, he asked who
the giver was. He found out that he is a taxi operator. As far as the giver is concerned, he is giving
this by reason of the office or position of the public officer involved. It is just indirect bribery

If the BLT registrar calls up his subordinates and said to take care of the taxis of the taxi operator so
much so that the registration of the taxis is facilitated ahead of the others, what originally would
have been indirect bribery becomes direct bribery.

Bribery (210)

Robbery (294)
When the victim has committed a

When the victim did not commit a crime and he

crime and gives money/gift to avoid

is intimidated with arrest and/or prosecution to

arrest or prosecution.

deprive him of his personal property.

Victim parts with his money or

Victim is deprived of his money or property by

property voluntarily.

force or intimidation.

Robbery should be distinguished from Bribery where a law enforcer, say a policeman, extorts
money from a person, employing intimidation and threatening to arrest the latter if he will not come
across with money may be guilty of Robbery (Article 294, par. 5) or Bribery (Article 210). If the
victim actually committed a crime, and the policeman demanded money so he will not be arrested,
the crime is Bribery. But if no crime has been committed and the policeman is falsely charging him
of having committed one, threatening to arrest him if he will not come across with some
consideration, the crime is Robbery.

Article 211

INDIRECT BRIBERY
120

ELEMENTS:

That the offender is a public officer.

That he accepts gifts.

That the said gifts are offered to him by reason of his office.

The gift is given in anticipation of future favor from the public officer

Indirect bribery, the public officer receives or accepts gifts, money or

anything of value by reason of his office. If there is only a promise of a gift or
money, no crime is committed because of the language of the law which uses
the phrase shall accept gifts.

There must be clear intention on the part of the public officer to take the gift offered and
consider the property as his own for that moment. Mere physical receipt unaccompanied
by any other sign, circumstance or act to show such acceptance is not sufficient to
convict the officer

The Supreme Court has laid down the rule that for indirect bribery to be committed, the public
officer must have performed an act of appropriating of the gift for himself, his family or
employees. It is the act of appropriating that signifies acceptance. Merely delivering the gift to the
public officer does not bring about the crime. Otherwise it would be very easy to remove a public
officer: just deliver a gift to him.

There is no attempted or frustrated indirect bribery

The principal distinction between direct and indirect bribery is that in the former, the
officer agrees to perform or refrain from doing an act in consideration of the gift or
promise. In the latter case, it is not necessary that the officer do any act. It is sufficient
that he accepts the gift offered by reason of his office

Public officers receiving gifts and private persons giving gifts on any occasion, including
Christmas are liable under PD 46.
The criminal penalty or imprisonment is distinct from the administrative penalty of
suspension from the service

Article 211-A

QUALIFIED BRIBERY

ELEMENTS:

Public officer entrusted with law enforcement

Refrains from arresting/prosecuting offender for crime punishable by reclusion perpetua

and/or death

(if lower penalty than stated above, the crime is direct bribery)

c. In consideration of any offer, promise or gift

Note that the penalty is DEATH if the public officer is the one who asks or demands such present.

He need not receive the gift or present because a mere offer or promise is sufficient.
121

Article 212

CORRUPTION OF PUBLIC OFFICIALS

ELEMENTS:

That the offender makes offers or promises or gives gifts or present to a public officer.

That the offers or promises are made or the gifts or presents given to a public officer, under
circumstances that will make the public officer liable for direct bribery or indirect bribery

The offender is the giver of the gift or the offeror of the promise. The act may or may not
be accomplished

Presidential Decree No. 46

Presidential Decree No. 46 prohibits giving and acceptance of gifts by a public officer or to a
public officer, even during anniversary, or when there is an occasion like Christmas, New Year, or
any gift-giving anniversary. The Presidential Decree punishes both receiver and giver.

The prohibition giving and receiving gifts given by reason of official position, regardless of
whether or not the same is for past or future favors.

The giving of parties by reason of the promotion of a public official is considered a crime even
though it may call for a celebration. The giving of a party is not limited to the public officer only but
also to any member of his family.

Presidential Decree No. 749

The decree grants immunity from prosecution to a private person or public officer who shall
voluntarily give information and testify in a case of bribery or in a case involving a violation of the
Anti-graft and Corrupt Practices Act.

It provides immunity to the bribe-giver provided he does two things:

He voluntarily discloses the transaction he had with the public officer constituting direct or indirect
bribery, or any other corrupt transaction;

He must willingly testify against the public officer involved in the case to be filed against the latter.

Before the bribe-giver may be dropped from the information, he has to be charged first with the
receiver. Before trial, prosecutor may move for dropping bribe-giver from information and be
granted immunity. But first, five conditions have to be met:

Information must refer to consummated bribery;

Information is necessary for the proper conviction of the public officer involved;

That the information or testimony to be given is not yet in the possession of the government or
known to the government;

That the information can be corroborated in its material points;

122

That the informant has not been convicted previously for any crime involving moral turpitude.

These conditions are analogous to the conditions under the State Witness Rule under Criminal
Procedure.

The immunity granted the bribe-giver is limited only to the illegal transaction where the informant
gave voluntarily the testimony. If there were other transactions where the informant also
participated, he is not immune from prosecution. The immunity in one transaction does not extend
to other transactions.

The immunity attaches only if the information given turns out to be true and correct. If the same is
false, the public officer may even file criminal and civil actions against the informant for perjury
and the immunity under the decree will not protect him.

Republic Act No. 7080 (Plunder)

Plunder is a crime defined and penalized under Republic Act No. 7080, which became effective in

1991. This crime somehow modified certain crimes in the Revised Penal Code insofar as the
overt acts by which a public officer amasses, acquires, or accumulates ill-gotten wealth are
felonies under the Revised Penal Code like bribery (Articles 210, 211, 211-A), fraud against the
public treasury [Article 213], other frauds (Article 214), malversation (Article 217), when the ill-
gotten wealth amounts to a total value of P50,000,000.00. The amount was reduced from
P75,000,000.00 by Republic Act No. 7659 and the penalty was changed from life imprisonment to
reclusion perpetua to death.

Short of the amount, plunder does not arise. Any amount less than P50,000,000.00 is a violation
of the Revised Penal Code or the Anti-Graft and Corrupt Practices Act.

Under the law on plunder, the prescriptive period is 20 years commencing from the time of the
last overt act.

Plunder is committed through a combination or series of overt acts:

Through misappropriation, conversion, misuse, or malversation of public funds or raids on the

public treasury;
By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any
other form of pecuniary benefit from any person and/or entity in connection with any government
contract or project by reason of the office or position of the public officer;

By illegal or fraudulent conveyance or disposition of asset belonging to the national government

or any of its subdivisions, agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries;

By obtaining, receiving, or accepting directly or indirectly any shares of stock, equity or any other
form of interest or participation including the promise of future employment in any business or
undertaking;

By establishing agricultural, industrial, or commercial monopolies or other combinations and/or

implementations of decrees and orders intended to benefit particular persons or special interests;
or

By taking undue advantage of official position, authority, relationship, connection or influence to

unjustly enrich himself or themselves at the expense and to the damage and prejudice of the
Filipino people, and the Republic of the Philippines.
123

While the crime appears to be malum prohibitum, Republic Act No. 7080 provides that in the
imposition of penalties, the degree of participation and the attendance of mitigating and
aggravating circumstances shall be considered by the court.

ANTI-GRAFT AND CORRUPT PRACTICES ACT

RA 3019

Persons Liable:

Any public officer who shall perform any of the following acts:

Persuading, inducing or influencing another public officer to perform an act constituting a

violation of rules and regulations duly promulgated by competent authority or an offense
in connection with the official duties of the latter, or allowing himself to be persuaded,
induced, or influenced to commit such violation or offense.

Directly or indirectly requesting or receiving any gift, present, share, percentage, or

benefit for himself or for any other person in connection with any contract or transaction
between the government and any other party wherein the public officer in his official
capacity has to intervene under the law.

Directly, or indirectly requesting or receiving any gift, present, or other pecuniary or

material benefit, for himself or for another, from any person for whom the public officer, in
any manner of capacity, has secured or obtained, or will secure or obtain, any
Government permit or license, in consideration for the held given or to be given.

Accepting or having any member of his family accept employment in a private enterprise
which has pending official business with him during the pendency thereof or within one
year after its termination.

Causing any undue injury to any party, including the Government, or giving any private
party any unwarranted benefits, advantage, or preference in the discharge of his official,
administrative or judicial function through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other
concessions.
Neglecting or refusing, after due demand or request, without sufficient justification, to act
within a reasonable time on any matter pending before him for the purpose of obtaining
directly or indirectly, from any person interested in the matter some pecuniary or material
benefit or advantage, or for the purpose of favoring his own interest of giving undue
advantage in favor of or discriminating against any other interested party.

Entering, on behalf of the Government, into any contract or transaction manifestly and
grossly disadvantageous to the same, whether or not the public officer profited or will
profit thereby.

Directly or indirectly having financial or pecuniary interest in any business, contract or

transaction in connection with which he intervenes or take part in his official capacity, or
in which he is prohibited by the constitution or by any law from having any interest.
124

Directly or indirectly becoming interested, for personal gain, or having a material interest
in any transaction or act requiring the approval of a board, panel, or group of which he is
a member, and which exercises discretion in such approval, even if he votes against the
same or does not participate in the action of the board, committee, panel or group.

Knowingly approving or granting any license, permit, privilege, or benefit in favor of any
person not qualified for or not legally entitled to such license, permit, privilege, or
advantage, or of a mere representative or dummy of one who is not so qualified or
entitled.

Divulging valuable information of a confidential character, acquired by his office or by

him on account of his official position to unauthorized persons, or releasing such
information in advance of its authorized release date.

Any person having family or close personal relation with any public official who shall
capitalize or exploit or take advantage of such family or close personal relation by
directly or indirectly requesting or receiving any present, gift, or material, or pecuniary
advantage from any person having some business, transaction, application, request, or
contact with the government in which such public official has to intervene (Sec. 4)

Any person who shall knowingly induce or cause any public official to commit any of the
offenses under (A). (Sec. 4)

Spouse or any relative, by consanguinity or affinity, within the 3rd civil degree, of the
president of the Philippines, the vice-president, the president of the Senate, or speaker
of the house of Representatives, who shall intervene, directly or indirectly, in any
business transaction, contract or application with the govt (Sec. 5).

This prohibition shall not apply to:

Any person who, prior to the assumption of office of any of the above officials to whom
he is related, has been already dealing with the govt along the same line of business;

Any transaction, contract or application already existing or pending at the time of such
assumption of public office;
Any application filed by him, the approval of which is not discretionary on the part of the
official(s) concerned but depends upon compliance with requisites provided by law, or
rules or regulations issued pursuant to law;

Any act lawfully performed an official capacity or in the exercise of a profession.

Any member of congress, during the term for which he has been elected, who shall
acquire or receive any personal pecuniary interest in any specific business enterprise
which shall be directly and particularly favored or benefited by any law or resolution
authored by him previously approved or adopted by Congress during his term.

Any public officer who shall fail to file a true, detailed and sworn statement of assets and
liabilities within 30 days after assuming office and thereafter on or
125

before the 15th day of April following the close of every calendar year, as well as upon
the expiration of his term of office, or upon his resignation or separation from office (Sec.
7).

Prima Facie Evidence of and Dismissal due to unexplained Wealth (Sec. 8)

If a public official has been found to have acquired during his incumbency, whether in his
name or in the name of other persons, an amount of property and/or money manifestly
out of proportion to his salary and to his other lawful income.

Properties in the name of the spouse and dependents of such public official may be
taken into consideration, when their acquisition through legitimate means cannot be
satisfactorily shown.

Bank deposits in the name of or manifestly excessive expenditures incurred by the

public official, his spouse or any of their dependents including but not limited to activities
in any club or association or any ostentatious display of wealth including frequent travel
abroad of a non-official character by any public official when such activities entail
expenses evidently out of proportion to legitimate income.

III. Competent court: All prosecutions under this Act shall be within the original
jurisdiction of the

Sandiganbayan (Sec. 10).

In case none of the principal accused are occupying positions corresponding

to salary grade 27 or higher; PNP officers occupying the rank of
superintendent or higher of their equivalent, exclusive jurisdiction over the
case shall be vested in the proper Regional Trial Court, Metropolitan Trial
Court and Municipal Circuit Trial Court as the case may be. The decision of the
court in these cases shall be appealable to the Sandiganbayan which
exercises exclusive appellate jurisdiction over them.

IV. Prescription of offenses: all offenses punishable under this Act shall prescribe in 15
years (Sec. 11).
V. Exceptions: Unsolicited gifts or presents of small or insignificant value offered or
given as a mere ordinary token of gratitude of friendship according to local customs or
usage, shall be excepted from the provisions of this act (Sec. 14).

Once the case is filed with the Sandiganbayan, by express provision of the
law, it becomes incumbent upon the court to place under preventive
suspension the public officer who stands accused before it. However, before
the order of suspension is issued, it is necessary that a pre-suspension
hearing be held by the court wherein the accused is afforded the opportunity
to challenge the validity of the information filed against him.

Such right of the accused to challenge the validity of the information covers
(a) the right to challenge the sufficiency of the recitals of the information vis-
-vis the essential elements of the offense as defined by substantive law; (b)
the right to challenge the validity of the criminal proceedings leading to the
filing of the information, i.e., that he has not been afforded the right of due
preliminary investigation, or that the acts for which he stands charged do not
constitute a violation of the provisions of R.A. No. 3019, which would warrant
his mandatory suspension from office under Section 13 of this Act; and (c) the
right to raise the issue that the information can be quashed under any of the
grounds provided in Section 2, Rule 117 of the Rules of Court (People vs. Albano,
163

SCRA 511).
126

Once the information is found to be sufficient in form and substance, the

court must issue the suspension order as a matter of course and there are no
ifs and buts about it

(Bayot vs. Sandiganbayan, et al., 128 SCRA 383).

Preventive suspension is resorted to in order to prevent the accused from

using his office to intimidate witnesses or frustrate his prosecution or
continue committing malfeasance in office because the presumption is that
unless the accused is suspended, he may frustrate his prosecution to commit
further acts of malfeasance or both (Bayot vs. Sandiganbayan, et al., supra).

When the administrative case against the officer or employee under

preventive suspension is not finally disposed of by the disciplining authority
within the period of ninety (90) days after the date of suspension of the
respondent who is not a presidential appointee, the respondent shall be
automatically reinstated in the service: Provided, That when the delay in the
disposition of the case is due to the fault, negligence or petition of the
respondent, the period of delay shall not be counted in computing the period
of suspension herein provided.(Segovia vs. Sandiganbayan)

ORTEGA NOTES:

The mere act of a public officer demanding an amount from a taxpayer to whom he is to render
public service does not amount to bribery, but will amount to a violation of the Anti-graft and

Corrupt Practices Act.

Illustration:

A court secretary received P500 .00 from a litigant to set a motion for an early hearing. This is
direct bribery even if the act to be performed is within his official duty so long as he received a
consideration therefor.
If the secretary persuaded the judge to make a favorable resolution, even if the judge did not do
so, this constitutes a violation of Anti-Graft and Corrupt Practices Act, Sub-Section A.

Under the Anti-Graft and Corrupt Practices Act, particularly Section 3, there are several acts
defined as corrupt practices. Some of them are mere repetitions of the act already penalized
under the Revised Penal Code, like prohibited transactions under Article 215 and 216. In such a
case, the act or omission remains to be mala in se.

But there are acts penalized under the Anti-Graft and Corrupt Practices Act which are not
penalized under the Revised Penal Code. Those acts may be considered as mala prohibita.

Therefore, good faith is not a defense.

Illustration:

CATCH ALL PROVISION

Section 3 (e) of the Anti-Graft and Corrupt Practices Act causing undue injury to the government
or a private party by giving unwarranted benefit to the party whom does not deserve the same.

In this case, good faith is not a defense because it is in the nature of a malum prohibitum.
Criminal intent on the part of the offender is not required. It is enough that he performed the
prohibited act voluntarily. Even though the prohibited act may have benefited the government.

The crime is still committed because the law is not after the effect of the act as long as the act is
prohibited.

Section 3 (g) of the Anti-Graft and Corrupt Practices Act where a public officer entered into a
contract for the government which is manifestly disadvantageous to the government even if he
127

did not profit from the transaction, a violation of the Anti-Graft and Corrupt Practices Act is
committed.

If a public officer, with his office and a private enterprise had a transaction and he allows a relative
or member of his family to accept employment in that enterprise, good faith is not a defense
because it is a malum prohibitum. It is enough that that the act was performed.

Where the public officer is a member of the board, panel or group who is to act on an application
of a contract and the act involved one of discretion, any public officer who is a member of that
board, panel or group, even though he voted against the approval of the application, as long as
he has an interest in that business enterprise whose application is pending before that board,
panel or group, the public officer concerned shall be liable for violation of the Anti-Graft and

Corrupt Practices Act. His only course of action to avoid prosecution under the Anti-graft and

Corrupt Practices Act is to sell his interest in the enterprise which has filed an application before
that board, panel or group where he is a member. Or otherwise, he should resign from his public
position.

Illustration:

Sen. Dominador Aytono had an interest in the Iligan Steel Mills, which at that time was being
subject of an investigation by the Senate Committee of which he was a chairman. He was
threatened with prosecution under Republic Act No. 3019 so he was compelled to sell all his
interest in that steel mill; there is no defense. Because the law says so, even if he voted against
it, he commits a violation thereof.

These cases are filed with the Ombudsman and not with the regular prosecutors office.

Jurisdiction is exclusively with the Sandiganbayan. The accused public officer must be suspended
when the case is already filed with the Sandiganbayan.

Under the Anti-Graft and Corrupt Practices Act, the public officer who is accused should not be
automatically suspended upon the filing of the information in court. It is the court which will order
the suspension of the public officer and not the superior of that public officer. As long as the court
has not ordered the suspension of the public officer involved, the superior of that public officer is
not authorized to order the suspension simply because of the violation of the Anti-Graft and
Corrupt Practices Act. The court will not order the suspension of the public officer without first
passing upon the validity of the information filed in court. Without a hearing, the suspension would
be null and void for being violative of due process.
Illustration:

A public officer was assigned to direct traffic in a very busy corner. While there, he caught a thief
in the act of lifting the wallet of a pedestrian. As he could not leave his post, he summoned a
civilian to deliver the thief to the precinct. The civilian agreed so he left with the thief. When they
were beyond the view of the policeman, the civilian allowed the thief to go home. What would be
the liability of the public officer?

The liability of the traffic policeman would be merely administrative. The civilian has no liability at
all.

Firstly, the offender is not yet a prisoner so there is no accountability yet. The term prisoner
refers to one who is already booked and incarcerated no matter how short the time may be.

The policeman could not be said as having assisted the escape of the offender because as the
problem says, he is assigned to direct traffic in a busy corner street. So he cannot be considered
as falling under the third 3rd paragraph of Article 19 that would constitute his as an accessory.

The same is true with the civilian because the crime committed by the offender, which is
snatching or a kind of robbery or theft as the case may be, is not one of those crimes mentioned
under the third paragraph of Article 19 of the Revised Penal Code.

Where the public officer is still incumbent, the prosecution shall be with the Ombudsman.
128

Where the respondent is separated from service and the period has not yet prescribed, the
information shall be filed in any prosecutions office in the city where the respondent resides. The
prosecution shall file the case in the Regional Trial Court unless the violation carries a penalty
higher than prision correccional, in which case the Sandiganbayan has jurisdiction.

The fact that the government benefited out of the prohibited act is no defense at all, the violation
being mala prohibita.

Section 3 (f) of the Anti-Graft and Corrupt Practices Act where the public officer neglects or
refuses to act on a matter pending before him for the purpose of obtaining any pecuniary or
material benefit or advantage in favor of or discriminating against another interested party.

The law itself additionally requires that the accuseds dereliction, besides being without
justification, must be for the purpose of obtaining from any person interested in the matter some
pecuniary or material benefit or for the purpose of favoring any interested party, or discriminating
against another interested party. This element is indispensable.

In other words, the neglect or refusal to act must motivated by gain or benefit, or purposely to
favor the other interested party as held in Coronado v. SB, decided on August 18, 1993.

Republic Act No. 1379 (Forfeiture of Ill-gotten Wealth)

Correlate with RA 1379 -- properly under Remedial Law. This provides the procedure for forfeiture
of the ill-gotten wealth in violation of the Anti-Graft and Corrupt Practices Act. The proceedings
are civil and not criminal in nature.

Any taxpayer having knowledge that a public officer has amassed wealth out of proportion to this
legitimate income may file a complaint with the prosecutors office of the place where the public
officer resides or holds office. The prosecutor conducts a preliminary investigation just like in a
criminal case and he will forward his findings to the office of the Solicitor General. The Solicitor

General will determine whether there is reasonable ground to believe that the respondent has
accumulated an unexplained wealth.

If the Solicitor General finds probable cause, he would file a petition requesting the court to issue
a writ commanding the respondent to show cause why the ill-gotten wealth described in the
petition should not be forfeited in favor of the government. This is covered by the Rules on Civil
Procedure. The respondent is given 15 days to answer the petition. Thereafter trial would
proceed. Judgment is rendered and appeal is just like in a civil case. Remember that this is not a
criminal proceeding. The basic difference is that the preliminary investigation is conducted by the
prosecutor.

FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS

Article 213

FRAUDS AGAINST PUBLIC TREASURY

ELEMENTS: (par. 1)

That the offender be a public officer.

That he should have taken advantage of his office, that is, he intervened in the transaction in
his official capacity.
129

That he entered into an agreement with any interested party or speculator or made use of any
other scheme with regard to (a) furnishing supplies (b) the making of contracts, or (c) the
adjustment or settlement of account relating to a public property or funds.

That the accused had intent to defraud the government.

Notes:

The public officer must act in his official capacity

The felony is consummated by merely entering into an agreement with any interested
party or speculator or by merely making use of any scheme to defraud the Government

The essence of this crime is making the government pay for something not received or making it
pay more than what is due. It is also committed by refunding more than the amount which should
properly be refunded. This occurs usually in cases where a public officer whose official duty is to
procure supplies for the government or enter into contract for government transactions, connives
with the said supplier with the intention to defraud the government. Also when certain supplies for
the government are purchased for the high price but its quantity or quality is low.

Not all frauds will constitute this crime. There must be no fixed allocation or amount on the matter
acted upon by the public officer.

The allocation or outlay was made the basis of fraudulent quotations made by the public officer
involved.

For example, there was a need to put some additional lighting along a street and no one knows
how much it will cost. An officer was asked to canvass the cost but he connived with the seller of
light bulbs, pricing each light bulb at P550.00 instead of the actual price of P500.00. This is a
case of fraud against public treasury.

If there is a fixed outlay of P20,000.00 for the lighting apparatus needed and the public officer
connived with the seller so that although allocation was made a lesser number was asked to be
delivered, or of an inferior quality, or secondhand. In this case there is no fraud against the public
treasury because there is a fixed allocation. The fraud is in the implementation of procurement.

That would constitute the crime of other fraud in Article 214, which is in the nature of swindling
or estafa.
Be sure to determine whether fraud is against public treasury or one under Article 214.

ILLEGAL EXACTIONS (par 2)

ELEMENTS:

The offender is a public officer entrusted with the collection of taxes, licenses, fees and other
imposts.

He is guilty of any of the following acts or omissions:

demanding, directly or indirectly the payment of sums different from or larger than those
authorized by law, or

failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him
officially, or
130

Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects

of a nature different from that provided by law.

Notes:

This can only be committed principally by a public officer whose official duty is to collect taxes,
license fees, import duties and other dues payable to the government.

Not any public officer can commit this crime. Otherwise, it is estafa. Fixers cannot commit this
crime unless he conspires with the public officer authorized to make the collection.

The essence of the crime is not misappropriation of any of the amounts but the improper making
of the collection which would prejudice the accounting of collected amounts by the government.

Mere demand of a larger or different amount is sufficient to consummate the crime. The
essence is the improper collection (damage to govt is not required)

On the first form of illegal exaction

In this form, mere demand will consummate the crime, even if the taxpayer shall refuse to come
across with the amount being demanded. That will not affect the consummation of the crime.

In the demand, it is not necessary that the amount being demanded is bigger than what is
payable to the government. The amount being demanded maybe less than the amount due the
government.

If sums are received without demanding the same, a felony under this article is not
committed. However, if the sum is given as a sort of gift or gratification, the crime is
indirect bribery

When there is deceit in demanding larger fees, the crime committed is estafa

May be complexed with malversation

Note that this is often committed with malversation or estafa because when a public officer shall
demand an amount different from what the law provides, it can be expected that such public
officer will not turn over his collection to the government.

Illustrations:

A taxpayer goes to the local municipal treasurer to pay real estate taxes on his land. Actually,
what is due the government is P400.00 only but the municipal treasurer demanded P500.00. By
that demand alone, the crime of illegal exaction is already committed even though the taxpayer
does not pay the P500.00.

Suppose the taxpayer came across with P500.00. But the municipal treasurer, thinking that he
would abstract the P100.00, issued a receipt for only P400.00. The taxpayer would naturally ask
the municipal treasurer why the receipt was only for P400.00. The treasurer answered that the
P100.00 is supposed to be for documentary stamps. The taxpayer left.

He has a receipt for P400.00. The municipal treasurer turned over to the government coffers
P400.00 because that is due the government and pocketed the P100.00.

The mere fact that there was a demand for an amount different from what is due the government,
the public officer already committed the crime of illegal exaction.
131

On the P100.00 which the public officer pocketed, will it be malversation or estafa?

In the example given, the public officer did not include in the official receipt the P100.00 and,
therefore, it did not become part of the public funds. It remained to be private. It is the taxpayer
who has been defrauded of his P100.00 because he can never claim a refund from the
government for excess payment since the receipt issued to him was only

P400.00 which is due the government. As far as the P100.00 is concerned, the crime committed
is estafa.

A taxpayer pays his taxes. What is due the government is P400.00 and the public officer issues a
receipt for P500.00 upon payment of the taxpayer of said amount demanded by the public officer
involved. But he altered the duplicate to reflect only P400.00 and he extracted the difference of
P100.00.

In this case, the entire P500.00 was covered by an official receipt. That act of covering the whole
amount received from the taxpayer in an official receipt will have the characteristics of becoming
a part of the public funds. The crimes committed, therefore, are the following:

Illegal exaction for collecting more than he is authorized to collect. The mere act of demanding
is enough to constitute this crime.

Falsification because there was an alteration of official document which is the duplicate of the
official receipt to show an amount less than the actual amount collected.

Malversation because of his act of misappropriating the P100.00 excess which was covered by
an official receipt already, even though not payable to the government. The entire P500.00 was
covered by the receipt, therefore, the whole amount became public funds. So when he
appropriated the P100 for his own benefit, he was not extracting private funds anymore but public
funds.

Should the falsification be complexed with the malversation?

As far as the crime of illegal exaction is concerned, it will be the subject of separate accusation
because there, the mere demand regardless of whether the taxpayer will pay or not, will already
consummate the crime of illegal exaction. It is the breach of trust by a public officer entrusted to
make the collection which is penalized under such article. The falsification or alteration made on
the duplicate can not be said as a means to commit malversation. At most, the duplicate was
altered in order to conceal the malversation. So it cannot be complexed with the malversation.
It cannot also be said that the falsification is a necessary means to commit the malversation
because the public officer can misappropriate the P100.00 without any falsification. All that he has
to do is to get the excess of P100.00 and misappropriate it.

So the falsification is a separate accusation.

However, illegal exaction may be complexed with malversation because illegal exaction is a
necessary means to be able to collect the P100.00 excess which was malversed.

In this crime, pay attention to whether the offender is the one charged with the collection of the
tax, license or impost subject of the misappropriation. If he is not the one authorized by
disposition to do the collection, the crime of illegal exaction is not committed.

If it did not give rise to the crime of illegal exaction, the funds collected may not have become part
of the public funds. If it had not become part of the public funds, or had not become impressed
with being part of the public funds, it cannot be the subject of malversation. It will give rise to
estafa or theft as the case may be.
132

The Municipal Treasurer demanded P500.00 when only P400.00 was due. He issued the receipt
at P400.00 and explained to taxpayer that the P100 was for documentary stamps. The Municipal
Treasurer placed the entire P500.00 in the vault of the office. When he needed money, he took
the P100.00 and spent it.

The following crimes were committed:

Illegal exaction for demanding a different amount;

Estafa for deceiving the taxpayer; and

Malversation for getting the P100.00 from the vault.

Although the excess P100.00 was not covered by the Official Receipt, it was commingled with the
other public funds in the vault; hence, it became part of public funds and subsequent extraction
thereof constitutes malversation.

Note that numbers 1 and 2 are complexed as illegal exaction with estafa, while in number 3,
malversation is a distinct offense.

The issuance of the Official Receipt is the operative fact to convert the payment into public funds.

The payor may demand a refund by virtue of the Official Receipt.

In cases where the payor decides to let the official to keep the change, if the latter should
pocket the excess, he shall be liable for malversation. The official has no right but the
government, under the principle of accretion, as the owner of the bigger amount becomes the
owner of the whole.

On the second form of illegal exaction

The act of receiving payment due the government without issuing a receipt will give rise to illegal
exaction even though a provisional receipt has been issued. What the law requires is a receipt in
the form prescribed by law, which means official receipt.
Illustration:

If a government cashier or officer to whom payment is made issued a receipt in his own private
form, which he calls provisional, even though he has no intention of misappropriating the amount
received by him, the mere fact that he issued a receipt not in the form prescribed by law, the
crime of illegal exaction is committed. There must be voluntary failure to issue the Official
Receipt.

On the third form of illegal exaction

Under the rules and regulations of the government, payment of checks not belonging to the
taxpayer, but that of checks of other persons, should not be accepted to settle the obligation of
that person.

Illustration:

A taxpayer pays his obligation with a check not his own but pertaining to another. Because of that,
the check bounced later on.

The crime committed is illegal exaction because the payment by check is not allowed if the check
does not pertain to the taxpayer himself, unless the check is a managers check or a certified
check, amended already as of 1990. (See the case of Roman Catholic.)
133

Under Article 213, if any of these acts penalized as illegal exaction is committed by those
employed in the Bureau of Customs or Bureau of Internal Revenue, the law that will apply to them
will be the Revised Administrative Code or the Tariff and Customs Code or National Revenue
Code.

This crime does not require damage to the government.

Officers and employees of the BIR or Customs are not covered by the article.

The NIRC or Administrative Code is the applicable law

These officers are authorized to make impositions and to enter into compromises. Because of this
discretion, their demanding or collecting different from what is necessary is legal

Article 214

OTHER FRAUDS

ELEMENTS:

That the offender is a public officer.

That he takes advantage of his official position.

That he commits any of the frauds or deceits enumerated in art. 315 to 318. (estafa;
swindling)

Note: RTC has jurisdiction over the offense because the principal penalty is
disqualification
Article 215

PROHIBITED TRANSACTIONS

ELEMENTS:

That the offender is an appointive public officer.

That he becomes interested, directly or indirectly, in any transaction of exchange or

speculation.

That the transaction takes place within the territory subject to his jurisdiction.

That he becomes interested in the transaction during his incumbency.

Notes:

Examples of transactions of exchange or speculation are: buying and selling stocks,

commodities, land etc wherein one hopes to take advantage of an expected rise or fall in
price

Purchasing of stocks or shares in a company is simple investment and not a violation of

the article. However, regularly buying securities for resale is speculation

Article 216

POSSESSION OF PROHIBITED INTERESTS BY A PUBLIC OFFICER

134

Who are liable:

Public officer in any contract or business in which it is his official duty to intervene.

Experts, arbitrators and private accountants in any contract or transaction connected with
the estate or property in the approval, distribution or adjudication of which they had
acted.

Guardians and executors with respect to property belonging to their wards or the estate.

Notes:

Actual fraud is not necessary.

Act is punished because of the possibility that fraud may be committed or that the officer
may place his own interest above that of the Government or party which he represents

The mere violation of the prohibition is already punished even if no actual

fraud occurs because of the possibility that fraud may be committed or that
the officer may place his own interest above that of the government or party
he represents. (U. S. vs. Udarbe, 28

Phil. 383)

Section 14, Article VI of the Constitution

No Senator or Member of the House of Representatives may personally appear as counsel

before any court of justice or before the Electoral Tribunals, or quasi-judicial and other
administrative bodies. Neither shall he, directly or indirectly, be interested financially in any
contract with, or in any franchise or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary, during his term of office. He shall not intervene in any matter before
any office of the government for his pecuniary benefit or where he may be called upon to act on
account of his office.

Section 13, Article VII of the Constitution

The President, Vice-President, the Members of the Cabinet and their deputies or assistant shall
not, unless otherwise provided in this Constitution, hold any other office or employment during
their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.

Section 2, Article IX-A of the Constitution

No member of a Constitutional Commission shall, during his tenure, hold any office or
employment. Neither shall he engage in the practice of any profession or in the active
management or control of any business which in any way may be affected by the functions of his
office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations or their subsidiaries.
135

MALVERSATION OF PUBLIC FUNDS OR PROPERTY

Article 217

MALVERSATION OF PUBLIC FUNDS OR PROPERTY

ELEMENTS COMMON TO ALL ACTS MALVERSATION OF PUBLIC FUNDS OR

PROPERTY :

That the offender be a public officer (or private person if entrusted with public funds or
connived with public officers)

That he had the custody or control of funds or property (if not accountable for the funds,
theft or qualified theft)

That those funds or property were public funds or property (even if private funds if attached,
seized, deposited or commingled with public funds)

That he:

Appropriated the funds or property

Took or misappropriated them

Consented or, through abandonment or negligence, permitted any other person to take such
public funds or property. (it is not necessary that the offender profited thereby. His being
remiss in the duty of safekeeping public funds violates the trust reposed)

Concept of Malversation
It consists in the misappropriation or conversion of public funds or property to
ones personal use or knowingly, or through abandonment or negligence
allowing other to use or appropriate the same. The offender is made liable
because of the nature of his duties to take care of the funds or property
entrusted to him with the diligence of a good father of a family. He is
accountable by virtue of the nature of his office to account for funds or
properties that come to his possession. If he is not accountable for the funds
or properties and he misappropriates the same, the crime will not be
malversation but estafa under Article 315.

Malversation is otherwise called embezzlement

This crime is predicated on the relationship of the offender to the property or funds involved. The
offender must be accountable for the property misappropriated. If the fund or property, though
public in character is the responsibility of another officer, malversation is not committed unless
there is conspiracy.

In determining whether the offender is liable for malversation, it is the nature

of the duties of the public officer that controls. While the name of the office is
important, what is controlling is whether in performing his duties as a public
officer, he has to account or is required by the nature of the performance of a
duty, to render an account on the money or property that came into his
possession.
136

It is not necessary that the offender profited because somebody else may have misappropriated the
funds in question for as long as the accountable officer was remiss in his duty of safekeeping public
funds or property. He is liable for malversation if such funds were lost or otherwise misappropriated
by another.

It can be committed either with malice or through negligence or imprudence

There is no crime of malversation through negligence. The crime is malversation, plain and simple,
whether committed through dolo or culpa. There is no crime of malversation under

Article 365 on criminal negligence because in malversation under Article 217, the same penalty
is imposed whether the malversation results from negligence or was the product of deliberate act.

In determining whether the offender is a public officer, what is controlling is the nature of
his office and not the designation

The offender, to commit malversation, must be accountable for the funds or property
misappropriated by him. If he is not the one accountable but somebody else, the crime committed is
theft. It will be qualified theft if there is abuse of confidence.

Accountable officer does not refer only to cashier, disbursing officers or property custodian. Any
public officer having custody of public funds or property for which he is accountable can commit the
crime of malversation if he would misappropriate such fund or property or allow others to do so.

The funds or property must be received in an official capacity. Otherwise, the crime
committed is estafa

When private property is attached or seized by public authority and the public officer accountable
therefor misappropriates the same, malversation is committed also.

Illustration:

If a sheriff levied the property of the defendants and absconded with it, he is not liable of qualified
theft but of malversation even though the property belonged to a private person. The seizure of the
property or fund impressed it with the character of being part of the public funds it being in custodia
legis. For as long as the public officer is the one accountable for the fund or property that was
misappropriated, he can be liable for the crime of malversation. Absent such relation, the crime
could be theft, simple or qualified.
Estafa

Malversation

It is usually committed by a private

Committed by accountable public officers

individual

Funds or property of misappropriation are

The object is public fund or property.

privately owned.

The offender appropriates personally the

Personal appropriation is not indispensable

funds or property.

because allowing others to commit the

misappropriation is also malversation.

137

When a public officer has official custody or the duty to collect or receive funds due the
government, or the obligation to account for them, his misappropriation of the same
constitutes malversation

Note that the moment any money is commingled with the public fund even if not due the
government, it becomes impressed with the characteristic of being part of public funds. Once they
are commingled, you do not know anymore which belong to the government and which belong to
the private persons. So that a public vault or safe should not be used to hold any fund other that
what is due to the government.

In malversation thru negligence, the negligence of the accountable public officer must be
positively and clearly shown to be inexcusable, approximating fraud or malice

Under jurisprudence, when the public officer leaves his post without locking his drawer, there is
negligence. Thus, he is liable for the loss.

The measure of negligence to be observed is the standard of care commensurate with

the occasion

When malversation is not committed through negligence, lack of criminal intent or good
faith is a defense

The failure of a public officer to have any duly forthcoming public funds or property upon
demand, by any authorized officer, shall be prima facie evidence that he has put such
missing funds or property to personal use. However, if at the very moment when the
shortage is discovered, the accountable officer is notified, and he immediately pays the
amount from his pocket, the presumption does not arise

An accountable public officer may be convicted even if there is no direct

evidence of misappropriation and the only evidence is the shortage in his
account which he has not been able to explain satisfactorily. (Palma Gil vs.
People)

If a public officer reports the loss of money before a cash examination is

conducted and the cause of the loss as reported has a distinct ring of truth to
it, the legal presumption of prima facie evidence of guilt will not apply. In
order to support conviction, the prosecution must prove the actual
misappropriation of the missing funds.(Salvacion vs.
The Honorable Sandiganbayan, G. R. No. 68233, July 11, 1986)

To rebut the presumption of guilt prima facie under Article 217, the accused
must raise the issue of accuracy, correctness and regularity in the conduct of
audit. If asked for a second audit before the filing of the information against
him and the same was denied, and during the trial, some disbursement
vouchers were introduced which were not considered in the first audit, the
denial of the request for a second audit is fatal to the cause of the
prosecution because in the meantime, the evidence introduced does not
establish a fact beyond reasonable doubt. Had the re-audit requested by the
accused been accorded due course, the remaining balance could have been
satisfactorily accounted for. (Mahinay vs. The Sandiganbayan. G. R. No. 61442, May 9,
1989)

Returning the embezzled funds is not exempting, it is only mitigating

Payment of the amount misappropriated or restitution of property misappropriated does not erase
criminal liability but only civil liability.
138

There is also no malversation when the accountable officer is obliged to go out of his
office and borrow the amount corresponding to the shortage and later, the missing
amount is found in an unaccustomed place

A person whose negligence made possible the commission of malversation by another

can be held liable as a principal by indispensable cooperation

It is not necessary that the accountable public officer should actually misappropriate the fund or
property involved. It is enough that he has violated the trust reposed on him in connection with
the property.

Demand as well as damage to the government are not necessary elements

Note that damage on the part of the government is not considered an essential element. It is
enough that the proprietary rights of the government over the funds have been disturbed through
breach of trust.

The grant of loans through the vale system is a clear case of an accountable
officer consenting to the improper or unauthorized use of public funds by
other persons, which is punishable by law. To tolerate such a practice is to
give a license to every disbursing officer to conduct a lending operation with
the use of public funds. There is no law or regulation allowing accountable
officers to extend loans to anyone against the vales or chits given in
exchange by the borrowers. (Meneses vs. Sandiganbayan)

A private person may also commit malversation under the following situations:

Conspiracy with a public officer in committing malversation;

When he has become an accomplice or accessory to a public officer who commits malversation;

When the private person is made the custodian in whatever capacity of public funds or property,
whether belonging to national or local government, and he misappropriates the same;

When he is constituted as the depositary or administrator of funds or property seized or attached

by public authority even though said funds or property belong to a private individual.
Technical malversation is not included in the crime of malversation. In malversation, the offender
misappropriates public funds or property for his own personal use, or allows any other person to
take such funds or property for the latters own personal use. In technical malversation, the public
officer applies the public funds or property under his administration to another public use different
from that for which the public fund was appropriated by law or ordinance. Recourse: File the
proper information.

Article 218

FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS

ELEMENTS:

That the offender is a public officer, whether in the service or separated therefrom.

That he must be an accountable officer for public funds property.

139

That he is required by law or regulation to render accounts to the commission on audit, or to a

provincial auditor.

That he fails to do so for a period of two months after such accounts should be rendered.

The public officers who are bound to render accounts are the
following:

cashiers

storekeepers

warehousemen and

those who by the nature of their position become custodian or public

funds or property.

Note: Demand and misappropriation are not necessary

It is sufficient that there is a law or regulation requiring him to render an

account. It is the failure to follow the requirement of the law that is made
punishable. It is not necessary that the offender prevent the situation of the
crime being committed because of the failure of the accountable officer to
render an account.

Article 219

FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS

BEFORE LEAVING THE COUNTRY

ELEMENTS:
That the offender is a public officer.

That he must be an accountable officer for public funds or property.

That he must have unlawfully left (or be on the point of leaving) the Philippines without
securing from the Commission on Audit a certificate showing that his accounts have been
finally settled.

Who can commit this crime?

A responsible public officer, not necessarily an accountable one, who leaves the country without
first securing clearance from the Commission on Audit.

Note: The act of leaving the Philippines must be unauthorized or not permitted by law

Mere leaving without securing clearance constitutes violation of the Revised Penal Code. It is not
necessary that they really misappropriated public funds.

Article 220

ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (technical malversation)

ELEMENTS:

That the offender is a public officer.

That there is public fund or property under his administration.

140

That such public fund or property has been appropriated by law or ordinance (without this, it
is simple malversation even if applied to other public purpose).

That he applies the same to a public use other than for which such fund or property has been
appropriated by law or ordinance.

The term technical malversation is used because in this crime, the fund or property involved is
already appropriated or earmarked for a certain public purpose.

The offender is entrusted with such fund or property only to administer or apply the same to the
public purpose for which it was appropriated by law or ordinance. Instead of applying it to the
public purpose to which the fund or property was already appropriated by law, the public officer
applied it to another purpose.

To distinguish this article with Art 217, just remember that in illegal use of public funds or
property, the offender does not derive any personal gain, the funds are merely devoted
to some other public use

Absence of damage is only a mitigating circumstance

Since damage is not an element of malversation, even though the application made proved to be
more beneficial to public interest than the original purpose for which the amount or property was
appropriated by law, the public officer involved is still liable for technical malversation.

If public funds were not yet appropriated by law or ordinance, and this was applied to a public
purpose by the custodian thereof, the crime is plain and simple malversation, not technical
malversation. If the funds had been appropriated for a particular public purpose, but the same
was applied to private purpose, the crime committed is simple malversation only.

Illustration:

The office lacked bond papers. What the government cashier did was to send the janitor, get
some money from his collection, told the janitor to buy bond paper so that the office will have
something to use. The amount involved maybe immaterial but the cashier commits malversation
pure and simple.

This crime can also be committed by a private person.

Illustration:

A certain road is to be cemented. Bags of cement were already being unloaded at the side. But
then, rain began to fall so the supervisor of the road building went to a certain house with a
garage, asked the owner if he could possibly deposit the bags of cement in his garage to prevent
the same from being wet. The owner of the house, Olive, agreed. So the bags of cement were
transferred to the garage of the private person. After the public officer had left, and the workers
had left because it is not possible to do the cementing, the owner of the garage started using
some of the cement in paving his own garage. The crime of technical malversation is also
committed.

Note that when a private person is constituted as the custodian in whatever capacity, of public
funds or property, and he misappropriates the same, the crime of malversation is also committed.
See Article 222.

Illustration:

The payroll money for a government infrastructure project on the way to the site of the project, the
officers bringing the money were ambushed. They were all wounded. One of them, however,
141

was able to get away from the scene of the ambush until he reached a certain house. He told the
occupant of the house to safeguard the amount because it is the payroll money of the
government laborers of a particular project. The occupant of the house accepted the money for
his own use. The crime is not theft but malversation as long as he knew that what was entrusted
in his custody is public fund or property.

Article 221

FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY

ELEMENTS:

Offender has govt funds or property in his possession

He is under obligation to either:

make payment from such funds

to deliver property in his custody or administration when ordered by competent authority

He maliciously fails or refuses to do so

Note: Penalty is based on value of funds/property to be delivered

Article 222

PERSONS WHO MAY BE HELD LIABLE UNDER ARTS 217 TO 221

Private individual who, in any capacity, have charge of any national, provincial or
municipal funds, revenue, or property

Administrator or depositary of funds or property that has been attached, seized or

deposited by public authority, even if owned by a private individual

Sheriffs and receivers fall under the term administrator

A judicial administrator in charge of settling the estate of the deceased is not covered by
the article

Here, the funds or property belong to private individuals, but they are
considered public funds or property if they come to the possession of the
public officer because of 1) a writ of attachment; or 2) if they are seized by
virtue of a search warrant. Or 3) if they are ordered deposited pending
determination of ownership in the administrative or judicial proceedings.

Private individuals may also be liable for malversation if they act as

conspirators in the commission of the crime.

INFIDELITY OF PUBLIC OFFICERS

Article 223
142

CONNIVING WITH OR CONSENTING TO EVASION

ELEMENTS:

That the offender is a public officer (on duty).

That he is charged with the conveyance or custody of a prisoner, either detention prisoner or
prisoner by final judgment.

That such prisoner escaped from his custody

That he was in connivance with the prisoner in the latters escape

Detention prisoner: refers to a person in legal custody, arrested for and charged with
some crime or public offense

The release of a detention prisoner who could not be delivered to judicial authorities
within the time fixed by law is not infidelity in the custody of a prisoner. Neither is mere
leniency or laxity in the performance of duty constitutive of infidelity

There is real and actual evasion of service of sentence when the custodian permits the
prisoner to obtain a relaxation of his imprisonment

A municipal mayor who utilized the prisoners services for domestic chores in his house,
including using him as a cook is liable for faithlessness in the custody of prisoner (Art. 223) even
though the convict may not have fled, in as much as the prisoners leaving the prison was effected
through him. (People vs. Evangelista, C.A. 38 O.G. 158).

Article 224

EVASION THROUGH NEGLIGENCE

ELEMENTS:

That the offender is a public officer.

That he is charged with the conveyance or custody of a prisoner, either detention prisoner or
prisoner by final judgment.

That such prisoner escapes through his negligence.

Penalty based on nature of imprisonment

The article punishes a definite laxity which amounts to deliberate non-performance of a

duty

Not every error is negligence under this article. To be liable, the negligence
must be notorious and apparent. The laxity must be definite and must
seriously suggest a deliberate non-performance of a duty.

The negligence which is punishable however is not such definite laxity at all but that which
amounts to deliberate non-performance of the jailer or the guard. So that if a policemen on guard
duty unlocked the door of the jail to let a detention prisoner go out so he can clean the premises,
but on the latters third trip to a nearby faucet, he walked behind the police headquarters climbed
over the wall and escape, the crime is not committed. (People vs. Solis, C.A. 43 O.G. 580).
143

The fact that the public officer recaptured the prisoner who had escaped from his
custody does not afford complete exculpation

The liability of an escaping prisoner:

if he is a prisoner by final judgment, he is liable for evasion of service (art 157)

if he is a detention prisoner, he does not incur criminal liability (unless cooperating with
the offender).

Article 225

ESCAPE OF PRISONERS UNDER THE CUSTODY OF A PERSON NOT A

PUBLIC OFFICER

ELEMENTS:

That the offender is a private person (note: must be on duty)

That the conveyance or custody of a prisoner or person under arrest is confined to him.

That the prisoner or person under arrest escapes.

That the offender consents to the escape of the prisoner or person under arrest, or that the
escape takes place through his negligence

Note: This article is not applicable if a private person made the arrest and he consented
to the escape of the person he arrested
The offender under this article is not the one who arrested the escaping prisoner but one who
agreed to have the custody or charge of the prisoner or person under arrest.

ORTEGA NOTES:

The crime is infidelity in the custody of prisoners if the offender involved is the custodian of the
prisoner.

If the offender who aided or consented to the prisoners escaping from confinement, whether the
prisoner is a convict or a detention prisoner, is not the custodian, the crime is delivering prisoners
from jail under Article156.

The crime of infidelity in the custody of prisoners can be committed only by the custodian of the
prisoner.

If the jail guard who allowed the prisoner to escape is already off-duty at that time and he is no
longer the custodian of the prisoner, the crime committed by him is delivering prisoners from jail.

Note that you do not apply here the principle of conspiracy that the act of one is the act of all.

The party who is not the custodian who conspired with the custodian in allowing the prisoner to
escape does not commit infidelity in the custody of the prisoner. He commits the crime of
delivering prisoners from jail.

Question & Answer

144

If a private person approached the custodian of the prisoner and for a certain consideration, told
the custodian to leave the door of the cell unlocked for the prisoner to escape. What crime had
been committed?

It is not infidelity in the custody of prisoners because as far as the private person is concerned,
this crime is delivering prisoners from jail. The infidelity is only committed by the custodian.

This crime can be committed also by a private person if the custody of the prisoner has been
confided to a private person.

Illustration:

A policeman escorted a prisoner to court. After the court hearing, this policeman was shot at with
a view to liberate the prisoner from his custody. The policeman fought the attacker but he was
fatally wounded. When he could no longer control the prisoner, he went to a nearby house, talked
to the head of the family of that house and asked him if he could give the custody of the prisoner
to him. He said yes. After the prisoner was handcuffed in his hands, the policeman expired.
Thereafter, the head of the family of that private house asked the prisoner if he could afford to
give something so that he would allow him to go. The prisoner said, Yes, if you would allow me
to leave, you can come with me and I will give the money to you. This private persons went with
the prisoner and when the money was given, he allowed him to go. What crime/s had been
committed?

Under Article 225, the crime can be committed by a private person to whom the custody of a
prisoner has been confided.

Where such private person, while performing a private function by virtue of a provision of law,
shall accept any consideration or gift for the non-performance of a duty confided to him, Bribery is
also committed. So the crime committed by him is infidelity in the custody of prisoners and
bribery.

If the crime is delivering prisoners from jail, bribery is just a means, under Article 156, that would
call for the imposition of a heavier penalty, but not a separate charge of bribery under Article 156.

But under Article 225 in infidelity, what is basically punished is the breach of trust because the
offender is the custodian. For that, the crime is infidelity. If he violates the trust because of some
consideration, bribery is also committed.

A higher degree of vigilance is required. Failure to do so will render the custodian liable. The
prevailing ruling is against laxity in the handling of prisoners.
Illustration:

A prison guard accompanied the prisoner in the toilet. While answering the call of nature, police
officer waiting there, until the prisoner escaped. Police officer was accused of infidelity.

There is no criminal liability because it does not constitute negligence. Negligence contemplated
here refers to deliberate abandonment of duty.

Note, however, that according to a recent Supreme Court ruling, failure to accompany lady
prisoner in the comfort room is a case of negligence and therefore the custodian is liable for
infidelity in the custody of prisoner.

Prison guard should not go to any other place not officially called for. This is a case of infidelity in
the custody of prisoner through negligence under Article 224.

INFIDELITY IN CUSTODY OF DOCUMENTS

145

Article 226

REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS

ELEMENTS:

That the offender be a public officer.

That he abstracts, destroys or conceals a document or papers.

That the said document or paper should have been entrusted to such public officer by reason
of his office.

That damage, whether serious or not, to a third party or to the public interest should have been
caused.

The act of obstruction, destruction or concealment must cause damage to a

third party or to the public interest. Damage to a third party is usually
pecuniary; but damage to public interest may consist in mere alarm to the
public or the alienation of its confidence on any branch of the government
service.

The document must be complete and one by which a right could be established or an
obligation could be extinguished

Books, periodicals, pamphlets etc are not documents

Papers would include checks, promissory notes and paper money

Removal of a document presupposes unlawful appropriation of the official

document. Destruction means to render the document useless. Its nature to
prove the existence of a fact is lost such that it cannot anymore prove the
probability or improbability of a fact in issue. Concealment on the other
hand means to make it appear that the document is not available.

A post office official who retained the mail without forwarding the letters to their
destination is guilty of infidelity in the custody of papers

Removal of a document or paper must be for an illicit purpose.

If the removal of the document is for a lawful purpose and that is, to secure
the same from imminent danger or loss, there is no crime committed under
the law, (Kataniag vs.

People, 74 Phil. 45).

There is illicit purpose when the intention of the offender is to:

tamper with it

to profit by it

to commit any act constituting a breech of trust in the official thereof

The act of removal, destruction or concealment should be coupled with

criminal intent or malice (Manzanaris vs. Sandiganbayan, et al., G.R. No. 64750, Jan. 30,
1984).

Removal is consummated upon removal or secreting away of the document from its
usual place. It is immaterial whether or not the illicit purpose of the offender has been
accomplished
146

Removal of public records by the custodian does not require that the record be brought out of the
premises where it is kept. It is enough that the record be removed from the place where it should
be and transferred to another place where it is not supposed to be kept. If damage is caused to
the public service, the public officer is criminally liable for infidelity in the custody of official
documents.

Infidelity in the custody of documents through destruction or concealment does not

require proof of an illicit purpose

Where in case for bribery or corruption, the monetary considerations was marked as exhibits,
such considerations acquires the nature of a document such that if the same would be spent by
the custodian the crime is not malversation but Infidelity in the custody of public records, because
the money adduced as exhibits partake the nature of a document and not as money. Although
such monetary consideration acquires the nature of a document, the best evidence rule does not
apply here. Example, photocopies may be presented in evidence.

Delivering the document to the wrong party is infidelity in the custody thereof

The damage may either be great or small

Damage to public interest is necessary. However, material damage is not necessary.

Although there is no material damage caused, mere delay in rendering public service is
considered damage.

The offender must be in custody of such documents

Distinction between infidelity in the custody of public document, estafa and malicious
mischief

In infidelity in the custody of public document, the offender is the custodian of the official
document removed or concealed.

In estafa, the offender is not the custodian of the document removed or concealed.
In malicious mischief, the offender purposely destroyed and damaged the property/document.

Article 227

OFFICER BREAKING SEAL

ELEMENTS :

That the offender is a public officer.

That he is charged with the custody of papers or property.

That these papers or property are sealed by proper authority.

That he breaks the seals or permits them to be broken.

It is the breaking of the seals and not the opening of a closed envelope which is
punished
147

Damage or intent to cause damage is not necessary; damage is presumed

If the official document is sealed or otherwise placed in an official envelope, the element of
damage is not required. The mere breaking of the seal or the mere opening of the document
would already bring about infidelity even though no damage has been suffered by anyone or by
the public at large. The offender does not have to misappropriate the same. Just trying to
discover or look what is inside is infidelity already.

A crime is already committed regardless of whether the contents of the document are secret or
private. It is enough that it is entrusted to him in a sealed form or in a closed envelope and he
broke the seal or opened the envelop. Public trust is already violated if he managed to look into
the contents of the document.

Distinction between infidelity and theft

There is infidelity if the offender opened the letter but did not take the same.

There is theft if there is intent to gain when the offender took the money.

Note that the document must be complete in legal sense. If the writings are mere form, there is no
crime.

Illustration:

As regard the payroll, which has not been signed by the Mayor, no infidelity is committed because
the document is not yet a payroll in the legal sense since the document has not been signed yet.

In "breaking of seal", the word "breaking" should not be given a literal meaning. Even if actually,
the seal was not broken, because the custodian managed to open the parcel without breaking the
seal.

Article 228

OPENING OF CLOSED DOCUMENTS

ELEMENTS:

That the offender is a public officer.

That any closed papers, documents, or objects are entrusted to his custody.

That he opens or permits to be opened said closed papers, documents or objects.

That he does not have proper authority.

Note: Damage also not necessary

In Article 227, the mere breaking of the seal is what is made punishable
while in Article 228, the mere opening of closed documents is enough to
hold the offender criminally liable. The breaking of the seal or the opening of
the closed document must be done without lawful authority or order from
competent authority. In both offenses, damage to the public interest is not
required.

REVELATION OF SECRETS
148

Article 229

REVELATION OF SECRET BY AN OFFICER

ELEMENTS OF PAR.1: BY REASON OF HIS OFFICIAL CAPACITY

That the offender is a public officer.

That he knows of a secret by reason of his official capacity.

That he reveals such secret without authority or justifiable reasons.

That damage, great or small, be caused to the public interest.

(damage is essential)

Notes:

Secret must affect public interest

The secrets referred to in this article are those which have an official or public
character. It does not include secret information regarding private individuals.
Nor does it include military or State secrets in as much as the revelation of
the same is classified as espionage, a crime in violation of the national
security of the State.

Secrets of a private individual is not included

Espionage for the benefit of another State is not contemplated by the article. If regarding
military secrets or secrets affecting state security, the crime may be espionage.
ELEMENTS OF PAR 2 DELIVERING WRONGFULLY PAPERS OR COPIES OF
PAPERS OF WHICH HE MAY HAVE CHARGE AND WHICH SHOULD NOT BE
PUBLISHED:

That the offender is a public officer.

That he has charge of papers.

That those papers should not be published.

That he delivers those papers or copies thereof to a third person.

That the delivery is wrongful.

That damage be caused to public interest.

Notes:

Charge: means custody or control. If he is merely entrusted with the papers and not
with the custody thereof, he is not liable under this article

If the papers contain secrets which should not be published, and the public officer having
charge thereof removes and delivers them wrongfully to a third person, the crime is
revelation of secrets. On the other hand, if the papers do not contain secrets, their
removal for an illicit purpose is infidelity in the custody of documents
149

c. Damage is essential to the act committed

Article 230

PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL

ELEMENTS:

That the offender is a public officer

That he knows of the secret of a private individual by reason of his office.

That he reveals such secrets without authority or justification reason.

Revelation to one person is sufficient

If the offender is an attorney, he is properly liable under Art 209 (betrayal of trust by an
attorney)

Damage to private individual is not necessary

OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS

Article 231

OPEN DISOBEDIENCE
ELEMENTS:

That the offender is a judicial or executive officer.

That there is a judgment, decision or order of superior authority.

That such judgment, decision or order was made within the scope of the jurisdiction of the
superior authority and issued with all the legal formalities.

that the offender without any legal justification openly refuses to execute the said judgment,
decision or order which he is duty bound to obey.

The gravamen of the offense is the open refusal of the offender to execute
the order without justifiable reason.

Note: Judgment should have been rendered in a hearing and issued within proper
jurisdiction with all legal solemnities required

The term execute as found in the law does not only means performance of
an act since the judgment, decision or order may also direct the non-
performance of an act.

The article does not apply to the members of Congress.

Article 232
150

DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER WHEN SAID ORDER

WAS SUSPENDED BY INFERIOR OFFICER

ELEMENTS:

That the offender is a public officer.

That an order is issued by his superior for execution.

That he has for any reason suspended the execution of such order.

That his superior disapproves the suspension of the execution of the order.

That the offender disobeys his superior despite the disapproval of the suspension.

Note: A public officer is not liable if the order of the superior is illegal

What is contemplated here is a situation where the subordinate has some

doubts regarding the legality of the order. Hence, he is afforded an
opportunity to suspend the execution of the order, so as to give him time to
further study the same. He commits no crime for doing this act. However, if
he continues to suspend the execution of the order notwithstanding the
disapproval by his superior of the stay of the execution, such refusal on his
part already constitutes a crime punishable under this article.

Article 233

REFUSAL OF ASSISTANCE

ELEMENTS:

That the offender is a public officer.

That a competent authority demands from the offender that he lend his cooperation towards
the administration of justice or other public service.

That the offender fails to do so maliciously.

Involves a request from one public officer to another

Damage to the public interest or third party is essential

Damage is essential whether great or small. But the penalty is affected by

the seriousness of the damage. Note that the refusal must be done with
malice.

Demand is necessary

The situation contemplated herein may refer to the administration of justice

before the case is filed in court. Competent authority may refer to persons in
authority who are charged by the law to help in the administration of justice.
The term may refer to police authorities. However, when a case under
investigation reaches the court, the remedy may not be limited to incurring
criminal liability under this article because the refusal may already be
punished as direct or indirect contempt of court.

This is a crime, which a policeman may commit when, being subpoenaed to appear in court in
connection with a crime investigated by him but because of some arrangement with the
151

offenders, the policeman does not appear in court anymore to testify against the offenders. He
tried to assail the subpoena so that ultimately the case would be dismissed. It was already held
that the policeman could be prosecuted under this crime of refusal of assistance and not that of
dereliction of duty.

Article 234

REFUSAL TO DISCHARGE ELECTIVE OFFICE

ELEMENTS:

That the offender is elected by popular election to a public office.

That he refuses to be sworn in or discharge the duties of said office.

That there is no legal motive for such refusal to be sworn in or to discharge the duties of said
office.

After proclamation of a candidate to a public office, it becomes his duty to

render public service. Since it is his duty, then his refusal to perform such
duty is punishable under the law.

Note: Even if the person did not run for the office on his own will as the Constitution
provides that every citizen may be required to render service

Article 235

MALTREATMENT OF PRISONERS

ELEMENTS:

That the offender is a public officer or employee.

That he has under charge a prisoner or detention prisoner (otherwise the crime is physical
injuries)

That he maltreats such prisoner in either of the following manners:

By overdoing himself in the correction or handling of a prisoner or detention prisoner under

his charge either

by the imposition of punishments not authorized by the regulations, or

by inflicting such punishments (those authorized) in a cruel and humiliating manner, or

by maltreating such prisoner to extort a confession or to obtain some information from the
prisoner.

The maltreatment does not really require physical injuries. Any kind of punishment not authorized
or though authorized if executed in excess of the prescribed degree.

But if as a result of the maltreatment, physical injuries were caused to the prisoner, a separate
crime for the physical injuries shall be filed. You do not complex the crime of physical injuries with
the maltreatment because the way Article 235 is worded, it prohibits the complexing of the crime.

If the maltreatment was done in order to extort confession, therefore, the constitutional right of the
prisoner is further violated. The penalty is qualified to the next higher degree.
152

The public officer must have actual charge of the prisoner in order to be held liable

If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is
physical injuries.

If a Barangay Captain maltreats a person after the latters arrest but before confinement, the
offense is not maltreatment but physical injuries. The victim must actually be confined either as a
convict or a detention prisoner for Art. 235 to apply. (People vs. Baring, et al., 37 O.G. 1366).

To be considered a detention prisoner, the person arrested must be placed in jail even
for just a short while

The offended party here must be a prisoner in the legal sense. The mere fact that a private citizen
had been apprehended or arrested by a law enforcer does not constitute him a prisoner.

To be a prisoner, he must have been booked and incarcerated no matter how short it is.

Illustration:

A certain snatcher was arrested by a law enforcer, brought to the police precinct, turned over to
the custodian of that police precinct. Every time a policeman entered the police precinct, he
would ask, What is this fellow doing here? What crime has he committed?. The other policeman
would then tell, This fellow is a snatcher. So every time a policeman would come in, he would
inflict injury to him. This is not maltreatment of prisoner because the offender is not the custodian.
The crime is only physical injuries.

But if the custodian is present there and he allowed it, then he will be liable also for the physical
injuries inflicted, but not for maltreatment because it was not the custodian who inflicted the injury.

But if it is the custodian who effected the maltreatment, the crime will be maltreatment of
prisoners plus a separate charge for physical injuries.

Offender may also be held liable for physical injuries or damage caused
Article 236

ANTICIPATION OF DUTIES OF A PUBLIC OFFICE

ELEMENTS:

That the offender is entitled to hold a public office or employment, either by election or
appointment.

That the law requires that he should first be sworn in and/or should first give a bond.

That he assumes the performance of the duties and powers of such office.

That he has not taken his oath of office and /or given the bond required by law.

Article 237

PROLONGING PERFORMANCE OF DUTIES AND POWERS

ELEMENTS:

That the offender is holding a public office.

That the period provided by law, regulations or special provisions for holding such office has
already expired.
153

That he continues to exercise the duties and powers of such office.

Note: The article contemplates officers who have been suspended, separated or
declared over-aged or dismissed

The crime is committed only if the public officer has lost every right to the
office because there are offices which require the officer to continue serving
as such properly relieved. The law is intended to put an end to the principle
of hold over.

Article 238

ABANDONMENT OF OFFICE OR POSITION

ELEMENTS:

That the offender is a public officer.

That he formally resigns from his position.

That his resignation has not yet been accepted.

That he abandons his office to the detriment of the public service.

There must be formal or written resignation

Oral resignation is not allowed. The resignation must be in writing and
directed to the appointing power who has the authority to accept or
disapprove the same. This requirement is indispensable because the letter of
resignation goes into a process.

The offense is qualified if the purpose behind the abandonment is to evade the
discharge of duties consisting of preventing, prosecuting or punishing any of the crimes
against national security. The penalty is higher ( one degree ). This involves the following
crimes:

treason

conspiracy and proposal to commit conspiracy

misprision of treason

espionage

inciting to war or giving motives to reprisals

violation of neutrality

correspondence with hostile country

flight to enemy country

piracy and mutiny on the high seas

rebellion

conspiracy and proposal to commit rebellion

disloyalty to public officers

inciting to rebellion
sedition

conspiracy to commit sedition

inciting to sedition

Abandonment of Office or Position

Dereliction of Duty (208)

(238)
154

There is actual abandonment through

Public officer does not abandon his office

resignation to evade the discharge of

but merely fails to prosecute a violation of

duties.

the law.

Article 239

USURPATION OF LEGISLATIVE POWERS

ELEMENTS:

That the offender is an executive or judicial officer.

That he (a.) makes general rules or regulations beyond the scope of his authority or (b.)
attempts to repeal a law or (c.) suspends the execution thereof.

Article 240

USURPATION OF EXECUTIVE FUNCTIONS

ELEMENTS:

That the offender is a judge.

That he (a.) assumes a power pertaining to the executive authorities, or (b.) obstructs executive
authorities in the lawful exercise of their powers.

Note: Legislative officers are not liable for usurpation of executive functions

Article 241

USURPATION OF JUDICIAL FUNCTIONS

ELEMENTS:

That the offender is an officer of the executive branch of the government.

That he (a.) assumes judicial powers, or (b.) obstruct the execution of any order decision
rendered by any judge within his jurisdiction.

Note: A mayor is guilty under this article when he investigates a case while a justice of
the peace is in the municipality

Article 242

DISOBEYING REQUEST FOR DISQUALIFICATION

ELEMENTS:

That the offender is a public officer.

That a proceeding is pending before such public officer.

155

That there is a question brought before the proper authority regarding his jurisdiction, which
is not yet decided.

That he has been lawfully required to refrain from continuing the proceeding.

That he continues the proceeding.

Even if the jurisdiction of the offender is later upheld or sustained, he is still

liable because what is in issue is not the legality of his jurisdiction, but
whether he obeyed or disobeyed the temporary restraining order issued by
the higher authority.

Article 243

ORDERS OR REQUESTS BY EXECUTIVE OFFICER TO ANY JUDICIAL

AUTHORITY

ELEMENTS:

That the offender is an executive officer.

That he addresses any order or suggestion to any judicial authority.

That the order or suggestion relates to any case or business coming within the exclusive
jurisdiction of the courts of justice.

Note: Legislative or judicial officers are not liable under this article
Article 244

UNLAWFUL APPOINTMENTS

ELEMENTS:

That the offender is a public officer.

That he nominates or appoints a person to a public office.

That such person lacks the legal qualification therefor.

That the offender knows that his nominee or appointee lacks the qualification at the time he
made the nomination or appointment.

Recommending, knowing that the person recommended is not qualified is not a crime

The word nominate is not the same as recommend. To nominate is to

guarantee to the appointing power that the person nominated has all the
qualifications to the office. Recommendation on the other hand does not
make any guarantee as to the legal fitness of the candidate to public office.

There must be a law providing for the qualifications of a person to be nominated or

appointed to a public office

Article 245
156

ABUSES AGAINST CHASTITY

ELEMENTS:

That the offender is a public officer.

That he solicits or makes immoral or indecent advances to a woman.

That such woman must be

interested in matters pending before the offender for decision, or with respect to which he is
required to submit a report to or consult with a superior officer, or

under the custody of the offender who is a warden or other public officer directly charged with
care and custody of prisoners or person under arrest, or

the wife, daughter, sister or relative within the same degree by affinity of the person in the
custody of the offender

Only a lady can be a complainant here so that a gay guard or warden who makes immoral
proposals or indecent advances to a male prisoner is not liable under this law.

Mere indecent solicitation or advances of a woman over whom the public officer exercises a
certain influence because the woman is involved in a case where the offender is to make a report
of result with superiors or otherwise a case which the offender was investigating.

This crime is also committed if the woman is a prisoner and the offender is her jail warden or
custodian, or even if the prisoner may be a man if the jail warden would make the immoral
solicitations upon the wife, sister, daughter, or relative by affinity within the same degree of the
prisoner involved.

The mother of the person in the custody of the public officer is not included
This crime cannot be committed if the warden is a woman and the prisoner is a man. Men have
no chastity.

If the warden is also a woman but is a lesbian, it is submitted that this crime could be committed,
as the law does not require that the custodian be a man but requires that the offended be a
woman.

Solicit: means to propose earnestly and persistently something unchaste and immoral
to a woman

The word solicit means to demand earnestly. In this case, the demand is for
sexual favor. It must be immoral or indecent and done by the public officer
taking advantage of his position as one who can help by rendering a
favorable decision or unwarranted benefits, advantage or preference to a
person under his custody.

The crime is consummated by mere proposal

It is not necessarily for the offended party to surrender her virtue to

consummate the crime. Mere proposal is sufficient to consummate the crime.

Even if the woman may have lied with the hearing officer or to the public officer and acceded to
him, that does not change the crime because the crime seeks to penalize the taking advantage of
official duties.
157

It is immaterial whether the woman did not agree or agreed to the solicitation. If the woman did
not agree and the public officer involved pushed through with the advances, attempted rape may
have been committed.

Legally, a prisoner is an accountability of the government. So the custodian is not supposed to

interfere. Even if the prisoner may like it, he is not supposed to do that. Otherwise, abuse against
chastity is committed.

If he forced himself against the will of the woman, another crime is committed, that is, rape aside
from abuse against chastity.

You cannot consider the abuse against chastity as absorbed in the rape because the basis of
penalizing the acts is different from each other.

Proof of solicitation is not necessary when there is sexual intercourse

Republic Act No. 7877 (Anti-Sexual Harassment Act)

Committed by any person having authority, influence or moral ascendancy over another in a
work, training or education environment when he or she demands, requests, or otherwise
requires any sexual favor from the other regardless of whether the demand, request or
requirement for submission is accepted by the object of the said act (for a passing grade, or
granting of scholarship or honors, or payment of a stipend, allowances, benefits, considerations;
favorable compensation terms, conditions, promotions or when the refusal to do so results in a
detrimental consequence for the victim).

Also holds liable any person who directs or induces another to commit any act of sexual
harassment, or who cooperates in the commission, the head of the office, educational or training
institution solidarily.

Complaints to be handled by a committee on decorum, which shall be determined by rules and

regulations on such.
Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of
sexual harassment.
158

TITLE EIGHT

CRIMES AGAINST PERSONS

Crimes against persons

Parricide (Art. 246);

Murder (Art. 248);

Homicide (Art. 249);

Death caused in a tumultuous affray (Art. 251);

Physical injuries inflicted in a tumultuous affray (Art. 252);

Giving assistance to suicide (Art. 253);

Discharge of firearms (Art. 254);

Infanticide (Art. 255);

Intentional abortion (Art. 256);

Unintentional abortion (Art. 257);

Abortion practiced by the woman herself or by her parents (Art. 258);

Abortion practiced by a physician or midwife and dispensing of abortives (Art.
259);

Duel (Art. 260);

Challenging to a duel (Art. 261);

Mutilation (Art. 262);

Serious physical injuries (Art. 263);

Administering injurious substances or beverages (Art. 264);

Less serious physical injuries (Art. 265);

Slight physical injuries and maltreatment (Art. 266); and

Rape (Art. 266-A).

DESTRUCTION OF LIFE

Article 246

PARRICIDE
159

ELEMENTS:

That a person is killed.

That the deceased is killed by the accused.

That the deceased is the father, mother, or child, whether legitimate or illegitimate, or a
legitimate other ascendant or other descendant, or the legitimate spouse of the accused.

Notes:

The relationship of the offender with the victim is the essential element of the felony

The relationship must be in the direct line and not in the collateral line.

The relationship between the offender and the offended party must be legitimate, except when
the offender and the offended party are related as parent and child.

Except between husband and wife, the offender must be related to the
offended party by blood.

Parents and children are not included in the term ascendants or descendants

The other ascendant or descendant must be legitimate. On the other hand, the father,
mother or child may be legitimate or illegitimate

If the offender and the offended party, although related by blood and in the direct line, are
separated by an intervening illegitimate relationship, parricide can no longer be committed. The
illegitimate relationship between the child and the parent renders all relatives after the child in the
direct line to be illegitimate too.

The only illegitimate relationship that can bring about parricide is that between parents and
illegitimate children as the offender and the offended parties.
Illustration:

A is the parent of B, the illegitimate daughter. B married C and they begot a legitimate child D. If
D, daughter of B and C, would kill A, the grandmother, the crime cannot be parricide anymore
because of the intervening illegitimacy. The relationship between A and D is no longer legitimate.
Hence, the crime committed is homicide or murder.

A, an illegitimate son of B, who killed the legitimate father of the latter, is not guilty of
Parricide because in case of other ascendants (grandparents, great grandparents, etc.), the
relationship with the killer must be legitimate. The same is true with other descendants
that is, grandchildren, great grandchildren, etc.

4. The child should not be less than 3 days old. Otherwise, the offense is infanticide

That the mother killed her child in order to conceal her dishonor is not mitigating. This is
immaterial to the crime of parricide, unlike in the case of infanticide. If the child is less than three
days old when killed, the crime is infanticide and intent to conceal her dishonor is considered
mitigating.

5. Relationship must be alleged

160

In killing a spouse, there must be a valid subsisting marriage at the time of the killing. Also, the
information should allege the fact of such valid marriage between the accused and the victim.

In a ruling by the Supreme Court, it was held that if the information did not allege that the
accused was legally married to the victim, he could not be convicted of parricide even if the
marriage was established during the trial. In such cases, relationship shall be appreciated as
generic aggravating circumstance.

The Supreme Court has also ruled that Muslim husbands with several wives can be convicted of
parricide only in case the first wife is killed. There is no parricide if the other wives are killed
although their marriage is recognized as valid. This is so because a Catholic man can commit the
crime only once. If a Muslim husband could commit this crime more than once, in effect, he is
being punished for the marriage which the law itself authorized him to contract.

A stranger who cooperates in committing parricide is liable for murder or homicide

Since parricide is a crime of relationship, if a stranger conspired in the commission of the crime,
he cannot be held liable for parricide. His participation would make him liable for murder or for
homicide, as the case may be. The rule of conspiracy that the act of one is the act of all does not
apply here because of the personal relationship of the offender to the offended party.

Illustration:

A spouse of B conspires with C to kill B. C is the stranger in the relationship. C killed B with
treachery. The means employed is made known to A and A agreed that the killing will be done by
poisoning.

As far as A is concerned, the crime is based on his relationship with B. It is therefore parricide.
The treachery that was employed in killing Bong will only be generic aggravating circumstance in
the crime of parricide because this is not one crime that requires a qualifying circumstance.

But that same treachery, insofar as C is concerned, as a stranger who cooperated in the killing,
makes the crime murder; treachery becomes a qualifying circumstance.

Even if the offender did not know that the person he had killed is his son, he is still liable
for parricide because the law does not require knowledge of the relationship
Article 365 expressly provides that parricide can be committed through
reckless imprudence. The penalty will not be under Article 246 but under
Article 365.

Similarly, parricide can be committed by mistake. This is demonstrated in a

situation where a person wanting to kill a stranger, kills his own father by
mistake. Although the crime committed is parricide, the offender will not be
punished under Article 246 but under Article 49, which prescribes a penalty
much lower than that provided under Article 246.

Article 247

DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL CIRCUMSTANCES

Requisites:

A legally married person or parent surprises his spouse or daughter (the latter must be under
18 and living with them) in the act of committing sexual intercourse with another person
161

He/she kills any or both of them or inflicts upon any or both of them any serious physical
injury in the act or immediately thereafter

He has not promoted or facilitated the prostitution of his wife or daughter, or that he has not
consented to the infidelity of the other spouse.

Notes:

1. Article does not define or penalize a felony

Article 247, far from defining a felony merely grants a privilege or benefit, more of an exempting
circumstance as the penalty is intended more for the protection of the accused than a
punishment. Death under exceptional character can not be qualified by either aggravating or
mitigating circumstances.

If the accused fails to establish the circumstances called for in Article 247, he/she will be guilty of
Parricide and Murder or Homicide if the victims were killed.

Not necessary that the parent be legitimate

Article applies only when the daughter is single

Surprise: means to come upon suddenly or unexpectedly

Art 247 is applicable when the accused did not see his spouse in the act sexual
intercourse with another person. However, it is enough that circumstances reasonably
show that the carnal act is being committed or has been committed

It is not necessary that the spouse actually saw the sexual intercourse being committed. It is
enough that he/she surprised them under such circumstances that no other reasonable conclusion
can be inferred but that a carnal act was being performed or has just been committed.

The article does not apply where the wife was not surprised in flagrant adultery but was being
abused by a man as in this case there will be defense of relation.
If the offender surprised a couple in sexual intercourse, and believing the woman to be his wife,
killed them, this article may be applied if the mistake of facts is proved.

The benefits of this article do not apply to the person who consented to the infidelity of his spouse
or who facilitated the prostitution of his wife.

6. Sexual intercourse does not include preparatory acts

So if the surprising took place before any actual sexual intercourse could be done because the
parties are only in their preliminaries, the article cannot be invoked anymore.

Immediately thereafter: means that the discovery, escape, pursuit and the killing must
all form parts of one continuous act

The phrase immediately thereafter has been interpreted to mean that between the surprising
and the killing of the inflicting of the physical injury, there should be no break of time. In other
words, it must be a continuous process.
162

If there was already a break of time between the sexual act and the killing or inflicting of the
injury, the law presupposes that the offender regained his reason and therefore, the article will not
apply anymore.

8. The killing must be the direct by-product of the rage of the accused

Article 247 does not provide that the victim is to be killed instantly by the accused after surprising
his spouse in the act of intercourse. What is required is that the killing is the proximate result of
the outrage overwhelming the accused upon the discovery of the infidelity of his spouse. The
killing should have been actually motivated by the same blind impulse.

No criminal liability is incurred when less serious or slight physical injuries are inflicted.
Moreover, in case third persons caught in the crossfire suffer physical injuries, the
accused is not liable. The principle that one is liable for the consequences of his
felonious act is not applicable because he is not committing a felony

In the case of People v. Abarca, 153 SCRA 735, two persons suffered physical injuries as they
were caught in the crossfire when the accused shot the victim. A complex crime of double
frustrated murder was not committed as the accused did not have the intent to kill the two victims.
Here, the accused did not commit murder when he fired at the paramour of his wife. Inflicting
death under exceptional circumstances is not murder. The accused was held liable for negligence
under the first part, second paragraph of Article 365, that is, less serious physical injuries through
simple negligence. No aberratio ictus because he was acting lawfully.

A person who acts under Article 247 is not committing a crime. Since this is merely an exempting
circumstance, the accused must first be charged with:

Parricide if the spouse is killed;

Murder or homicide depending on how the killing was done insofar as the paramour or the
mistress is concerned;

Homicide through simple negligence, if a third party is killed;

Physical injuries through reckless imprudence, if a third party is injured.

If death results or the physical injuries are serious, there is criminal liability although the penalty is
only destierro. The banishment is intended more for the protection of the offender rather than a
penalty.
If the crime committed is less serious physical injuries or slight physical injuries, there is no
criminal liability.

Article 248

MURDER

ELEMENTS :

That a person was killed.

That the accused killed him.

That the killing was attended by any of the following qualifying circumstances

with treachery, taking advantage of superior strength, with the aid or armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity
163

in consideration of price, reward or promise

by means of inundation, fire, poison, explosion, shipwreck, stranding of vessel, derailment or

assault upon a street car or locomotive, fall of airship, by means of motor vehicles or with the
use of any other means involving great waste or ruin

on occasion of any of the calamities enumerated in the preceding paragraph, or of an

earthquake, eruption of a volcano, destructive cyclone, epidemic or any other public calamity

with evident premeditation

with cruelty, by deliberately and inhumanely augmenting the suffering of the victim or
outraging or scoffing at his person or corpse

4. The killing is not parricide or infanticide.

Notes:

While the circumstance of by a band is not among those enumerated that could qualify killing
to murder, it would seem that if the killers constituted a band, the crime is murder because the
circumstance of with the aid of armed men is included in the qualifying circumstances.

The victim must be killed in order to consummate the offense. Otherwise, it would be
attempted or frustrated murder

Killing a person with treachery is murder even if there is no intent to kill.

(People vs.

Cagoco, 58 Phil. 530)

Any of the qualifying circumstances must be alleged in the information. Otherwise, they
will only be considered as generic aggravating circumstances
When the other circumstances are absorbed or included in one qualifying
circumstance, they cannot be treated or separated as generic aggravating
circumstances. (People vs.

Remalante, 92 Phil. 48)

3. Treachery and premeditation are inherent in murder with the use of poison

Ortega Notes:

In murder, any of the following qualifying circumstances is present:

Treachery, taking advantage of superior strength, aid or armed men, or employing means to
waken the defense, or of means or persons to insure or afford impunity;

There is treachery when the offender commits any of the crimes against the person employing
means, methods or forms in the execution thereof that tend directly and especially to insure its
execution without risk to himself arising from the defense which the offended party might make.
164

This circumstance involves means, methods, form in the execution of the killing which
may actually be an aggravating circumstance also, in which case, the treachery absorbs
the same.

Illustration:

A person who is determined to kill resorted to the cover of darkness at nighttime to insure
the killing. Nocturnity becomes a means that constitutes treachery and the killing would
be murder. But if the aggravating circumstance of nocturnity is considered by itself, it is
not one of those which qualify a homicide to murder. One might think the killing is
homicide unless nocturnity is considered as constituting treachery, in which case the
crime is murder.

The essence of treachery is that the offended party was denied the chance to defend
himself because of the means, methods, form in executing the crime deliberately adopted
by the offender. It is a matter of whether or not the offended party was denied the chance
of defending himself.

If the offended was denied the chance to defend himself, treachery qualifies the killing to
murder. If despite the means resorted to by the offender, the offended was able to put up
a defense, although unsuccessful, treachery is not available. Instead, some other
circumstance may be present. Consider now whether such other circumstance qualifies
the killing or not.

Illustration:

If the offender used superior strength and the victim was denied the chance to defend
himself, there is treachery. The treachery must be alleged in the information. But if the
victim was able to put up an unsuccessful resistance, there is no more treachery but the
use of superior strength can be alleged and it also qualifies the killing to murder.

One attendant qualifying circumstance is enough. If there are more than one qualifying
circumstance alleged in the information for murder, only one circumstance will qualify the
killing to murder and the other circumstances will be taken as generic.

To be considered qualifying, the particular circumstance must be alleged in the

information. If what was alleged was not proven and instead another circumstance, not
alleged, was established during the trial, even if the latter constitutes a qualifying
circumstance under Article 248, the same can not qualify the killing to murder. The
accused can only be convicted of homicide.
Generally, murder cannot be committed if at the beginning, the offended had no intent to
kill because the qualifying circumstances must be resorted to with a view of killing the
offended party. So if the killing were at the spur of the moment, even though the victim
was denied the chance to defend himself because of the suddenness of the attack, the
crime would only be homicide. Treachery contemplates that the means, methods and
form in the execution were consciously adopted and deliberately resorted to by the
offender, and were not merely incidental to the killing.

If the offender may have not intended to kill the victim but he only wanted to commit a
crime against him in the beginning, he will still be liable for murder if in the manner of
committing the felony there was treachery and as a consequence thereof the victim died.

This is based on the rule that a person committing a felony shall be liable for the
consequences thereof although different from that which he intended.

Illustration:

The accused, three young men, resented the fact that the victim continued to visit a girl in
their neighborhood despite the warning they gave him. So one evening, after the victim
165

had visited the girl, they seized and tied him to a tree, with both arms and legs around the tree.
They thought they would give him a lesson by whipping him with branches of gumamela until the
victim fell unconscious. The accused left not knowing that the victim died.

The crime committed was murder. The accused deprived the victim of the chance to defend
himself when the latter was tied to a tree. Treachery is a circumstance referring to the manner of
committing the crime. There was no risk to the accused arising from the defense by the victim.

Although what was initially intended was physical injury, the manner adopted by the accused was
treacherous and since the victim died as a consequence thereof, the crime is murder -- although
originally, there was no intent to kill.

When the victim is already dead, intent to kill becomes irrelevant. It is important only if the victim
did not die to determine if the felony is physical injury or attempted or frustrated homicide.

So long as the means, methods and form in the execution is deliberately adopted, even if there
was no intent to kill, there is treachery.

In consideration of price, reward or promises;

Inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a
street car or locomotive, fall of an airship, by means of a motor vehicle, or with the use of other
means involving great waste and ruin;

The only problem insofar as the killing by fire is concerned is whether it would be arson with
homicide, or murder.

When a person is killed by fire, the primordial criminal intent of the offender is considered.

If the primordial criminal intent of the offender is to kill and fire was only used as a means to do
so, the crime is only murder. If the primordial criminal intent of the offender is to destroy property
with the use of pyrotechnics and incidentally, somebody within the premises is killed, the crime is
arson with homicide. But this is not a complex crime under Article 48. This is single indivisible
crime penalized under Article 326, which is death as a consequence of arson. That somebody
died during such fire would not bring about murder because there is no intent to kill in the mind of
the offender. He intended only to destroy property. However, a higher penalty will be applied.

When killing was accomplished by means of fire alleged in the information, it does not qualify
killing to Murder unless the use of fire was employed to kill the victim.
In People v. Pugay and Samson, 167 SCRA 439, there was a town fiesta and the two accused
were at the town plaza with their companions. All were uproariously happy, apparently drenched
with drink. Then, the group saw the victim, a 25 year old retard walking nearby and they made
him dance by tickling his sides with a piece of wood. The victim and the accused Pugay were
friends and, at times, slept in the same place together. Having gotten bored with their form of
entertainment, accused Pugay went and got a can of gasoline and poured it all over the retard.
Then, the accused Samson lit him up, making him a frenzied, shrieking human torch. The retard
died.

It was held that Pugay was guilty of homicide through reckless imprudence. Samson only guilty of
homicide, with the mitigating circumstance of no intention to commit so grave a wrong. There was
no animosity between the two accused and the victim such that it cannot be said that they resort
to fire to kill him. It was merely a part of their fun making but because their acts were felonious,
they are criminally liable.
166

On occasion of any of the calamities enumerated in the preceding paragraph c, or an earthquake,

eruption of volcano, destructive cyclone, epidemic or any other public calamity;

Evident premeditation; and

When the actual victim turns out to be different from the intended victim,
premeditation is not aggravating. (People vs. Guillen, 85 Phil. 307)

Cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or
scoffing at his person or corpse.

Cruelty includes the situation where the victim is already dead and yet, acts were committed
which would decry or scoff the corpse of the victim. The crime becomes murder.

Hence, this is not actually limited to cruelty. It goes beyond that because even if the victim is
already a corpse when the acts deliberately augmenting the wrong done to him were committed,
the killing is still qualified to murder although the acts done no longer amount to cruelty.

Under Article 14, the generic aggravating circumstance of cruelty requires that the victim be alive,
when the cruel wounds were inflicted and, therefore, must be evidence to that effect. Yet, in
murder, aside from cruelty, any act that would amount to scoffing or decrying the corpse of the
victim will qualify the killing to murder.

Illustration:

Two people engaged in a quarrel and they hacked each other, one killing the other. Up to that
point, the crime is homicide. However, if the killer tried to dismember the different parts of the
body of the victim, indicative of an intention to scoff at or decry or humiliate the corpse of the
victim, then what would have murder because this circumstance is recognized under Article 248,
even though it was inflicted or was committed when the victim was already dead.

The following are holdings of the Supreme Court with respect to the crime of murder:

Killing of a child of tender age is murder qualified by treachery because the weakness of the child
due to his tender age results in the absence of any danger to the aggressor.
Evident premeditation is absorbed in price, reward or promise, if without the premeditation the
inductor would not have induced the other to commit the act but not as regards the one induced.

(3 Abuse of superior strength is inherent in and comprehended by the circumstance of

treachery or forms part of treachery.

Treachery is inherent in poison.

Where one of the accused, who were charged with murder, was the wife of the deceased but
here relationship to the deceased was not alleged in the information, she also should be
convicted of murder but the relationship should be appreciated as aggravating.

Killing of the victims hit by hand grenade thrown at them is murder qualified by explosion not by
treachery.

Where the accused housemaid gagged a three year old boy, son of her master, with stockings,
placed him in a box with head down and legs upward and covered the box with some sacks and
other boxes, and the child instantly died because of suffocation, and
167

then the accused demanded ransom from the parents, such did not convert the offense into
kidnapping with murder. The accused was well aware that the child could be suffocated to death
in a few minutes after she left. Ransom was only a part of the diabolical scheme to murder the
child, to conceal his body and then demand money before discovery of the body.

The essence of kidnapping or serious illegal detention is the actual confinement or restraint of the
victim or deprivation of his liberty. If there is no showing that the accused intended to deprive their
victims of their liberty for some time and there being no appreciable interval between their being
taken and their being shot, murder and not kidnapping with murder is committed.

Article 249

HOMICIDE

ELEMENTS:

That a person was killed.

That the accused killed him without any justifying circumstances.

That the accused had the intention to kill, which is presumed.

That the killing was not attended by any of the qualifying circumstances of murder, or by that
of parricide or infanticide.

Notes:

Homicide is the unlawful killing of a person not constituting murder, parricide or infanticide.

Intent to kill is conclusively presumed when death resulted. Hence, evidence of intent to
kill is required only in attempted or frustrated homicide

In all crimes against persons in which the death of the victim is an element, there must
be satisfactory evidence of (1) the fact of death and (2) the identity of the victim
Distinction between homicide and physical injuries:

In attempted or frustrated homicide, there is intent to kill.

In physical injuries, there is none. However, if as a result of the physical injuries inflicted, the
victim died, the crime will be homicide because the law punishes the result, and not the intent of
the act.

The following are holdings of the Supreme Court with respect to the crime of homicide:

Physical injuries are included as one of the essential elements of frustrated homicide.

If the deceased received two wounds from two persons acting independently of each other and
the wound inflicted by either could have caused death, both of them are liable for the death of the
victim and each of them is guilty of homicide.

If the injuries were mortal but were only due to negligence, the crime committed will be serious
physical injuries through reckless imprudence as the element of intent to kill in frustrated
homicide is incompatible with negligence or imprudence.

Where the intent to kill is not manifest, the crime committed has been generally considered as
physical injuries and not attempted or frustrated murder or homicide.
168

When several assailants not acting in conspiracy inflicted wounds on a victim but it cannot be
determined who inflicted which would which caused the death of the victim, all are liable for the
victims death.

Note that while it is possible to have a crime of homicide through reckless imprudence, it is not
possible to have a crime of frustrated homicide through reckless imprudence.

If a boxer killed his opponent in a boxing bout duly licensed by the Government without any
violation of the governing rules and regulations, there is no Homicide to speak of. If he hit his
opponent below the belt without any intention to do so, it is Homicide Through Reckless
Imprudence if the latter died as a result. If he intentionally hit his opponent on that part of his
body causing the death, the crime is Homicide.

The shooting of a peace officer who was fully aware of the risks in pursuing the malefactors
when done in a spur of the moment is only Homicide. (People vs. Porras, 255 SCRA 514).

Common misconception on the meaning of corpus delicti.

Corpus delicti means body of the crime. It does not refer to the body of the
murdered person. In all crimes against persons in which the death of the
victim is an element of the crime, there must be proof of the fact of death
and identity of the victim. (Cortez vs.

Court of Appeals, 162 SCRA 139)

Article 250

PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE

Article 251

DEATH IN A TUMULTOUS AFFRAY

ELEMENTS:

That there be several persons.

That they did not compose groups organized for the common purpose of assaulting and
attacking each other reciprocally.

That these several persons quarreled and assaulted one another in a confused and tumultuous
manner.

That someone was killed in the course of the affray.

That it cannot be ascertained who actually killed the deceased.

That the person or persons who inflicted serious physical injuries or who used violence can be
identified.

Notes:

Tumultuous affray exists when at least 4 persons take part in it

When there are 2 identified groups of men who assaulted each other, there is no
tumultuous affray
169

Persons liable are:

person/s who inflicted serious physical injuries

if it is not known who inflicted serious physical injuries on the deceased, all persons who
used violence upon the person of the victim

If those who actually killed the victim can be determined, they will be the ones to be held liable,
and those who inflicted serious or less serious or slight physical injuries shall be punished for said
corresponding offenses provided no conspiracy is established with the killers.

Tumultuous affray simply means a commotion in a tumultuous and confused manner, to such
an extent that it would not be possible to identify who the killer is if death results, or who inflicted
the serious physical injury, but the person or persons who used violence are known.

It is not a tumultuous affray which brings about the crime; it is the inability to ascertain actual
perpetrator. It is necessary that the very person who caused the death can not be known, not that
he can not be identified. Because if he is known but only his identity is not known, then he will be
charged for the crime of homicide or murder under a fictitious name and not death in a
tumultuous affray. If there is a conspiracy, this crime is not committed.

To be considered death in a tumultuous affray, there must be:

a quarrel, a free-for-all, which should not involve organized group; and

someone who is injured or killed because of the fight.

The person killed in the affray need not be one of the participants.

As long as it cannot be determined who killed the victim, all of those persons who inflicted serious
physical injuries will be collectively answerable for the death of that fellow.

The Revised Penal Code sets priorities as to who may be liable for the death or physical
injury in tumultuous affray:
The persons who inflicted serious physical injury upon the victim;

If they could not be known, then anyone who may have employed violence on that person will
answer for his death.

If nobody could still be traced to have employed violence upon the victim, nobody will answer.
The crimes committed might be disturbance of public order, or if participants are armed, it could
be tumultuous disturbance, or if property was destroyed, it could be malicious mischief.

Article 252

PHYSICAL INJURIES INFLICTED IN A TUMULTOUS AFFRAY

ELEMENTS:

that there is a tumultuous affray as referred to in the preceding article.

That a participant or some participants thereof suffer serious physical injuries or physical
injuries of a less serious nature only.

that the person responsible therefor cannot be identified.

170

That all those who appear to have used violence upon the person of the offended party are
known.

Unlike in Article 251, where the victim need not be one of the participants,
the injured party in the crime of physical injuries inflicted in tumultuous
affray must be one or some of those involved in the quarrel.

In physical injuries caused in a tumultuous affray, the conditions are also the same. But you do
not have a crime of physical injuries resulting from a tumultuous affray if the physical injury is only
slight. The physical injury should be serious or less serious and resulting from a tumultuous
affray. So anyone who may have employed violence will answer for such serious or less serious
physical injury.

If the physical injury sustained is only slight, this is considered as inherent in a tumultuous affray.

The offended party cannot complain if he cannot identify who inflicted the slight physical injuries
on him.

Note that in slight physical injuries is inflicted in the tumultuous affray and
the identity of the offender is established, the provisions of this article will not
be observed. Instead, the offender shall be prosecuted in the ordinary course
of law.

Article 253

GIVING ASSISTANCE TO SUICIDE

Acts punishable:

Assisting another to commit suicide, whether the suicide is consummated or not

Lending his assistance to another to commit suicide to the extent of doing the killing himself

Notes:

Giving assistance to suicide means giving means (arms, poison, etc.) or whatever manner of
positive and direct cooperation (intellectual aid, suggestions regarding the mode of committing
suicide, etc.).

1. A person who attempts to commit suicide is not criminally liable

In this crime, the intention must be for the person who is asking the assistance of another to
commit suicide.

If the intention is not to commit suicide, as when he just wanted to have a picture taken of him to
impress upon the world that he is committing suicide because he is not satisfied with the
government, the crime is held to be inciting to sedition.

He becomes a co-conspirator in the crime of inciting to sedition, but not of giving assistance to
suicide because the assistance must be given to one who is really determined to commit suicide.

A pregnant woman who tried to commit suicide by means of poison but instead of dying,
the fetus in her womb was expelled, is not liable for abortion

Assistance to suicide is different from mercy-killing. Euthanasia/mercy-killing is the

practice of painlessly putting to death a person suffering from some incurable disease. In
this case, the person does not want to die. A doctor who resorts to euthanasia may be
held liable for murder
171

If the person does the killing himself, the penalty is similar to that of homicide, which is reclusion
temporal. There can be no qualifying circumstance because the determination to die must come
from the victim. This does not contemplate euthanasia or mercy killing where the crime is murder,
if without consent; if with consent, covered by Article 253.

In mercy killing, the victim is not in a position to commit suicide. Whoever would heed his advice
is not really giving assistance to suicide but doing the killing himself. In giving assistance to
suicide, the principal actor is the person committing the suicide.

Both in euthanasia and suicide, the intention to the end life comes from the victim himself;
otherwise the article does not apply. The victim must persistently induce the offender to end his
life.

4. Penalty is mitigated if suicide is not successful

Even if the suicide did not materialize, the person giving assistance to suicide is also liable but
the penalty shall be one or two degrees lower depending on whether it is frustrated or attempted
suicide.

The following are holdings of the Supreme Court with respect to this crime:

The crime is frustrated if the offender gives the assistance by doing the killing himself as firing
upon the head of the victim but who did not die due to medical assistance.

The person attempting to commit suicide is not liable if he survives. The accused is liable if he
kills the victim, his sweetheart, because of a suicide pact.

Article 254

DISCHARGE OF FIREARMS
ELEMENTS:

that the offender discharges a firearm against or at another person.

That the offender has no intention to kill that person.

Notes:

This crime cannot be committed through imprudence because it requires that the discharge must
be directed at another.

The offender must shoot at another with any firearm without intention of killing him. If the
firearm is not discharged at a person, the act is not punished under this article

If the firearm is directed at a person and the trigger was pressed but did not fire, the crime is
frustrated discharge of firearm.

If the discharge is not directed at a person, the crime may constitute alarm and scandal.

A discharge towards the house of the victim is not discharge of firearm. On the other
hand, firing a gun against the house of the offended party at random, not knowing in
what part of the house the people were, it is only alarm under art 155.

Usually, the purpose of the offender is only to intimidate or frighten the offended party
172

Intent to kill is negated by the fact that the distance between the victim and the offender
is 200 yards

A person can be held liable for discharge even if the gun was not pointed at the offended
party when it fired for as long as it was initially aimed at or against the offended party

The following are holdings of the Supreme Court with respect to this crime:

If serious physical injuries resulted from discharge, the crime committed is the complex crime of
serious physical injury with illegal discharge of firearm, or if less serious physical injury, the
complex crime of less serious physical injury with illegal discharge of firearm will apply.

Firing a gun at a person even if merely to frighten him constitutes illegal discharge of firearm.

The gun used in the crime must be licensed, or the person using the firearm
must be authorized to carry the same, otherwise, in addition to the crime
punished under this article, accused may also be held liable for illegal
possession of firearm under Republic Act No. 1866 as amended by Republic
Act No. 8294.

Article 255

INFANTICIDE

ELEMENTS:

That a child was killed.

That the deceased child was less than three days (72 hours) of age.

That the accused killed the said child.

Notes:

When the offender is the father, mother or legitimate ascendant, he shall suffer the
penalty prescribed for parricide. If the offender is any other person, the penalty is that for
murder. In either case, the proper qualification for the offense is infanticide

Even if the killer is the mother or the father or the legitimate grandparents, the crime is still
Infanticide and not Parricide. The penalty however, is that for Parricide.

Illustration:

An unmarried woman, A, gave birth to a child, B. To conceal her dishonor, A conspired with C to
dispose of the child. C agreed and killed the child B by burying the child somewhere.

If the child was killed when the age of the child was three days old and above already, the crime
of A is parricide. The fact that the killing was done to conceal her dishonor will not mitigate the
criminal liability anymore because concealment of dishonor in killing the child is not mitigating in
parricide.
173

If the crime committed by A is parricide because the age of the child is three days old or above,
the crime of the co-conspirator C is murder. It is not parricide because he is not related to the
victim.

If the child is less than three days old when killed, both the mother and the stranger commits
infanticide because infanticide is not predicated on the relation of the offender to the offended
party but on the age of the child. In such a case, concealment of dishonor as a motive for the
mother to have the child killed is mitigating.

When infanticide is committed by the mother or maternal grandmother in order to

conceal the dishonor, such fact is only mitigating

The delinquent mother who claims that she committed the offense to conceal the
dishonor must be of good reputation. Hence, if she is a prostitute, she is not entitled to a
lesser penalty because she has no honor to conceal

Concealment of dishonor is not an element of infanticide. It merely lowers the penalty. If the child
is abandoned without any intent to kill and death results as a consequence, the crime committed
is not infanticide but abandonment under Article 276.

If the purpose of the mother is to conceal her dishonor, infanticide through imprudence is not
committed because the purpose of concealing the dishonor is incompatible with the absence of
malice in culpable felonies.

There is no infanticide when the child was born dead, or although born alive it could not
sustain an independent life when it was killed

In our study of persons and family relations, we have learned that birth
determines personality. So fetus becomes a person by the legal fact of birth.
The Civil Code provides that, if the fetus had an intra-uterine life of less than
seven (7) months, it will be considered born only if it survives 24 hours after
the umbilical cord is cut. If such fetus is killed within the 24-hour period, we
have to determine if it would have survived or it would have died
nonetheless, had it not been killed.

A legal problem occurs when a fetus having an intra-uterine life of less than 7
months, born alive, is killed within 24 hours from the time the umbilical cord
is cut. This is so because there is difficulty of determining whether the crime
committed is infanticide or abortion. In such a situation, the court may avail
of expert testimony in order to help it arrive at a conclusion. So, if it is shown
that the infant cannot survive within 24 hours, the crime committed is
abortion; otherwise if it can survive, the crime would be infanticide.

Article 256

INTENTIONAL ABORTION

ELEMENTS:

That there is a pregnant woman.

That violence is exerted, or drugs or beverages administered, or that the accused otherwise acts
upon such pregnant woman.

That as a result of the use of violence or drugs or beverages upon her, or any other act of the
accused, the fetus dies, either in the womb or after having been expelled therefrom.
174

4. That the abortion is intended.

Ortega Notes:

Acts punished

Using any violence upon the person of the pregnant woman;

Acting, but without using violence, without the consent of the woman. (By administering drugs or
beverages upon such pregnant woman without her consent.)

Acting (by administering drugs or beverages), with the consent of the pregnant woman.

Abortion is the violent expulsion of a fetus from the maternal womb. If the fetus has been
delivered but it could not subsist by itself, it is still a fetus and not a person. Thus, if it is killed, the
crime committed is abortion not infanticide.

Distinction between infanticide and abortion

It is infanticide if the victim is already a person less that three days old or 72 hours and is viable
or capable of living separately from the mothers womb.

It is abortion if the victim is not viable but remains to be a fetus.

Abortion is not a crime against the woman but against the fetus. If mother as a consequence of
abortion suffers death or physical injuries, you have a complex crime of murder or physical
injuries and abortion.

In intentional abortion, the offender must know of the pregnancy because the particular criminal
intention is to cause an abortion. Therefore, the offender must have known of the pregnancy for
otherwise, he would not try an abortion.

If the woman turns out not to be pregnant and someone performs an abortion upon her, he is
liable for an impossible crime if the woman suffers no physical injury. If she does, the crime will be
homicide, serious physical injuries, etc.
Under the Article 40 of the Civil Code, birth determines personality. A person is considered born
at the time when the umbilical cord is cut. He then acquires a personality separate from the
mother.

But even though the umbilical cord has been cut, Article 41 of the Civil Code provides that if the
fetus had an intra-uterine life of less than seven months, it must survive at least 24 hours after the
umbilical cord is cut for it to be considered born.

Illustration:

A mother delivered an offspring which had an intra-uterine life of seven months. Before the
umbilical cord is cut, the child was killed.

If it could be shown that had the umbilical cord been cut, that child, if not killed, would have
survived beyond 24 hours, the crime is infanticide because that conceived child is already
considered born.

If it could be shown that the child, if not killed, would not have survived beyond 24 hours, the
crime is abortion because what was killed was a fetus only.

In abortion, the concealment of dishonor as a motive of the mother to commit the abortion upon
herself is mitigating. It will also mitigate the liability of the maternal grandparent of the victim the
175

mother of the pregnant woman if the abortion was done with the consent of the pregnant
woman.

If the abortion was done by the mother of the pregnant woman without the consent of the woman
herself, even if it was done to conceal dishonor, that circumstance will not mitigate her criminal
liability.

But if those who performed the abortion are the parents of the pregnant woman, or either of
them, and the pregnant woman consented for the purpose of concealing her dishonor, the penalty
is the same as that imposed upon the woman who practiced the abortion upon herself .

Frustrated abortion is committed if the fetus that is expelled is viable and, therefore, not dead as
abortion did not result despite the employment of adequate and sufficient means to make the
pregnant woman abort. If the means are not sufficient or adequate, the crime would be an
impossible crime of abortion. In consummated abortion, the fetus must be dead.

One who persuades her sister to abort is a co-principal, and one who looks for a physician to
make his sweetheart abort is an accomplice. The physician will be punished under Article 259 of
the Revised Penal Code.

Article 257

UNINTENTIONAL ABORTION

ELEMENTS:

That there is a pregnant woman.

That violence is used upon such pregnant woman without intending an abortion.

That the violence is intentionally exerted.

That as a result of the violence that fetus dies, either in the womb or after having been expelled
therefrom.
Notes:

Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third
person upon the person of the pregnant woman. Mere intimidation is not enough unless the
degree of intimidation already approximates violence.

If the pregnant woman aborted because of intimidation, the crime committed is not unintentional
abortion because there is no violence; the crime committed is light threats.

If the pregnant woman was killed by violence by her husband, the crime committed is the
complex crime of parricide with unlawful abortion.

While there is no intention on the part of the accused to cause an abortion,

nonetheless, the violence that he employs on the pregnant woman must be
intentional. In other words, only the abortion is unintended.

1. Unintentional abortion can also be committed through negligence

Unintentional abortion may be committed through negligence as it is enough that the use of
violence be voluntary.

Illustration:
176

s
o
ft
d
A ri
q n
u k
a b
rr o
el tt
e l
n e
s o
u n
e t
d h
b e
e h
t i
w p
e .
e
n
A
,
h
u A
s
b b
a e
n c
d a
, m
a e
n s
d o
B a
, n
w g
if r
e y
. t
w h
a a
s t
t h
h e
e s
n tr
p u
r c
e k
g B
n ,
a w
n h
t, o
w A
it b
h o
a rt
io n
n d
r B
e
s d
ul i
t e
e d
d .
a

Tak
e
no
te
th
at
wh
ile
uni
nt
en
tio
nal
ab
ort
ion
ap
pe
ars
to
be
a
cri
me
th
at
sh
oul
d
be
co
m
mi
tte
d
wit
h
del
ibe
rat
e
int
en
t
be
ca
us
e
of
th
e
re
qui
re
me
nt
th
at
th
e
vio
len
ce
em
plo
ye
d
on
th
e
vic
ti
m
mu
st
be
int
en
tio
nal
,
ne
ver
th
ele
ss,
if
th
e
cir
cu
ms
ta
nc
es
of
th
e
ca
se
jus
tifi
es
th
e
ap
pli
cat
ion
of
th
e
ot
he
r
me
an
s
of
co
m
mi
tti
ng
a
fel
on
y
(lik
e
cul
pa
),
th
en
th
e
sa
me
sh
oul
d
be
ap
pli
ed
bu
t
th
e
pe
nal
ty
wil
l
no
t
be
th
e
pe
nal
ty
pro
vid
ed
un
de
r
Art
icl
e
25
7.
Ins
tea
d,
th
e
off
en
de
r
sh
all
be
su
bje
ct
to
th
e
pe
nal
ty
pr
es
cri
be
d
for
si
mp
le
or
rec
kle
ss
im
pr
ud
en
ce
un
de
r
Art
icl
e
36
5.

2.
Th
e
acc
use
d
can
onl
y
be
hel
d
liab
le if
he
kne
w
tha
t
the
wo
ma
n
wa
s
pre
gn
ant

-
DE
BA
TA
BL
E

In
US
v.
Jeff
ry,
15
Phi
l.
391
,
the
Sup
rem
e
Co
urt
sai
d
that
kno
wle
dge
of
pre
gna
ncy
of
the
offe
nde
d
part
y is
not
nec
ess
ary.
In
Pe
opl
e v.
Car
nas
o,
dec
ide
d
on
Apr
il 7,
196
4,
ho
wev
er,
the

Sup
rem
e
Co
urt
hel
d
that
kno
wle
dge
of
pre
gna
ncy
is
req
uire
d in
uni
nte
ntio
nal
abo
rtio
n.

Crit
icis
m:

Un
der
Arti
cle
4,
par
agr
aph
1 of
the
Rev
ise
d
Pen
al
Co
de,
any
per
son
co
mm
ittin
ga
felo
ny
is
cri
min
ally
liab
le
for
all
the
dire
ct,
nat
ural
,
and
logi
cal
con
seq
uen
ces
of
his
felo
nio
us
act
s
alth
oug
h it
ma
y
be
diff
ere
nt
fro
m
that
whi
ch
is
inte
nde
d.
The
act
of
em
plo
yin
g
viol
enc
e or
phy
sica
l
forc
e
upo
n
the
wo
ma
n is
alre
ady
a
felo
ny.
It is
not
mat
eria
l if
offe
nde
r
kne
w
abo
ut
the
wo
ma
n
bei
ng
pre
gna
nt
or
not.

If
the
act
of
viol
enc
e is
not
felo
nio
us,
that
is,
act
of
self
-
def
ens
e,
and
ther
e is
no
kno
wle
dge
of
the
wo
ma
ns
pre
gna
ncy,
ther
e is
no
liabi
lity.
If
the
act
of
viol
enc
e is
not
felo
nio
us,
but
ther
e is
kno
wle
dge
of
the
wo
ma
ns
pre
gna
ncy,
the
offe
nde
r is
liabl
e
for
uni
nte
ntio
nal
abo
rtio
n.

Illus
trati
on:

The
act
of
pus
hin
g
ano
ther
cau
sin
g
her
to
fall
is a
felo
nio
us
act
and
cou
ld
res
ult
in
phy
sica
l
inju
ries
.
Cor
res
pon
din
gly,
if
not
onl
y
phy
sica
l
inju
ries
wer
e
sus
tain
ed
but
abo
rtio
n
als
o
res
ulte
d,
the
felo
nio
us
act
of
pus
hin
g is
the
pro
xim
ate
cau
se
of
the
uni
nte
ntio
nal
abo
rtio
n.

If
the
re
is
no
inte
ntio
n
to
cau
se
ab
orti
on
an
d
neit
her
wa
s
viol
enc
e
exe
rte
d,
art
s
25
6
an
d
25
7
do
es
not
ap
ply

Qu
esti
ons
&
An
sw
ers

1.
A
pre
gna
nt
wo
ma
n
dec
ide
d to
co
mm
it
sui
cid
e.
Sh
e
jum
ped
out
of a
win
do
w
of a
buil
din
g
but
she
lan
ded
on
a
pas
ser
by.
Sh
e
did
not
die
but
an
abo
rtio
n
foll
ow
ed.
Is
she
liab
le
for
uni
nte
ntio
nal
abo
rtio
n?

No.
Wh
at
is
con
tem
plat
ed
in
uni
nte
ntio
nal
abo
rtio
n is
that
the
forc
e or
viol
enc
e
mu
st
co
me
fro
m
ano
ther
. If
it
was
the
wo
ma
n
doi
ng
the
viol
enc
e
upo
n
her
self
, it
mu
st
be
to
brin
g
abo
ut
an
abo
rtio
n,
and
ther
efor
e,
the
cri
me
will
be
inte
ntio
nal
abo
rtio
n.
In
this
cas
e,
wh
ere
the
wo
ma
n
trie
d to
co
mm
it
suic
ide,
the
act
of
tryi
ng
to
co
mm
it
suic
ide
is
not
a
felo
ny
und
er
the
Rev
ise
d
Pen
al
Co
de.
The
one
pen
aliz
ed
in
suic
ide
is
the
one
givi
ng
assi
sta
nce
and
not
the
per
son
tryi
ng
to
co
mm
it
suic
ide.

2. If
the
abo
rtiv
e
dru
g
use
d in
abo
rtio
n is
a
pro
hibi
ted
dru
g
or
reg
ulat
ed
dru
g
und
er
Pre
sid
enti
al
De
cre
e
No.
642
5
(Th
e
Da
nge
rou
s
Dru
gs
Act
of
197
2),
as
am
end
ed,
wh
at
are
the
cri
me
s
co
mm
itte
d?

The
cri
me
s
co
mm
itte
d
are
(1)
inte
ntio
nal
abo
rtio
n;
and
(2)
viol
atio
n of
the
Da
nge
rou
s
Dru
gs
Act
of
197
2.
177

Article 258

ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS

ELEMENTS :

That there is a pregnant woman who has suffered an abortion.

That the abortion is intended.

That the abortion is caused by

the pregnant woman herself

any other person, with her consent, or

any of her parents, with her consent for the purpose of concealing her dishonor.

Notes:

Liability of the pregnant woman is mitigated if the purpose is to conceal her dishonor.
However, there is no Mitigation for the parents of the pregnant women even if their
purpose is to conceal their daughters dishonor

In infanticide, parents can avail of the mitigating circumstance of concealing the dishonor
of their daughter. This is not so for art 258

Article 259
ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING
OF ABORTIVES

ELEMENTS:

That there is a pregnant woman who has suffered an abortion.

That the abortion is intended.

That the offender, who must be a physician or midwife, causes or assists in causing the
abortion.

That said physician or midwife takes advantage of his or her scientific knowledge or skill.

Notes:

It is not necessary that the pharmacist knew that the abortive would be used to cause
abortion. What is punished is the act of dispensing an abortive without the proper
prescription. It is not necessary that the abortive be actually used

If the pharmacist knew that the abortive would be used to cause abortion and abortion
results, he is liable as an accomplice

If the abortion is produced by a physician to save the life of the mother, there is no liability. This is
known as a therapeutic abortion. But abortion without medical necessity to warrant it is
punishable even with the consent of the woman or her husband.

Illustration:
178

A woman who is pregnant got sick. The doctor administered a medicine which resulted in
Abortion. The crime committed was unintentional abortion through negligence or imprudence.

Question & Answer

What is the liability of a physician who aborts the fetus to save the life of the mother?

None. This is a case of therapeutic abortion which is done out of a state of necessity.

Therefore, the requisites under Article 11, paragraph 4, of the Revised Penal Code must be
present. There must be no other practical or less harmful means of saving the life of the mother to
make the killing justified.

Article 260

RESPONSIBILITY OF PARTICIPANTS IN A DUEL

Acts punished:

Killing ones adversary in a duel

Inflicting upon the adversary serious physical injuries

Making a combat although no physical injuries have been inflicted

Persons liable:
Principals person who killed or inflicted physical injuries upon his adversary, or both
combatants in any other cases

Accomplices as seconds

The person who killed or injured his adversary. If both survive, both will be
liable for the crime of duel as principals by direct participation. The seconds
will be held liable as accomplices.

Notes:

Duel: a formal or regular combat previously concerted between 2 parties in the presence
of 2 or more seconds of lawful age on each side, who make the selection of arms and fix
all the other conditions of the fight

If death results, the penalty is the same as that for homicide

While the agreement is to fight to the death, the law will disregard the
intent to kill, if only physical injuries is inflicted. The crime will not be
classified as attempted or frustrated homicide.

If the accused and the deceased, after a verbal heated argument in a bar, left the place at the same
time and pursuant to their agreement, went to the plaza to fight each other to death with knives
which they bought on the way, the facts do not constitute the crime of dueling since there were no
seconds who fixed the conditions of the fight in a more or less formal manner. If one was killed,
the crime committed would be Homicide.

There is no such crime nowadays because people hit each other even without entering into any
pre-conceived agreement. This is an obsolete provision.
179

Article 261

CHALLENGING TO A DUEL

Acts punishable:

Challenging another to a duel

Inciting another to give or accept a challenge to a duel

Scoffing at or decrying another publicly for having refused to accept a challenge to fight a
duel

Persons liable:

Challenger

Instigators

If the challenge is only to fight, without the challenger having in mind a

formal combat to be agreed upon with the assistance of seconds as
contemplated under the law, the crime committed will only be grave or light
threat as the case may be.

Illustration:

If one challenges another to a duel by shouting Come down, Olympia, let us measure your
prowess. We will see whose intestines will come out. You are a coward if you do not come down,
the crime of challenging to a duel is not committed. What is committed is the crime of light threats
under Article 285, paragraph 1 of the Revised Penal Code.
PHYSICAL INJURIES

Article 262

MUTILATION

Kinds of Mutilation

Intentionally mutilating another by depriving him, totally or partially, of some essential

organ for reproduction

Intentionally making another mutilation, i.e. lopping, clipping off any part of the body of
the offended party, other than the essential organ for reproduction, to deprive him of that
part of the body

Elements:

There be a castration i.e. mutilation of organs necessary for generation

Mutilation is caused purposely and deliberately

Notes:

Mutilation is the lopping or clipping off of some part of the body.

180

The intent to deliberately cut off the particular part of the body that was removed from the
offended party must be established. If there is no intent to deprive victim of particular part of body,
the crime is only serious physical injury.

The common mistake is to associate this with the reproductive organs only. Mutilation includes
any part of the human body that is not susceptible to grow again.

If what was cut off was a reproductive organ, the penalty is much higher than that for homicide.

This cannot be committed through criminal negligence.

In the first kind of mutilation, the castration must be made purposely. Otherwise, it will be
considered as mutilation of the second kind

Mayhem: refers to any other intentional mutilation

Article 263

SERIOUS PHYSICAL INJURIES

How Committed

Wounding

Beating

Assaulting

Administering injurious substances

In one case, the accused, while conversing with the offended party, drew the latters bolo from its
scabbard. The offended party caught hold of the edge of the blade of his bolo and wounded
himself. It was held that since the accused did not wound, beat or assault the offended party, he
can not be guilty of serious physical injuries.

What are serious physical injuries:

Injured person becomes insane, imbecile, impotent or blind

Injured person

loses the use of speech or the power to hear or to smell, loses an eye, a hand, foot, arm or leg

loses the use of any such member

becomes incapacitated for the work in which he had been habitually engaged

Injured person

becomes deformed

loses any other member of his body

loses the use thereof

181

becomes ill or incapacitated for the performance of the work in which he had been habitually
engaged in for more than 90 days

Injured person becomes ill or incapacitated for labor for more than 30 days (but not more than
90 days)

Notes:

The crime of physical injuries is a crime of result because under our laws the crime of physical
injuries is based on the gravity of the injury sustained. So this crime is always consummated.

The reason why there is no attempted or frustrated physical injuries is because the crime of
physical injuries is determined on the gravity of the injury. As long as the injury is not there, there
can be no attempted or frustrated stage thereof.

Serious physical injuries may be committed through reckless imprudence or simple

imprudence

There must be no intent to kill

Impotent should include inability to copulate and sterility

Blindness requires lost of vision in both eyes. Mere weakness in vision is not
contemplated

Loss of power to hear must involve both ears. Otherwise, it will be considered as
serious physical injuries under par 3

Loss of use of hand or incapacity of usual work in par 2 must be permanent

Par 2 refers to principal members of the body. Par 3 on the other hand, covers any other
member which is not a principal part of the body. In this respect, a front tooth is
considered as a member of the body, other than a principal member
Deformity: means physical ugliness, permanent and definite abnormality. Not curable
by natural means or by nature. It must be conspicuous and visible. Thus, if the scar is
usually covered by a dress, it would not be conspicuous and visible

The loss of 3 incisors is a visible deformity. Loss of one incisor is not. However, loss of
one tooth which impaired appearance is a deformity

Deformity by loss of teeth refers to injury which cannot be impaired by the action of the
nature

Loss of both outer ears constitutes deformity and also loss of the power to hear.
Meanwhile, loss of the lobule of the ear is only a deformity

Loss of the index and middle fingers is either a deformity or loss of a member, not a
principal one of his body or use of the same

Loss of the power to hear in the right ear is considered as merely loss of use of some
other part of the body

If the injury would require medical attendance for more than 30 days, the illness of the
offended party may be considered as lasting more than 30 days. The fact
182

that there was medical attendance for that period of time shows that the injuries were not
cured for that length of time

Under par 4, all that is required is illness or incapacity, not medical attendance

In determining incapacity, the injured party must have an avocation at the time of the
injury. Work: includes studies or preparation for a profession

When the category of the offense of serious physical injuries depends on the period of
the illness or incapacity for labor, there must be evidence of the length of that period.
Otherwise, the offense will only be considered as slight physical injuries

There is no incapacity if the injured party could still engage in his work although less
effectively than before

Serious physical injuries is qualified when the crime is committed against the same
persons enumerated in the article on parricide or when it is attended by any of the
circumstances defining the crime of murder. However, serious physical injuries resulting
from excessive chastisement by parents is not qualified serious physical injuries

Ortega Notes:

Classification of physical injuries:

Between slight physical injuries and less serious physical injuries, you have a duration of one to
nine days if slight physical injuries; or 10 days to 20 days if less serious physical injuries.
Consider the duration of healing and treatment.

The significant part here is between slight physical injuries and less serious physical injuries. You
will consider not only the healing duration of the injury but also the medical attendance required to
treat the injury. So the healing duration may be one to nine days, but if the medical treatment
continues beyond nine days, the physical injuries would already qualify as less serious physical
injuries. The medical treatment may have lasted for nine days, but if the offended party is still
incapacitated for labor beyond nine days, the physical injuries are already considered less
serious physical injuries.

Between less serious physical injuries and serious physical injuries, you do not consider the
period of medical treatment. You only consider the period when the offended party is rendered
incapacitated for labor.
If the offended party is incapacitated to work for less than 30 days, even though the treatment
continued beyond 30 days, the physical injuries are only considered less serious because for
purposes of classifying the physical injuries as serious, you do not consider the period of medical
treatment. You only consider the period of incapacity from work.

When the injury created a deformity upon the offended party, you disregard the healing duration
or the period of medical treatment involved. At once, it is considered serious physical injuries.

So even though the deformity may not have incapacitated the offended party from work, or even
though the medical treatment did not go beyond nine days, that deformity will bring about the
crime of serious physical injuries.

Deformity requires the concurrence of the following conditions:

183

The injury must produce ugliness;

It must be visible;

The ugliness will not disappear through natural healing process.

Illustration:

Loss of molar tooth This is not deformity as it is not visible.

Loss of permanent front tooth This is deformity as it is visible and permanent.

Loss of milk front tooth This is not deformity as it is visible but will be naturally replaced.

Question & Answer

The offender threw acid on the face of the offended party. Were it not for timely medical attention,
a deformity would have been produced on the face of the victim. After the plastic surgery, the
offended party was more handsome than before the injury. What crime was committed? In what
stage was it committed?

The crime is serious physical injuries because the problem itself states that the injury would have
produced a deformity. The fact that the plastic surgery removed the deformity is immaterial
because in law what is considered is not the artificial treatment but the natural healing process.

In a case decided by the Supreme Court, accused was charged with serious physical injuries
because the injuries produced a scar. He was convicted under Article 263 (4). He appealed
because, in the course of the trial, the scar disappeared. It was held that accused can not be
convicted of serious physical injuries. He is liable only for slight physical injuries because the
victim was not incapacitated, and there was no evidence that the medical treatment lasted for
more than nine days.

Serious physical injuries is punished with higher penalties in the following cases:
If it is committed against any of the persons referred to in the crime of parricide under

Article 246;

If any of the circumstances qualifying murder attended its commission.

Thus, a father who inflicts serious physical injuries upon his son will be liable for qualified serious
physical injuries.

Republic Act No. 8049 (The Anti-Hazing Law)

Hazing -- This is any initiation rite or practice which is a prerequisite for admission into
membership in a fraternity or sorority or any organization which places the neophyte or applicant
in some embarrassing or humiliating situations or otherwise subjecting him to physical or
psychological suffering of injury. These do not include any physical, mental, psychological testing
and training procedure and practice to determine and enhance the physical and psychological
fitness of the prospective regular members of the below.

Organizations include any club or AFP, PNP, PMA or officer or cadet corps of the CMT or CAT.

Section 2 requires a written notice to school authorities from the head of the organization seven
days prior to the rites and should not exceed three days in duration.

Section 3 requires supervision by head of the school or the organization of the rites.
184

Section 4 qualifies the crime if rape, sodomy or mutilation results therefrom, if the person
becomes insane, an imbecile, or impotent or blind because of such, if the person loses the use of
speech or the power to hear or smell or an eye, a foot, an arm or a leg, or the use of any such
member or any of the serious physical injuries or the less serious physical injuries. Also if the
victim is below 12, or becomes incapacitated for the work he habitually engages in for 30, 10, 1-9
days.

It holds the parents, school authorities who consented or who had actual knowledge if they did
nothing to prevent it, officers and members who planned, knowingly cooperated or were present,
present alumni of the organization, owner of the place where such occurred liable.

Makes presence a prima facie presumption of guilt for such.

Article 264

ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES

ELEMENTS:

That the offender inflicted upon another person any serious physical injury

That it was done knowingly administering to him any injurious substances or beverages or by
taking advantage of his weakness of mind of credulity

He had no intent to kill

Notes:

The article under consideration does not deal with a crime. It refers to means
of committing serious physical injuries.

It is frustrated murder when there is intent to kill

Administering means introducing into the body the substance, thus throwing of the acid
in the face is not contemplated

Article 265

LESS SERIOUS PHYSICAL INJURIES

ELEMENTS:

That the offended party is incapacitated for labor for 10 days or more (but not more than 30
days), or needs medical attendance for the same period of time

That the physical injuries must not be those described in the preceding articles

Notes:

Circumstances qualifying the offense:

when there is manifest intent to insult or offend the injured person

when there are circumstances adding ignominy to the offense

185

when the victim is either the offenders parents, ascendants, guardians, curators or
teachers

when the victim is a person of rank or person in authority, provided the crime is not direct
assault

It falls under this article even if there was no incapacity but the medical treatment was for
13 days

In this article, the offended party is incapacitated from work for ten (10) days
or more but not more than thirty (30) days. If the injury causes the illness of
the victim, the healing duration must be more than nine (9) days but not
more than thirty (30) days.

Article 265 is an exception to Article 48 in relation to complex crimes as the latter only takes place
in cases where the Revised Penal Code has no specific provision penalizing the same with a
definite, specific penalty. Hence, there is no complex crime of slander by deed with less serious
physical injuries but only less serious physical injuries if the act which was committed produced
the less serious physical injuries with the manifest intent to insult or offend the offended party, or
under circumstances adding ignominy to the offense.

Article 266

SLIGHT PHYSICAL INJURIES

Kinds:

That which incapacitated the offended party for labor from 1-9 days or required medical
attendance during the same period

That which did not prevent the offended party from engaging in his habitual work or which did
not require medical attendance (ex. Black-eye)

Ill-treatment of another by deed without causing any injury (ex. slapping but without causing
dishonor)
This involves even ill-treatment where there is no sign of injury requiring medical treatment.

Slapping the offended party is a form of ill-treatment which is a form of slight physical injuries.

But if the slapping is done to cast dishonor upon the person slapped, the crime is slander by
deed. If the slapping was done without the intention of casting dishonor, or to humiliate or
embarrass the offended party out of a quarrel or anger, the crime is still ill-treatment or slight
physical injuries.

The crime is slight physical injury if there is no proof as to the period of the offended partys
incapacity for labor or of the required medical attendance.

Republic Act No. 7610 (Special Protection of Children against Child Abuse,
Exploitation and Discrimination Act), in relation to murder, mutilation or injuries to a
child

The last paragraph of Article VI of Republic Act No. 7610, provides:

For purposes of this Act, the penalty for the commission of acts punishable under Articles 248,

249, 262 (2) and 263 (1) of Act No 3815, as amended of the Revised Penal Code for the crimes
186

of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall
be reclusion perpetua when the victim is under twelve years of age.

The provisions of Republic Act No. 7160 modified the provisions of the Revised Penal Code in so
far as the victim of the felonies referred to is under 12 years of age. The clear intention is to
punish the said crimes with a higher penalty when the victim is a child of tender age. Incidentally,
the reference to Article 249 of the Code which defines and penalizes the crime of homicide were
the victim is under 12 years old is an error. Killing a child under 12 is murder, not homicide,
because the victim is under no position to defend himself as held in the case of People v.

Ganohon, 196 SCRA 431.

For murder, the penalty provided by the Code, as amended by Republic Act No. 7659, is
reclusion perpetua to death higher than what Republic Act no. 7610 provides. Accordingly,
insofar as the crime is murder, Article 248 of the Code, as amended, shall govern even if the
victim was under 12 years of age. It is only in respect of the crimes of intentional mutilation in
paragraph 2 of Article 262 and of serious physical injuries in paragraph 1 of Article 263 of the
Code that the quoted provision of Republic Act No. 7160 may be applied for the higher penalty
when the victim is under 12 years old.

RAPE

ART 266-A RAPE

The Anti-Rape Law of 1997 (RA 8353) now classified the crime of rape as Crime Against
Persons incorporated into Title 8 of the RPC to be known as Chapter 3

ELEMENTS:

Rape is committed

By a man who have carnal knowledge of a woman under any of the following circumstances:

through force, threat or intimidation

when the offended party is deprived of reason or otherwise unconscious

by means of fraudulent machination or grave abuse of authority

when the offended party is under 12 years of age or is demented, even though none of the
circumstances mentioned above be present

By any person who, under any of the circumstances mentioned in par 1 hereof, shall commit
an act of sexual assault by inserting

his penis into another persons mouth or anal orifice, or

any instrument or object, into the genital or anal orifice of another person

Rape committed under par 1 is punishable by:

reclusion perpetua

reclusion perpetua to DEATH when

victim became insane by reason or on the occasion of rape

the rape is attempted and a homicide is committed by reason or on the occasion thereof
187

DEATH when

homicide is committed

victim under 18 years and offender is:

parent

ascendant

step-parent

guardian

relative by consanguinity or affinity with the 3rd civil degree or

common law spouse of parent of victim

under the custody of the police or military authorities or any law enforcement or penal
institution

committed in full view of the spouse, parent or any of the children or other relatives
within the 3rd degree of consanguinity

victim is a religious engaged in legitimate religious vocation or calling and is personally

known to be such by the offender before or at the time of the commission of the crime

a child below 7 years old

offender knows he is afflicted with HIV or AIDS or any other sexually transmissible
disease and the virus is transmitted to the victim
offender; member of the AFP, or para-military units thereof, or the PNP, or any law
enforcement agency or penal institution, when the offender took advantage of his
position to facilitate the commission of the crime

victim suffered permanent physical mutilation or disability

the offender knew of the pregnancy of the offended party at the time of the commission
of the crime; and

when the offender knew of the mental disability, emotional disorder and/or physical
handicap or the offended party at the time of the commission of the crime

Rape committed under par 2 is punishable by:

prision mayor

prision mayor to reclusion temporal

use of deadly weapon or

by two or more persons

reclusion temporal when the victim has become insane

reclusion temporal to reclusion pepetua rape is attempted and homicide is

committed

reclusion perpetua homicide is committed by reason or on occasion of rape

188

reclusion temporal committed with any of the 10 aggravating circumstances

mentioned above

Notes:

Dividing age in rape:

less than 7 yrs old, mandatory death

less than 12 yrs old, statutory rape

less than 18 yrs old and there is relationship (e.g. parent etc); mandatory death

Because of this amendment which reclassified rape as a crime against

persons, an impossible crime may now be committed in case of rape; that is,
if there is inherent impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.

The case of People vs. Orita (G.R. No. 88724, April 3, 1990), laid a new doctrine
in Philippine penal law insofar as the crime of rape is concerned, as it finally
did away with frustrated rape and allowed only attempted rape and
consummated rape to remain in our statute books.

The act of touching should be understood as inherently part of the entry of

the penis into the labia of the female organ and not the mere touching alone
of the mons pubis or the pudendum. Jurisprudence dictates that the labia
majora (or he outer lips of the female organ) must be entered for rape to be
consummated, and not merely for the penis to stroke the surface of the
female organ. Thus, grazing of the surface of the female organ or touching
the mons pubis of the pudendum is not sufficient to constitute rape. ( Pp vs.
Campuhan)

Classification of rape

Traditional concept under Article 335 carnal knowledge with a woman against her will. The
offended party is always a woman and the offender is always a man.
Sexual assault - committed with an instrument or an object or use of the penis with penetration
of mouth or anal orifice. The offended party or the offender can either be man or woman, that is, if
a woman or a man uses an instrument on anal orifice of male, she or he can be liable for rape.

Since rape is not a private crime anymore, it can be prosecuted even if the woman does not file a
complaint.

If carnal knowledge was made possible because of fraudulent machinations and grave abuse of
authority, the crime is rape. This absorbs the crime of qualified and simple seduction when no
force or violence was used, but the offender abused his authority to rape the victim.

Under Article 266-C, the offended woman may pardon the offender through a subsequent valid
marriage, the effect of which would be the extinction of the offenders liability. Similarly, the legal
husband may be pardoned by forgiveness of the wife provided that the marriage is not void ab
initio. Obviously, under the new law, the husband may be liable for rape if his wife does not want
to have sex with him. It is enough that there is indication of any amount of resistance as to make
it rape.

Incestuous rape was coined in Supreme Court decisions. It refers to rape committed by an
ascendant of the offended woman. In such cases, the force and intimidation need not be of such
nature as would be required in rape cases had the accused been a stranger. Conversely, the

Supreme Court expected that if the offender is not known to the woman, it is necessary that there
189

be evidence of affirmative resistance put up by the offended woman. Mere no, no is not enough
if the offender is a stranger, although if the rape is incestuous, this is enough.

The new rape law also requires that there be a physical overt act manifesting resistance, if the
offended party was in a situation where he or she is incapable of giving valid consent, this is
admissible in evidence to show that carnal knowledge was against his or her will.

When the victim is below 12 years old, mere sexual intercourse with her is already rape. Even if it
was she who wanted the sexual intercourse, the crime will be rape. This is referred to as
statutory rape.

If the victim however is exactly twelve (12) years old (she was raped on her birthday) or
more, and there is consent, there is no rape. However, Republic Act No. 7610, Sec. 5 (b)
provides that: Even if the victim is over twelve (12) year old and the carnal act was with
her consent as long as she falls under the classification of a child exploited in prostitution
and other sexual abuse, the crime is rape.

In other cases, there must be force, intimidation, or violence proven to have been exerted to bring
about carnal knowledge or the woman must have been deprived of reason or otherwise
unconscious.

It is not necessary that the force or intimidation employed be so great or of such character as
could not be resisted it is only necessary that it be sufficient to consummate the purpose which
the accused had in mind. (People vs. Canada, 253 SCRA 277).

Carnal knowledge with a woman who is asleep constitutes Rape since she was either deprived of
reason or otherwise unconscious at that time. (People vs. Caballero, 61 Phil. 900).

Sexual intercourse with an insane, deranged or mentally deficient, feeble-minded or idiotic

woman is Rape pure and simple. The deprivation of reason contemplated by law need not be
complete; mental abnormality or deficiency is sufficient.

Where the victim is over 12 years old, it must be shown that the carnal knowledge with her was
obtained against her will. It is necessary that there be evidence of some resistance put up by the
offended woman. It is not, however, necessary that the offended party should exert all her efforts
to prevent the carnal intercourse. It is enough that from her resistance, it would appear that the
carnal intercourse is against her will.
Mere initial resistance, which does not indicate refusal on the part of the offended party to the
sexual intercourse, will not be enough to bring about the crime of rape.

Note that it has been held that in the crime of rape, conviction does not require medico-legal
finding of any penetration on the part of the woman. A medico-legal certificate is not necessary or
indispensable to convict the accused of the crime of rape.

It has also been held that although the offended woman who is the victim of the rape failed to
adduce evidence regarding the damages to her by reason of the rape, the court may take judicial
notice that there is such damage in crimes against chastity. The standard amount given now is P
50,000.00, with or without evidence of any moral damage.

An accused may be convicted of rape on the sole testimony of the offended woman. It does not
require that testimony be corroborated before a conviction may stand. This is particularly true if
the commission of the rape is such that the narration of the offended woman would lead to no
other conclusion except that the rape was committed.

Illustration:

Daughter accuses her own father of having raped her.

190

Allegation of several accused that the woman consented to their sexual intercourse with her is a
proposition which is revolting to reason that a woman would allow more than one man to have
sexual intercourse with her in the presence of the others.

It has also been ruled that rape can be committed in a standing position because complete
penetration is not necessary. The slightest penetration contact with the labia will consummate
the rape.

On the other hand, as long as there is an intent to effect sexual cohesion, although unsuccessful,
the crime becomes attempted rape. However, if that intention is not proven, the offender can only
be convicted of acts of lasciviousness.

The main distinction between the crime of attempted rape and acts of lasciviousness is the intent
to lie with the offended woman.

In a case where the accused jumped upon a woman and threw her to the ground, although the
accused raised her skirts, the accused did not make any effort to remove her underwear. Instead,
he removed his own underwear and placed himself on top of the woman and started performing
sexual movements. Thereafter, when he was finished, he stood up and left. The crime committed
is only acts of lasciviousness and not attempted rape. The fact that he did not remove the
underwear of the victim indicates that he does not have a real intention to effect a penetration. It
was only to satisfy a lewd design.

The new law, R.A. 8353, added new circumstance that is, when carnal knowledge was had by
means of fraudulent machinations or grave abuse of authority. It would seem that if a woman of
majority age had sexual intercourse with a man through the latters scheme of pretending to
marry her which is the condition upon which the woman agreed to have sex with him,
manipulating a sham marriage, the man would be guilty of Rape under this Section. So also, a
prostitute who willingly had sexual congress with a man upon the latters assurance that she
would be paid handsomely, may be guilty of Rape if later on he refuses to pay the said amount.

A person in authority who maneuvered a scheme where a woman landed in jail, and who upon
promise of being released after having sex with the officer, willingly consented to the sexual act,
may also be found guilty of Rape under this new section.

In Rape cases, court must always be guided by the following principles:

An accusation of rape can be made with facility; it is difficult to prove, but more difficult for the
person accused, though innocent, to disprove;
In view of the intrinsic nature of the crime where only two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme caution; and

The evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to
draw strength from the weakness of the evidence for the defense. (People vs. Ricafort).

TITLE NINE

CRIMES AGAINST PERSONAL LIBERTY AND SECURITY

Crimes against liberty

Kidnapping and serious illegal detention (Art. 267);

Slight illegal detention (Art. 268);

Unlawful arrest (Art. 269);

191

Kidnapping and failure to return a minor (Art. 270);

Inducing a minor to abandon his home (Art. 271);

Slavery (Art. 272);

Exploitation of child labor (Art. 273);

Services rendered under compulsion in payment of debts (Art. 274).

Crimes against security

Abandonment of persons in danger and abandonment of one's own victim (Art. 275);

Abandoning a minor (Art. 276);

Abandonment of minor by person entrusted with his custody; indifference of parents (Art.
277);

Exploitation of minors (Art. 278);

Trespass to dwelling (Art. 280);

Other forms of trespass (Art. 281);

Grave threats (Art. 282);

Light threats (Art. 283);

Other light threats (Art. 285);

Grave coercions (Art. 286);

Light coercions (Art. 287);

Other similar coercions (Art. 288);

Formation, maintenance and prohibition of combination of capital or labor through

violence or threats (Art. 289);

Discovering secrets through seizure of correspondence (Art. 290);

Revealing secrets with abus of office (Art. 291);

Revealing of industrial secrets (Art. 292).

Article 267

KIDNAPPING AND SERIOUS ILLEGAL DETENTION

192

ELEMENTS:

Offender is a private individual

He kidnaps or detains another, or in any other manner deprives the latter of his liberty

The act of detention or kidnapping must be illegal

That in the commission of the offense, any of the following circumstances are present
(becomes serious)

that the kidnapping/detention lasts for more than 3 days

that it is committed simulating public authority

that any serious physical injuries are inflicted upon the person kidnapped or detained or
threats to kill him are made, or

that the person kidnapped or detained is a minor (except if parent is the offender), female or
a public officer

Note: When death penalty is imposed:

If kidnapping is committed for the purpose of extorting ransom either from the victim or
from any other person even if none of the aforementioned are present in the commission
of the offense (even if none of the circumstances are present)

When the victim is killed or dies as a consequence of the detention or is raped or is

subjected to torture or dehumanizing acts

The essence of the offense is the actual deprivation of the victims liberty coupled with the intent
of the accused to effect it. There must be indubitable proof that the actual intent of the malefactor
was to deprive the offended party of liberty. The restraint however need not be permanent.
(People vs. Godoy, 250 SCRA 676).

Ortega Notes:

When a public officer conspires with a private person in the commission of any of the crimes
under Title IX, the crime is also one committed under this title and not under Title II.

Illustration:

If a private person commits the crime of kidnapping or serious illegal detention, even though a
public officer conspires therein, the crime cannot be arbitrary detention. As far as that public
officer is concerned, the crime is also illegal detention.

In the actual essence of the crime, when one says kidnapping, this connotes the idea of
transporting the offended party from one place to another. When you think illegal detention, it
connotes the idea that one is restrained of his liberty without necessarily transporting him from
one place to another.

The crime of kidnapping is committed if the purpose of the offender is to extort ransom either
from the victim or from any other person. But if a person is transported not for ransom, the crime
can be illegal detention. Usually, the offended party is brought to a place other than his own, to
detain him there.

When one thinks of kidnapping, it is not only that of transporting one person from one place to
another. One also has to think of the criminal intent.
193

Forcible abduction -- If a woman is transported from one place to another by virtue of restraining
her of her liberty, and that act is coupled with lewd designs.

Serious illegal detention If a woman is transported just to restrain her of her liberty. There is
no lewd design or lewd intent.

Grave coercion If a woman is carried away just to break her will, to compel her to agree to the
demand or request by the offender.

In a decided case, a suitor, who cannot get a favorable reply from a woman, invited the woman to
ride with him, purportedly to take home the woman from class. But while the woman is in his car,
he drove the woman to a far place and told the woman to marry him. On the way, the offender
had repeatedly touched the private parts of the woman. It was held that the act of the offender of
touching the private parts of the woman could not be considered as lewd designs because he
was willing to marry the offended party. The Supreme Court ruled that when it is a suitor who
could possibly marry the woman, merely kissing the woman or touching her private parts to

compel her to agree to the marriage, such cannot be characterized as lewd design. It is
considered merely as the passion of a lover. But if the man is already married, you cannot
consider that as legitimate but immoral and definitely amounts to lewd design.

If a woman is carried against her will but without lewd design on the part of the offender, the
crime is grave coercion.

Illustration:

Tom Cruz invited Nicole Chizmacks for a snack. They drove along Roxas Boulevard, along the
Coastal Road and to Cavite. The woman was already crying and wanted to be brought home.
Tom imposed the condition that Nicole should first marry him. Nicole found this as, simply, a
mission impossible. The crime committed in this case is grave coercion. But if after they drove to

Cavite, the suitor placed the woman in a house and would not let her out until she agrees to
marry him, the crime would be serious illegal detention.

If the victim is a woman or a public officer, the detention is always serious no matter how short
the period of detention is.

Distinction between illegal detention and arbitrary detention

Illegal detention is committed by a private person who kidnaps, detains, or otherwise deprives
another of his liberty.

Arbitrary detention is committed by a public officer who detains a person without legal grounds.

The penalty for kidnapping is higher than for forcible abduction. This is wrong because if the
offender knew about this, he would perform lascivious acts upon the woman and be charged only
for forcible abduction instead of kidnapping or illegal detention. He thereby benefits from this
absurdity, which arose when Congress amended Article 267, increasing the penalty thereof,
without amending Article 342 on forcible abduction.

Article 267 has been modified by Republic Act No. 7659 in the following respects:

Illegal detention becomes serious when it shall have lasted for more than three days, instead of
five days as originally provided;

In paragraph 4, if the person kidnapped or detained was a minor and the offender was anyone of
the parents, the latter has been expressly excluded from the provision. The liability of the parent
is provided for in the last paragraph of Article 271;

A paragraph was added to Article 267, which states:

194

When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to
torture, or dehumanizing acts, the maximum penalty shall be imposed.

This amendment brings about a composite crime of kidnapping with homicide when it is the victim
of the kidnapping who was killed, or dies as a consequence of the detention and, thus, only one
penalty is imposed which is death.

Article 48, on complex crimes, does not govern in this case. But Article 48 will govern if any other
person is killed aside, because the provision specifically refers to victim. Accordingly, the rulings
in cases of People v. Parulan, People v. Ging Sam, and other similar cases where the accused
were convicted for the complex crimes of kidnapping with murder have become academic.

In the composite crime of kidnapping with homicide, the term homicide is used in the generic
sense and, thus, covers all forms of killing whether in the nature of murder or otherwise. It does
not matter whether the purpose of the kidnapping was to kill the victim or not, as long as the
victim was killed, or died as a consequence of the kidnapping or detention. There is no more
separate crime of kidnapping and murder if the victim was kidnapped not for the purpose of killing
her.

If the victim was raped, this brings about the composite crime of kidnapping with rape. Being a
composite crime, not a complex crime, the same is regarded as a single indivisible offense as in
fact the law punishes such acts with only a single penalty. In a way, the amendment depreciated
the seriousness of the rape because no matter how many times the victim was raped, there will
only be one kidnapping with rape. This would not be the consequence if rape were a separate
crime from kidnapping because each act of rape would be a distinct count.

However for the crime to be kidnapping with rape, the offender should not have taken the victim
with lewd designs as otherwise the crime would be forcible abduction; and if the victim was
raped, the complex crime of forcible abduction with rape would be committed. If the taking was
forcible abduction, and the woman was raped several times, there would only be one crime of
forcible abduction with rape, and each of the other rapes would constitute distinct counts of rape.
This was the ruling in the case of People v. Bacalso.

In People v. Lactao, decided on October 29, 1993, the Supreme Court stressed that the crime
is serious illegal detention if the purpose was to deprive the offended party of her liberty. And if in
the course of the illegal detention, the offended party was raped, a separate crime of rape would
be committed. This is so because there is no complex crime of serious illegal detention with rape
since the illegal detention was not a necessary means to the commission of rape.

In People v. Bernal, 131 SCRA 1, the appellants were held guilty of separate crimes of serious
illegal detention and of multiple rapes. With the amendment by Republic Act No. 7659 making
rape a qualifying circumstance in the crime of kidnapping and serious illegal detention, the
jurisprudence is superseded to the effect that the rape should be a distinct crime. Article 48 on
complex crimes may not apply when serious illegal detention and rape are committed by the
same offender. The offender will be charged for the composite crime of serious illegal detention
with rape as a single indivisible offense, regardless of the number of times that the victim was
raped.

Also, when the victim of the kidnapping and serious illegal detention was subjected to torture and
sustained physical injuries, a composite crime of kidnapping with physical injuries is committed.

Palattao notes:

When the person is deprived of his liberty or is seized and forcibly taken to
another place, the inquiry would, be what is the purpose of the offender in
taking him or her away:
195

If the seizure is only to facilitate the killing of the victim the crime committed
would either be homicide or murder and the crime of kidnapping is absorbed.

If the seizure or deprivation of liberty is only to compel the victim to perform

an act,

be it right or wrong, the crime committed would only be grave coercion.

(People vs.

Astorga, 283 SCRA 420).

If the deprivation of liberty is to take away the victim to satisfy the lewd
design of the offender, the crime would only be forcible abduction.

If the seizure of the victim is solely to deprive him of his liberty, the crime is
illegal detention.

In the penultimate paragraph of Article 267, there is deprivation of liberty but

not for any for the purposes enumerated above. It is for the purpose of
extorting ransom from the victim or from any other person. The law classifies
the crime committed by the offender as serious illegal detention even if none
of the circumstances to make it serious is present in the commission of the
crime. In this particular mode of committing the crime of serious illegal
detention, demand for ransom is an indispensable element.

(People vs. Bustamante, G. R. No. 66427, Dec. 4, 1991)

SANDOVAL Notes:

If the victim was not kidnapped or taken away but was restrained and deprived of his liberty, like
in the case of a hostage incident where the accused, who was one of the occupants of the house,
grabbed a child, poked a knife on the latters neck, called for media people and demanded a
vehicle from the authorities which he could use in escaping, as it turned out that there was an
unserved arrest warrant against him, the proper charge is Serious Illegal Detention (without
kidnapping anymore) but likewise under Article 267 of the Revised Penal Code.
Where after taking the victim with her car, the accused called the house of the victim asking for
ransom but upon going to their safehouse saw several police cars chasing them, prompting them
to kill their victim inside the car, there were two crime committed Kidnapping for Ransom and
Murder, not a complex crime of Kidnapping with Murder as she was not taken or carried away to
be killed, killing being an afterthought . (People vs. Evanoria, 209 SCRA 577).

Article 268

SLIGHT ILLEGAL DETENTION

ELEMENTS:

Offender is a private person

He kidnaps or detains another or in any other maner deprives him pof his liberty / furnished
place for the perpetuation of the crime

That the act of detention or kidnapping must be illegal

That the crime is committed without the attendant of any of the circumstances enumerated in
Art 267

Note: Privileged mitigating circumstances:

196

If the offender:

voluntarily releases the person so kidnapped or detained within 3 days from the
commencement of the detention

without having attained the purpose intended and

before the institution of criminal proceedings against him

Ortega Notes:

One should know the nature of the illegal detention to know whether the voluntary release of the
offended party will affect the criminal liability of the offender.

When the offender voluntarily releases the offended party from detention within three days from
the time the restraint of liberty began, as long as the offender has not accomplished his purposes,
and the release was made before the criminal prosecution was commenced, this would serve to
mitigate the criminal liability of the offender, provided that the kidnapping or illegal detention is not
serious.

If the illegal detention is serious, however, even if the offender voluntarily released the offended
party, and such release was within three days from the time the detention began, even if the
offender has not accomplished his purpose in detaining the offended party, and even if there is no
criminal prosecution yet, such voluntary release will not mitigate the criminal liability of the
offender.

One who furnishes the place where the offended party is being held generally acts as an
accomplice. But the criminal liability in connection with the kidnapping and serious illegal
detention, as well as the slight illegal detention, is that of the principal and not of the accomplice.

The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only
mitigate criminal liability if crime was slight illegal detention. If serious, it has no effect.

In kidnapping for ransom, voluntary release will not mitigate the crime. This is because, with the
reimposition of the death penalty, this crime is penalized with the extreme penalty of death.
What is ransom? It is the money, price or consideration paid or demanded for redemption of a
captured person or persons, a payment that releases a person from captivity.

The definition of ransom under the Lindberg law of the U.S. has been adopted in our
jurisprudence in People v. Akiran, 18 SCRA 239, 242, such that when a creditor detains a debtor
and releases the latter only upon the payment of the debt, such payment of the debt, which was
made a condition for the release is ransom, under this article.

In the case of People v. Roluna, decided March 29, 1994, witnesses saw a person being taken
away with hands tied behind his back and was not heard from for six years. Supreme Court
reversed the trial court ruling that the men accused were guilty of kidnapping with murder. The
crime is only slight illegal detention under Article 268, aggravated by a band, since none of the
circumstances in Article 267 has been proved beyond a reasonable doubt. The fact that the victim
has been missing for six years raises a presumption of death, but from this disputable
presumption of death, it should not be further presumed that the persons who were last seen with
the absentee is responsible for his disappearance.

Article 269

UNLAWFUL ARREST

ELEMENTS:
197

That the offender arrests or detains another person

That the purpose of the offender is to deliver him to the proper authorities

That the arrest or detention is not authorized by law or there is no reasonable ground therefor

Notes:

1. Offender is any person, so either a public officer or private individual

The offender in this article can be a private individual or public officer. In the
latter case, the offender, being a public officer, has the authority to arrest
and detain a person, but the arrest is made without legal grounds. For him to
be punished under this article, the public officer must make the arrest and
detention without authority to do so; or without acting in his official capacity.

This felony consists in making an arrest or detention without legal or reasonable ground for the
purpose of delivering the offended party to the proper authorities.

The offended party may also be detained but the crime is not illegal detention because the
purpose is to prosecute the person arrested. The detention is only incidental; the primary criminal
intention of the offender is to charge the offended party for a crime he did not actually commit.

Generally, this crime is committed by incriminating innocent persons by the offenders planting
evidence to justify the arrest a complex crime results, that is, unlawful arrest through
incriminatory machinations under Article 363.

2. Refers to warrantless arrests

If the arrest is made without a warrant and under circumstances not allowing a warrantless arrest,
the crime would be unlawful arrest.

If the person arrested is not delivered to the authorities, the private individual making the arrest
incurs criminal liability for illegal detention under Article 267 or 268.
If the offender is a public officer, the crime is arbitrary detention under Article 124.

If the detention or arrest is for a legal ground, but the public officer delays delivery of the person
arrested to the proper judicial authorities, then Article 125 will apply.

Note that this felony may also be committed by public officers.

In art 125, the detention is for some legal ground while here, the detention is not
authorized by law

In art 125, the crime pertains to failure to deliver the person to the proper judicial
authority within the prescribed period while here, the arrest is not authorized by law

Article 270

KIDNAPPING AND FAILURE TO RETURN A MINOR

ELEMENTS:

That the offender is entrusted with the custody of a minor person (whether over or under 7 but
less than 18 yrs old)
198

2. That he deliberately fails to restore the said minor to his parents

If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article
267.

If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 apply.

If the taking is with the consent of the parents, the crime in Article 270 is committed.

In People v. Generosa, it was held that deliberate failure to return a minor under ones custody
constitutes deprivation of liberty. Kidnapping and failure to return a minor is necessarily included
in kidnapping and serious illegal detention of a minor under Article 267(4).

In People v. Mendoza, where a minor child was taken by the accused without the knowledge and
consent of his parents, it was held that the crime is kidnapping and serious illegal detention under

Article 267, not kidnapping and failure to return a minor under Article 270.

Article 271

INDUCING A MINOR TO ABANDON HIS HOME

ELEMENTS:

That the minor (whether over or under 7) is living in the home of his parents or guardians or
the person entrusted with his custody

That the offender induces a minor to abandon such home

Notes:
The inducement must be actually done with malice and a determined will to
cause damage. (People vs. Paalam, C.A., O.G. 8267-8268). But where the victims
abandoned their respective homes out of an irresponsible spirit of
restlessness and adventure, the crime is not committed.

Minor should not leave his home of his own free will

Mitigating if by father or mother

The article also punishes the father or mother who commits the act penalized
under the law. This arises when the custody of the minor is awarded by the
court to one of them after they have separated. The other parent who
induces the minor to abandon his home is covered by this article.

Article 272

SLAVERY

ELEMENTS:

That the offender purchases. Sells, kidnaps or detains a human being.

That the purpose of the offender is to enslave such human being.

199

Slavery is the treatment of a human being as a mere property, stripped of

dignity and human rights. The person is reduced to the level of an ordinary
animal, a mere chattel with material value capable of pecuniary estimation
and for which reason, the offender purchases and sells the same.

Note: Qualifying circumstance if the purpose of the offender is to assign the

offended party to some immoral traffic (prostitution), the penalty is higher

This is distinguished from illegal detention by the purpose. If the purpose of the kidnapping or
detention is to enslave the offended party, slavery is committed.

The crime is slavery if the offender is not engaged in the business of prostitution. If he is, the
crime is white slave trade under Article 341.

Article 273

EXPLOITION OF CHILD LABOR

ELEMENTS:

That the offender retains a minor in his service.

That it is against the will of the minor.

That it is under the pretext of reimbursing himself of a debt incurred by an ascendant,

guardian or person entrusted with the custody of such minor.

If the minor agrees to serve the accused, no crime is committed, even if the
service is rendered to pay an ascendants alleged debt.
Article 274

SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT

ELEMENTS:

That the offender compels a debtor to work for him, either as household servant or farm
laborer.

That it is against the debtors will.

That the purpose is to require or enforce the payment of a debt.

Involuntary servitude or service. In this article, no distinction is made

whether the offended is a minor or an adult.

CRIMES AGAINST SECURITY

Article 275

ABANDONMENT OF PERSON IN DANGER AND ABANDONMENT OF ONES

OWN VICTIM
200

Acts punishable:

By failing to render assistance to any person whom the offender finds in an

inhabited place wounded or in danger of dying, when he can render such
assistance without detriment to himself, unless such omission shall constitute a
more serious offense

Elements

That place is not inhabited.

The accused found there a person wounded or in danger of dying.

The accused can render assistance without detriment to himself.

The accused fails to render assistance.

By failing to help or render assistance to another whom the offender has

accidentally wounded or injured

By failing to deliver a child, under 7 whom the offender has found abandoned, to
the authorities or to his family, or by failing to take him to a safe place

Under the first act, the offender is liable only when he can render such assistance without
detriment to himself, unless such omission shall constitute a more serious offense. Where the
person is already wounded and already in danger of dying, there is an obligation to render
assistance only if he is found in an uninhabited place. If the mortally wounded, dying person is
found in a place not uninhabited in legal contemplation, abandonment will not bring about this
crime. An uninhabited place is determined by possibility of person receiving assistance from
another. Even if there are many houses around, the place may still be uninhabited if possibility of
receiving assistance is remote.

If what happened was an accident at first, there would be no liability pursuant to Article 12 (4) of
the RPC damnum absque injuria. But if you abandon your victim, you will be liable under Article
275. Here, the character of the place is immaterial. As long as the victim was injured because of
the accident caused by the offender, the offender would be liable for abandonment if he would not
render assistance to the victim.
Article 276

ABANDONING A MINOR

ELEMENTS:

That the offender has the custody of a child.

That the child is under seven years of age.

That he abandons such child.

That he has no intent to kill the child when the latter is abandoned.

Notes:

1. Conscious, deliberate, permanent

In order to hold one criminally liable under this article, the offender must
have abandoned the child with deliberate intent. The purpose of the offender
must solely be avoidance of the obligation of taking care of the minor.
201

Qualifying circumstances:

When the death of the minor resulted from such abandonment

If the life of the minor was in danger because of the abandonment

Article 277

ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH HIS CUSTODY;

INDIFFERENCE OF PARENTS

Acts punished:

By delivering a minor to a public institution or other persons w/o consent of the

one who entrusted such minor to the care of the offender or, in the absence of
that one, without the consent of the proper authorities

Elements:

That the offender has charged of the rearing or education of a minor.

That he delivers said minor to a public institution or other persons.

That the one who entrusted such child to the offender has not consented to such act, or if the
one who entrusted such child to the offender is absent; the proper authorities have not
consented to it.

By neglecting his (offenders) children by not giving them education which their
station in life requires and financial condition permits

Elements:
That the offender is a parent.

That he neglects his children by not giving them education.

That his station in life requires such education and his financial condition permits it.

Indifference of parents while they are financially capable of supporting

the needs of their children, they deliberately neglect to support the
educational requirements of these children through plain irresponsibility
caused by wrong social values.

Article 278

EXPLOITATION OF MINORS

Acts punished:

By causing any boy or girl under 16 to perform any dangerous feat of balancing, physical
strength or contortion, the offender being any person

By employing children under 16 who are not the children or descendants of the offender in
exhibitions of acrobat, gymnast, rope-walker, diver, or wild-animal tamer or circus manager or
engaged in a similar calling
202

By employing any descendant under 12 in dangerous exhibitions enumerated in the next

preceding paragraph, the offender being engaged in any of said callings

By delivering a child under 16 gratuitously to any person following any of the callings
enumerated in par 2 or to any habitual vagrant or beggar, the offender being an ascendant,
guardian, teacher or person entrusted in any capacity with the care of such child

By inducing any child under 16 to abandon the home of its ascendants; guardians, curators or
teachers to follow any person engaged in any of the callings mentioned in par 2 or to
accompany any habitual vagrant or beggar, the offender being any person

Note: Qualifying Circumstance if the delivery of the child to any person following any
of the callings of acrobat, rope-walker, diver or wild-animal trainer or circus manager or
to any habitual vagrant of beggar is made in consideration of any price, compensation or
promise, the penalty is higher.

The offender is engaged in a kind of business that would place the life or limb of the minor in
danger, even though working for him is not against the will of the minor.

Nature of the Business This involves circuses which generally attract children so they
themselves may enjoy working there unaware of the danger to their own lives and limbs.

Age Must be below 16 years. At this age, the minor is still growing.

If the employer is an ascendant, the crime is not committed, unless the minor is less than 12
years old. Because if the employer is an ascendant, the law regards that he would look after the
welfare and protection of the child; hence, the age is lowered to 12 years. Below that age, the
crime is committed.

But remember Republic Act No. 7610 (Special Protection of Children against Child Abuse,
Exploitation and Discrimination Act). It applies to minors below 18 years old, not 16 years old as
in the Revised Penal Code. As long as the employment is inimical even though there is no
physical risk and detrimental to the childs interest against moral, intellectual, physical, and
mental development of the minor the establishment will be closed.

Article 278 has no application if minor is 16 years old and above. But the exploitation will be dealt
with by Republic Act No. 7610.

If the minor so employed would suffer some injuries as a result of a violation of Article 278, Article
279 provides that there would be additional criminal liability for the resulting felony.

ADDITIONAL PENALTIES FOR OTHER OFFENSES: (279)

Article 280

QUALIFIED TRESPASS TO DWELLING

ELEMENTS:

That the offender is a private person.

That he enters the dwelling of another.

That such entrance is against the latters will.

203

Notes:

Dwelling This is the place that a person inhabits. It includes the dependencies which have
interior communication with the house. It is not necessary that it be the permanent dwelling of the
person. So, a persons room in a hotel may be considered a dwelling. It also includes a room
where one resides as a boarder.

Qualifying circumstance: if the offense is committed by means of violence or

intimidation, the penalty is higher

There must be an opposition to the entry of the accused

If the entry is made by a way not intended for entry, that is presumed to be against the will of the
occupant (example, entry through a window). It is not necessary that there be a breaking.

Lack of permission to enter a dwelling does not amount to prohibition. So,

one who enters a building is not presumed to be trespasser until the owner
tells him to leave the building. In such a case, if he refuses to leave, then his
entry shall now be considered to have been made without the express
consent of the owner. (People vs. De Peralta, 42

Phil. 69)

Even if the door is not locked, for as long as it is closed, the prohibition is
presumed especially if the entry was done at the late hour of the night or at
an unholy hour of the day. (U. S. vs. Mesina, 21 Phil. 615)

Implied prohibition is present considering the situation late at night and everyones
asleep or entrance was made through the window

Against the will -- This means that the entrance is, either expressly or impliedly, prohibited or
the prohibition is presumed. Fraudulent entrance may constitute trespass. The prohibition to enter
may be made at any time and not necessarily at the time of the entrance.

To prove that an entry is against the will of the occupant, it is not necessary that the entry should
be preceded by an express prohibition, provided that the opposition of the occupant is clearly
established by the circumstances under which the entry is made, such as the existence of enmity
or strained relations between the accused and the occupant.

Prohibition is not necessary when violence or intimidation is employed by the offender

On violence, Cuello Calon opines that violence may be committed not only against persons but
also against things. So, breaking the door or glass of a window or door constitutes acts of
violence. Our Supreme Court followed this view in People v. Tayag. Violence or intimidation
must, however, be anterior or coetaneous with the entrance and must not be posterior. But if the
violence is employed immediately after the entrance without the consent of the owner of the
house, trespass is committed. If there is also violence or intimidation, proof of prohibition to enter
is no longer necessary.

5. When there is no overt act of the crime intended to be committed, this is the crime

If the purpose in entering the dwelling is not shown, trespass is committed. If the purpose is
shown, it may be absorbed in the crime as in robbery with force upon things, the trespass yielding
to the more serious crime. But if the purpose is not shown and while inside the dwelling he was
found by the occupants, one of whom was injured by him, the crime committed will be trespass to
dwelling and frustrated homicide, physical injuries, or if there was no injury, unjust vexation.
204

6. May be committed even by the owner (as against the actual occupant)

Even if the house belonged to the accused, if the possession has been
delivered to another by reason of contract or by a mere tolerance, his being
the owner would not authorize him to enter the house against the will of the
lawful occupant. His ownership is no authority for him to place the law in his
hands. (People vs. Almeda, 75 Phil. 476)

Distinction between qualified trespass to dwelling and violation of domicile

Unlike qualified trespass to dwelling, violation of domicile may be committed only by a public
officer or employee and the violation may consist of any of the three acts mentioned in Article 128

(1) entering the dwelling against the will of the owner without judicial order; (2) searching
papers or other effects found in such dwelling without the previous consent of the owner thereof;
and (3) refusing to leave the dwelling when so requested by the owner thereof, after having
surreptitiously entered such dwelling.

Not applicable to:

entrance is for the purpose of preventing harm to himself, the occupants or a third
person

purpose is to render some service to humanity or justice

place is a caf, tavern etc while open

Pursuant to Section 6, Rule 113 of the Rules of Court, a person who believes that a crime has
been committed against him has every right to go after the culprit and arrest him without any
warrant even if in the process he enters the house of another against the latters will.

8. Medina case: when the accused entered the dwelling through the window, he had no
intent to kill any person inside, but the intention to kill came to his mind when he was
being arrested by the occupants thereof, the crime of trespass to dwelling is a separate
and distinct offense from frustrated homicide
Article 281

OTHER FORMS OF TRESPASS

ELEMENTS:

That the offender enters the closed premises or the fenced estate of another.

That the entrance is made while either of them is uninhabited.

That the prohibition to enter be manifest.

That the trespasser has not secured the permission of the owner or the caretaker thereof.

THREATS and COERCIONS

Article 282

GRAVE THREATS

Acts punishable:
205

By threatening another with the infliction upon his person, honor or property that
of his family of any wrong amounting to a crime and demanding money or
imposing any other condition, even though not unlawful and the offender (Note:
threat is with condition)

Elements

That the offender threatens another person with the infliction upon the latters person, honor
or property, or upon that of the latters family, of any wrong.

That such wrong amounts to a crime.

That there is a demand for money or that any other condition is imposed, even though not
unlawful.

That the offender attains his purpose.

By making such threat without the offender attaining his purpose

By threatening another with the infliction upon his person, honor or property or
that of his family of any wrong amounting to a crime, the threat not being subject
to a condition (Note: threat is without condition)

Elements

That the offender threatens another person with the infliction upon the latters person, honor
or property, or upon that of the latters family, of any wrong.

That such wrong amounts to a crime.

That the threat is not subject to a condition

Notes:
Intimidation is an indispensable element in the crime of threat. The very
essence of threat is to sow fear, anxiety and insecurity in the mind of the
offended party. It is done by threatening to commit the crime upon the
person, honor and property of the offended party. There is a promise of some
future harm or injury.

Aggravating circumstances: if made in writing or thru a middleman

Frustrated if not received by the person being threatened

Art 284 bond for good behavior may be imposed (only in these offenses)

Ortega Notes:

Threat is a declaration of an intention or determination to injure another by the commission upon

his person, honor or property or upon that of his family of some wrong which may or may not
amount to a crime:

Grave threats when the wrong threatened to be inflicted amounts to a crime. The case falls
under Article 282.

Light threats if it does not amount to a crime. The case falls under Article 283.
206

But even if the harm intended is in the nature of a crime, if made orally and in the heat of anger
and after the oral threat, the issuer of the threat did not pursue the act, the crime is only other
light threats under Article 285.

To constitute grave threats, the threats must refer to a future wrong and is committed by acts or
through words of such efficiency to inspire terror or fear upon another. It is, therefore,
characterized by moral pressure that produces disquietude or alarm.

The greater perversity of the offender is manifested when the threats are made demanding
money or imposing any condition, whether lawful or not, and the offender shall have attained his
purpose. So the law imposes upon him the penalty next lower in degree than that prescribed for
the crime threatened to be committed. But if the purpose is not attained, the penalty lower by two
degrees is imposed. The maximum period of the penalty is imposed if the threats are made in
writing or through a middleman as they manifest evident premeditation.

Distinction between threat and coercion:

The essence of coercion is violence or intimidation. There is no condition involved; hence, there
is no futurity in the harm or wrong done.

In threat, the wrong or harm done is future and conditional. In coercion, it is direct and personal.

Distinction between threat and robbery:

As to intimidation In robbery, the intimidation is actual and immediate; in threat, the intimidation
is future and conditional.

As to nature of intimidation In robbery, the intimidation is personal; in threats, it may be through

an intermediary.

As to subject matter Robbery refers to personal property; threat may refer to the person, honor
or property.

As to intent to gain In robbery, there is intent to gain; in threats, intent to gain is not an essential
element.

In robbery, the robber makes the danger involved in his threats directly imminent to the victim and
the obtainment of his gain immediate, thereby also taking rights to his person by the opposition or
resistance which the victim might offer; in threat, the danger to the victim is not instantly imminent
nor the gain of the culprit immediate.

Article 283

LIGHT THREATS

ELEMENTS:

That the offender makes a threat to commit a wrong.

That the wrong does not constitute a crime.

That there is a demand for money or that other condition is imposed, even though not
unlawful

That the offender has attained his purpose or, that he has not attained his purpose

In order to convict a person of the crime of light threats, the harm threatened must not be in the
nature of crime and there is a demand for money or any other condition is imposed, even though
lawful.
207

Question & Answer

Blackmailing constitutes what crime?

It is a crime of light threat under Article 283 if there is no threat to publish any libelous or
slanderous matter against the offended party. If there is such a threat to make a slanderous or
libelous publication against the offended party, the crime will be one of libel, which is penalized
under Article 356. For example, a person threatens to expose the affairs of married man if the
latter does not give him money. There is intimidation done under a demand.

Article 284

BOND FOR GOOD BEHAVIOR

The law imposes the penalty of bond for good behavior only in case of grave and light threats. If
the offender can not post the bond, he will be banished by way of destierro to prevent him from
carrying out his threat.

Bond of good behavior means the posting of bond on the part of the accused
in order to guarantee that he will not molest the offended party. It is in the
nature of an additional penalty.

Bond to keep peace under Article 35 is applicable to all cases and is treated
as a distinct penalty. If the sentenced prisoner fails to give the bond, he shall
be detained for a period not exceeding six months if the crime for which he
was convicted is classified as grave felony or for a period not exceeding thirty
days if convicted for a light felony.

Article 285
OTHER LIGHT THREATS

ELEMENTS:

Person shall threaten another with a weapon, or draw weapon in a quarrel unless in self-
defense.

In the heat of anger, person orally threatens another with some harm constituting a crime,
without persisting in the idea involved in the threat. Subsequent acts did not persist.

Person orally threatens another with harm not constituting a felony.

In the crime of light threats, there is no demand for money and the threat
made is not planned or done with deliberate intent. So threats which would
otherwise qualify as grave threats, when made in the heat of anger or which
is a product of a spur of the moment are generally considered as light
threats.

Whether it is grave or light threats, the crime is committed even in the

absence of the person to whom the threat is directed.

Article 286

GRAVE COERCIONS

ELEMENTS:
208

That a person prevented another from doing something OR not to do something against his
will, be it right or wrong;

That the prevention or compulsion be effected by violence, of force as would produce

intimidation and control the will.

That the person that restrained the will and liberty by another had not the authority of law or
the right to do so, or, in other words, that the restraint shall not be made under authority of law
or in the exercise of any lawful right.

Acts punished

Preventing another, by means of violence, threats or intimidation, from doing something not
prohibited by law;

Compelling another, by means of violence, threats or intimidation, to do something against his

will, whether it be right or wrong.

In grave coercion, the act of preventing by force must be made at the time
the offended party was doing or was about to do the act to be prevented.

Grave coercion arises only if the act which the offender prevented another to do is not prohibited
by law or ordinance. If the act prohibited was illegal, he is not liable for grave coercion.

If a person prohibits another to do an act because the act is a crime, even though some sort of
violence or intimidation is employed, it would not give rise to grave coercion. It may only give rise
to threat or physical injuries, if some injuries are inflicted. However, in case of grave coercion
where the offended party is being compelled to do something against his will, whether it be wrong
or not, the crime of grave coercion is committed if violence or intimidation is employed in order to
compel him to do the act. No person shall take the law into his own hands.

Illustration:

Compelling the debtor to deliver some of his properties to pay a creditor will amount to coercion
although the creditor may have a right to collect payment from the debtor, even if the obligation is
long over due.
The violence employed in grave coercion must be immediate, actual, or imminent. In the absence
of actual or imminent force or violence, coercion is not committed. The essence of coercion is an
attack on individual liberty.

The physical violence is exerted to (1) prevent a person from doing something he wants to do; or

(2) compel him to do something he does not want to do.

Illustration:

If a man compels another to show the contents of the latters pockets, and takes the wallet, this is
robbery and not grave coercion. The intimidation is a means of committing robbery with violence
or intimidation of persons. Violence is inherent in the crime of robbery with violence or intimidation
upon persons and in usurpation of real properties because it is the means of committing the
crime.

Exception to the rule that physical violence must be exerted: where intimidation is so serious that
it is not a threat anymore it approximates violence.

In Lee v. CA, 201 SCAR 405, it was held that neither the crime of threats nor coercion is
committed although the accused, a branch manager of a bank made the complainant sign a
withdrawal slip for the amount needed to pay the spurious dollar check she had encashed, and
209

also made her execute an affidavit regarding the return of the amount against her better sense
and judgment. According to the court, the complainant may have acted reluctantly and with
hesitation, but still, it was voluntary. It is different when a complainant refuses absolutely to act
such an extent that she becomes a mere automaton and acts mechanically only, not of her own
will. In this situation, the complainant ceases to exits as an independent personality and the
person who employs force or intimidation is, in the eyes of the law, the one acting; while the hand
of the complainant sign, the will that moves it is the hand of the offender.

Article 287

LIGHT COERCIONS

ELEMENTS:

That the offender must be a creditor.

That he seizes anything belonging to his debtor.

That the seizure of the thing be accomplished by means of violence or a display of material
force producing intimidation;

That the purpose of the offender is to apply the same to the payment of the debt.

UNJUST VEXATION

In unjust vexation, any act committed without violence, but which unjustifiably annoys or vexes an
innocent person amounts to light coercion.

As a punishable act, unjust vexation should include any human conduct which, although not
productive of some physical or material harm would, however, unjustifiably annoy or vex an
innocent person.
It is distinguished from grave coercion under the first paragraph by the absence of violence.

Illustration:

Persons stoning someone elses house. So long as stoning is not serious and it is intended to
annoy, it is unjust vexation. It disturbs the peace of mind.

The main purpose of the statute penalizing coercion and unjust vexation is precisely to enforce
the principle that no person may take the law into his hands and that our government is one of
laws, not of men. The essence of the crimes is the attack on individual liberty.

Article 288

OTHER SIMILAR COERCIONS

ELEMENTS OF NO. 1

Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or

compelling of the laborer or employee of the offender to purchase merchandise of
commodities of any kind from him;

That the offender is any person, agent or officer of any association or corporation.

That he or such firm or corporation has employed laborers or employees.

210

3. That he forces or compels, directly or indirectly, or knowingly permits to be forced or

compelled, any of his or its laborers or employees to purchase merchandise or commodities of
any kind from his or from said firm or corporation.

ELEMENTS OF NO. 2

Paying the wages due his laborer or employee by means of tokens or object other than
the legal tender currency of the Philippines, unless expressly requested by such laborer
or employee.

That the offender pays the wages due a laborer or employee employed by him by means of
tokens or objects.

That those tokens or objects are other than the legal tender currency to the Philippines.

That such employee or laborer does not expressly request that he be paid by means of tokens or
objects.

Under the Republic Act No. 602, known as the Minimum Wage Law,
wages of laborers must be paid in legal tender. Accordingly, it is unlawful to
pay the wages of the laborers in the form of promissory notes, vouchers,
coupons, tokens, or any other forms alleged to represent legal tender.

Article 289

FORMATION, MAINTENANCE, AND PROHIBITION OF COMBINATION OF

CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS

ELEMENTS:
That the offender employs violence or threats, in such a degree as to compel or force the
laborers or employers in the free and legal exercise of their industry or work

That the purpose is to organize, maintain or prevent coalitions of capital or labor, strike of
laborers or lockout of employees.

Peaceful picketing is part of the freedom of speech and is not covered by this
article.

Preventing employees or laborers from joining any registered labor

organization is punished under Art. 248 of the Labor Code.

DISCOVERY AND REVELATION OF SECRETS

Article 290

DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE

ELEMENTS:

That the offender is a private individual or even a public officer not in the exercise of his
official function,

That he seizes the papers or letters of another.

That the purpose is to discover the secrets of such another person.

That offender is informed of the contents or the papers or letters seized.

Notes:
211

This is a crime against the security of ones papers and effects. The purpose must be to discover
its effects. The act violates the privacy of communication.

1. Not applicable to parents with respect to minor children

The last paragraph of Article 290 expressly makes the provision of the first and second paragraph
thereof inapplicable to parents, guardians, or persons entrusted with the custody of minors placed
under their care or custody, and to the spouses with respect to the papers or letters of either of
them. The teachers or other persons entrusted with the care and education of minors are
included in the exceptions.

In a case decided by the Supreme Court, a spouse who rummaged and found love letters of
husband to mistress does not commit this crime, but the letters are inadmissible in evidence
because of unreasonable search and seizure. The ruling held that the wife should have applied
for a search warrant.

2. Contents need not be secret but purpose prevails

According to Ortega, it is not necessary that the offender should actually discover the contents of
the letter. Reyes, citing People v. Singh, CA, 40 OG, Suppl. 5, 35, believes otherwise.

Circumstances qualifying the offense: when the offender reveals contents of such
papers or letters of another to a 3rd person, the penalty is higher

Distinction from estafa, damage to property, and unjust vexation:

If the act had been executed with intent of gain, it would be estafa;

If, on the other hand, the purpose was not to defraud, but only to cause damage to anothers, it
would merit the qualification of damage to property;

If the intention was merely to cause vexation preventing another to do something which the law
does not prohibit or compel him to execute what he does not want, the act should be considered
as unjust vexation.
Article 291

REVEALING SECRETS WITH ABUSE OF OFFICE

ELEMENTS:

That the offender is a manager, employee or servant.

That he learns the secrets of his principal or master in such capacity.

That he reveals such secrets.

An employee, manager, or servant who came to know of the secret of his master or principal in
such capacity and reveals the same shall also be liable regardless of whether or not the principal
or master suffered damages.

The essence of this crime is that the offender learned of the secret in the course of his
employment. He is enjoying a confidential relation with the employer or master so he should
respect the privacy of matters personal to the latter.

If the matter pertains to the business of the employer or master, damage is necessary and the
agent, employee or servant shall always be liable. Reason: no one has a right to the personal
privacy of another.
212

Article 292

REVELATION OF INDUSTRIAL SECRETS

ELEMENTS:

That the offender is a person in charge, employee or workman of a manufacturing or

industrial establishment.

That the manufacturing or industrial establishment has a secret of the industry which the
offender has learned.

That the offender reveals such secrets.

That the prejudice is caused to the owner.

A business secret must not be known to other business entities or persons. It is a matter to be
discovered, known and used by and must belong to one person or entity exclusively. One who
merely copies their machines from those already existing and functioning cannot claim to have a
business secret, much less, a discovery within the contemplation of Article 292.

TITLE TEN

CRIMES AGAINST PROPERTY

Crimes against property

Robbery with violence against or intimidation of persons (Art. 294);

Attempted and frustrated robbery committed under certain circumstances (Art. 297);

Execution of deeds by means of violence or intimidation (Art. 298);

Robbery in an inhabited house or public building or edifice devoted to worship (Art. 299);

Robbery in an inhabited place or in a private building (Art. 302);

Possession of picklocks or similar tools (Art. 304);

Brigandage (Art. 306);

Aiding and abetting a band of brigands (Art. 307);

Theft (Art. 308);

Qualified theft (Art. 310);

Theft of the property of the National Library and National Museum (Art. 311);

Occupation of real property or usurpation of real rights in property (Art. 312);

Altering boundaries or landmarks (Art. 313);

Fraudulent insolvency (Art. 314);

Swindling (Art. 315);

213

Other forms of swindling (Art. 316);

Swindling a minor (Art. 317);

Other deceits (Art. 318);

Removal, sale or pledge of mortgaged property (Art. 319);

Destructive arson (Art. 320);

Other forms of arson (Art. 321);

Arson of property of small value (Art. 323);

Crimes involving destruction (Art. 324);

Burning ones own property as means to commit arson (Art. 325);

Setting fire to property exclusively owned by the offender (Art. 326);

Malicious mischief (Art. 327);

Special case of malicious mischief (Art. 328);

Damage and obstruction to means of communication (Art. 330);

Destroying or damaging statues, public monuments or paintings (Art. 331).

Article 293

ROBBERY IN GENERAL

ELEMENTS:

That there be personal property belonging to another.

That there is unlawful taking of that property.

That the taking must be with intent to gain, and

That there is violence against or intimidation of any person, or force upon anything.

Notes:

Robbery This is the taking or personal property belonging to another, with intent to gain, by
means of violence against, or intimidation of any person, or using force upon anything.

Two kinds of robbery: 1) robbery with violence or intimidation and 2)

robbery with force upon things.

Belonging to another person from whom property was taken need not be the owner,
legal possession is sufficient
214

The property must be personal property and cannot refer to real property.

Name of the real owner is not essential so long as the personal property taken does not
belong to the accused except if crime is robbery with homicide

The owner of the property may be held liable for robbery where he forcible
takes the property from the possession of the bailee with intent to charge the
latter with its value.

(U. S. vs. Albao, 29 Phil. 86)

In the absence of any explanation as to how one has come into possession of
stolen effects belonging to a person wounded and treacherously killed, the
possessor must necessarily be considered the author of the aggression and
death of the victim as well as of the robbery committed. (People vs. Rapuela. G.
R. NO. 85178, March 15, 1990)

Suppose the property is res nullus or without an owner?

The crime of robbery or theft cannot be committed if the property is without

an owner for the simple reason that no one can be prejudiced by the taking of
the personal property, even though the intent to gain is present in the taking.

3. Taking of personal property must be unlawful; if given in trust estafa

The taking of the property must be coupled with the intention to permanently
deprive the offended party of his possession of the things taken. (People vs. Kho
Choc, C. A., 50 O.

1667)

As to robbery with violence or intimidation from the moment the offender gains
possession of the thing even if offender has had no opportunity to dispose of the same,
the unlawful taking is complete
As to robbery with force upon things thing must be taken out of the building

Intent to gain presumed from unlawful taking

Intent to gain may be presumed from the unlawful taking of anothers

property.

However, when one takes a property under the claim of ownership or title, the
taking is not considered to be with intent to gain. (U. S. vs. Manluco, et al., 28 Phil.
360)

When theres no intent to gain but there is violence in the taking grave coercion

Violence or intimidation must be against the person of the offended party, not upon the
thing

General rule: violence or intimidation must be present before the taking is complete

Except: when violence results in homicide, rape, intentional mutilation or any of the
serious physical injuries in par 1 and 2 of art 263, the taking of the property is robbery
complexed with any of these crimes under art 294, even if taking is already complete
when violence was used by the offender

Use of force upon things entrance to the building by means described in arts 299
and 302 (offender must enter)
215

The other kind of robbery is one that is committed with the use of force upon
anything in order to take with intent to gain, the personal property of another.
The use of force here must refer to the force employed upon things in order to
gain entrance into a building or a house. (People vs. Adorno, C. A. 40 O. G. 567)

When both violence or intimidation and force upon things concur it is robbery with
violence

Robbery and Theft, compared.

Both robbery and theft involve unlawful taking or asportation as an element;

Both involve personal property belonging to another;

In both crimes, the taking is done with intent to gain;

In robbery, the taking is done either with the use of violence or intimidation of
person or the employment of force upon things; whereas in theft, the taking is
done simply without the knowledge and consent of the owner.

Robbery with

Grave threats

Grave coercion

violence

Intent to gain

No intent to gain

None
Immediate harm

Intimidation;

Intimidation (effect) is immediate and

promises some future

offended party is compelled to do

harm or injury

something against his will (w/n right or

wrong)

Robbery

Bribery

X didnt commit crime but is intimidated to

X has committed a crime and gives

deprive him of his property

money as way to avoid arrest or

prosecution

Deprived of money thru force or intimidation

Giving of money is in one sense

voluntary

Neither

Transaction is voluntary and mutual

Ex. defendant demands payment of P2.00 with

threats of arrest and prosecution, therefore,

robbery because (a) intent to gain and (b)

immediate harm

ANTI CARNAPPING ACT ( RA # 6539 )

Carnapping is the taking, with intent to gain, of a motor vehicle belonging

to another without the latters consent, or by means of violence against or
intimidation of persons, or by using force upon things.

Any vehicle which is motorized using the streets which are public, not
exclusively for private use is covered within the concept of motor vehicle under
the Anti-Carnapping Law. A tricycle which is not included in the enumeration of
exempted vehicles under the Carnapping Law is deemed to be motor vehicle as
defined in the law, the stealing of which comes within its penal sanction.
216

If the vehicle uses the streets with or without the required license, the same
comes within the protection of the law, for the severity of the offense is not to
be measured by what kind of street or highway the same is used but by the
nature of the vehicle itself and the case to which it is devoted. (Izon, et al., vs.
People, 107 SCRA 118)

Article 294

ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSON

Acts punished as robbery with violence against or intimidation of persons

By reason or on occasion of the robbery, the following are committed:

homicide

robbery accompanied with rape or intentional mutilation, SPI insane, imbecile, impotent or
blind

SPI lost the use of speech, hear, smell, eye, hand, foot, arm, leg, use of any such member,
incapacitated for work habitually engaged in

Violence/intimidation shall have been carried to a degree clearly unnecessary for the crime or
when in the cause of its execution SPI/deformity, or shall have lost any part of the body or
the use thereof or shall have been ill or incapacitated for the performance of the work for > 90
days; > 30 days

Any kind of robbery with less serious physical injuries or slight physical injuries

Notes:
special complex crimes (specific penalties prescribed) robbery with homicide

if original design is robbery and homicide is committed robbery with homicide even
though homicide precedes the robbery by an appreciable time.

If original design is not robbery but robbery was committed after homicide as an
afterthought 2 separate offenses.

Still robbery with homicide if the person killed was an innocent bystander and not the
person robbed and if death supervened by mere accident.

The original criminal design of the culprit must be Robbery and the Homicide is perpetrated with
a view to the consummation of the Robbery.

If death results or even accompanies a robbery, the crime will be robbery with homicide provided
that the robbery is consummated.

As long as the criminal objective or plan is to rob, whether the killing committed by reason or on
occasion thereof is intentional or accidental, the crime is Robbery with Homicide. ( Pp vs.
Pecato, 151 scra 14 ) As long as there was killing when Robbery was taking place, Robbery with
Homicide was committed, the killing occurring on the occasion thereof.
217

Problem:

A, B, C and D robbed a bank. When they were about to flee, policemen came, and they traded
shots with them. If one of the policemen was killed, the offense is Robbery with Homicide. If one
of the robbers was the one killed, the remaining robbers shall be charged also with Robbery with
Homicide. If a bank employee was the one killed either by the robbers or by the policemen in the
course of the latters action of arresting or trying to arrest the robbers, the crime is still Robbery
with Homicide.

As long as the criminal intent is to rob, that is, robbery was the real motive, the offense would
still be classified as Robbery with Homicide even if the killing preceded or was done ahead of the
robbing. (People vs. Tolentino, 165 SCRA 490).

Thus, as a member of the agaw-armas gang whose plan and design is to rob a policeman of his
service revolver, but because he fears that said policeman may beat him to the draw, first shoots
the policeman fatally and only after when the latter lies dead, does he get the gun the crime is
still considered Robbery with Homicide.

This is a crime against property, and therefore, you contend not with the killing but with the
robbery.

As long as there is only one (1) robbery, regardless of the persons killed, the crime will only be
one (1) count of robbery with homicide. The fact that there are multiple killings committed in the
course of the robbery will be considered only as aggravating so as to call for the imposition of the
maximum penalty prescribed by law.

If, on the occasion or by reason of the robbery, somebody is killed, and there are also physical
injuries inflicted by reason or on the occasion of the robbery, dont think that those who sustained
physical injuries may separately prosecute the offender for physical injuries. Those physical
injuries are only considered aggravating circumstances in the crime of robbery with homicide.

This is not a complex crime as understood under Article 48, but a single indivisible crime. This is
a special complex crime because the specific penalty is provided in the law.

The term homicide is used in the generic sense, and the complex crime therein contemplated
comprehends not only robbery with homicide in its restricted sense, but also with robbery with
murder. So, any kind of killing by reason of or on the occasion of a robbery will bring about the
crime of robbery with homicide even if the person killed is less than three days old, or even if the
person killed is the mother or father of the killer, or even if on such robbery the person killed was
done by treachery or any of the qualifying circumstances. In short, there is no crime of robbery
with parricide, robbery with murder, robbery with infanticide any and all forms of killing is
referred to as homicide.

Illustration:

The robbers enter the house. In entering through the window, one of the robbers stepped on a
child less than three days old. The crime is not robbery with infanticide because there is no such
crime. The word homicide as used in defining robbery with homicide is used in the generic sense.
It refers to any kind of death.

Although it is a crime against property and treachery is an aggravating circumstance that applies
only to crimes against persons, if the killing in a robbery is committed with treachery, the
treachery will be considered a generic aggravating circumstance because of the homicide.
218

When two or more persons are killed during the robbery, such should be appreciated as an
aggravating circumstance.

As long as there is only one robbery, regardless of the persons killed, you only have one crime of
robbery with homicide. Note, however, that one robbery does not mean there is only one taking.

Illustration:

Robbers decided to commit robbery in a house, which turned out to be a boarding house. Thus,
there were different boarders who were offended parties in the robbery. There is only one count
of robbery. If there were killings done to different boarders during the robbery being committed in
a boarders quarter, do not consider that as separate counts of robbery with homicide because
when robbers decide to commit robbery in a certain house, they are only impelled by one criminal
intent to rob and there will only be one case of robbery. If there were homicide or death
committed, that would only be part of a single robbery. That there were several killings done
would only aggravate the commission of the crime of robbery with homicide.

In People v. Quiones, 183 SCRA 747, it was held that there is no crime of robbery with multiple
homicides. The charge should be for robbery with homicide only because the number of persons
killed is immaterial and does not increase the penalty prescribed in Article 294. All the killings are
merged in the composite integrated whole that is robbery with homicide so long as the killings
were by reason or on occasion of the robbery.

In another case, a band of robbers entered a compound, which is actually a sugar mill. Within the
compound, there were quarters of the laborers. They robbed each of the quarters. The Supreme

Court held that there was only one count of robbery because when they decided and determined
to rob the compound, they were only impelled by one criminal intent to rob.

With more reason, therefore, if in a robbery, the offender took away property belonging to different
owners, as long as the taking was done at one time, and in one place, impelled by the same
criminal intent to gain, there would only be one count of robbery.

In robbery with homicide as a single indivisible offense, it is immaterial who gets killed. Even
though the killing may have resulted from negligence, you will still designate the crime as robbery
with homicide.

Illustration:
On the occasion of a robbery, one of the offenders placed his firearm on the table. While they
were ransacking the place, one of the robbers bumped the table. As a result, the firearm fell on
the floor and discharged. One of the robbers was the one killed. Even though the placing of the
firearm on the table where there is no safety precaution taken may be considered as one of
negligence or imprudence, you do not separate the homicide as one of the product of criminal
negligence. It will still be robbery with homicide, whether the person killed is connected with the
robbery or not. He need not also be in the place of the robbery.

In one case, in the course of the struggle in a house where the robbery was being committed, the
owner of the place tried to wrest the arm of the robber. A person several meters away was the
one who got killed. The crime was held to be robbery with homicide.

Note that the person killed need not be one who is identified with the owner of the place where
the robbery is committed or one who is a stranger to the robbers. It is enough that the homicide
was committed by reason of the robbery or on the occasion thereof.

Illustration:

There are two robbers who broke into a house and carried away some valuables. After they left
such house these two robbers decided to cut or divide the loot already so that they can go of
them. So while they are dividing the loot the other robber noticed that the one doing the division
219

is trying to cheat him and so he immediately boxed him. Now this robber who was boxed then
pulled out his gun and fired at the other one killing the latter. Would that bring about the crime of
robbery with homicide? Yes. Even if the robbery was already consummated, the killing was still
by reason of the robbery because they quarreled in dividing the loot that is the subject of the
robbery.

In People v. Domingo, 184 SCRA 409, on the occasion of the robbery, the storeowner, a
septuagenarian, suffered a stroke due to the extreme fear which directly caused his death when
the robbers pointed their guns at him. It was held that the crime committed was robbery with
homicide. It is immaterial that death supervened as a mere accident as long as the homicide was
produced by reason or on the occasion of the robbery, because it is only the result which matters,
without reference to the circumstances or causes or persons intervening in the commission of the
crime which must be considered.

Remember also that intent to rob must be proved. But there must be an allegation as to the
robbery not only as to the intention to rob.

If the motive is to kill and the taking is committed thereafter, the crimes committed are homicide
and theft. If the primordial intent of the offender is to kill and not to rob but after the killing of the
victims a robbery was committed, then there are will be two separate crimes.

Illustration:

If a person had an enemy and killed him and after killing him, saw that he had a beautiful ring and
took this, the crime would be not robbery with homicide because the primary criminal intent is to
kill. So, there will be two crimes: one for the killing and one for the taking of the property after the
victim was killed. Now this would bring about the crime of theft and it could not be robbery
anymore because the person is already dead.

For robbery with homicide to exist, homicide must be committed by reason or on the occasion of
the robbery, that is, the homicide must be committed in the course or because of the robbery.

Robbery and homicide are separate offenses when the homicide is not committed on the
occasion or by reason of the robbery.

Where the victims were killed, not for the purpose of committing robbery, and the idea of taking
the money and other personal property of the victims was conceived by the culprits only after the
killing, it was held in People v. Domingo, 184 SCRA 409, that the culprits committed two
separate crimes of homicide or murder (qualified by abuse of superior strength) and theft.

The victims were killed first then their money was taken the money from their dead bodies. This is
robbery with homicide. It is important here that the intent to commit robbery must precede the
taking of human life in robbery with homicide. The offender must have the intent to take personal
property before the killing.

It must be conclusively shown that the homicide was committed for the purpose of robbing the
victim. In People v. Hernandez, appellants had not thought of robbery prior to the killing. The
thought of taking the victims wristwatch was conceived only after the killing and throwing of the
victim in the canal. Appellants were convicted of two separate crimes of homicide and theft as
there is absent direct relation and intimate connection between the robbery and the killing.

However, if the elements of the crime of robbery with violence employed

against persons, fail to meet the requirements of Article 294, as when the
robbery resulted only in the commission of frustrated homicide, then Article
294 should be ignored and the general provision of the law should be applied,
such as the provision of Article 48.

If robbery is proved but the homicide is not proven, the accused should be
convicted of robbery only and the penalty shall not be based under
paragraph 1 but on paragraph 5
220

of the same article, since only intimidation or violence was employed and it
did not result in any of the situations mentioned in paragraphs 1 to 4.

If the robbery is not proven but the homicide is established, then the accused
should be held liable only for homicide and the penalty shall be taken from
Article 249, which deals with crimes against property, so, if several homicides
are alleged in the information for robbery with homicide, and all of these
homicides are proven beyond reasonable doubt, the court will impose a
separate penalty for each of the homicide that is established by the evidence.
(People vs. Barruga, 61 Phil. 318)

It is important to remember that the special complex crime of robbery with

homicide is committed, where there exists a direct relation, an intimate
connection between the robbery and the killing, irrespective of whether the
killing be prior or subsequent to the robbery; or whether both crimes were
committed at the same time. (People vs. Puesca,

87 SCRA 130)

Robbery with homicide need not be committed inside a building. What

constitutes the crime as robbery with homicide is the killing of a person on
the occasion or by reason of the taking of personal property belonging to
another with intent to gain.

The killing on the occasion of robbery may come in different forms. 1) It may
be done by the offender for the purpose of suppressing evidence, like when
the victim is killed because he happens to know the person of the offender; or
2) when the killing is done in order to prevent or remove any opposition
which the victim may put up as regards the taking of his personal belongings.
3) The killing may also result from the offenders defense of his possession of
the stolen goods. 4) Or it may be resorted to by the offender to facilitate his
escape after the commission of the robbery.

In People vs. Macalalad, 9 Phil. (1907), the Supreme Court ruled that whenever
homicide is committed as a consequence or on the occasion of a robbery, all
those who took part in the commission of the robbery are guilty as principals
in the crime of robbery with homicide unless it appears that the principal
claiming innocence in the killing, has attempted or tried to prevent the
killing. The burden of proving the attempt to prevent others from killing the
victim rests on the co-principal of the crime who makes such assertion or
claim.
The same principle has been applied by the Supreme Court where the crime
committed is robbery accompanied by rape. The criminal liability of the
person or persons who took no part in the commission of the rape which
accompanied the robbery is the same as the robber or robbers who actually
committed the rape unless the robber or robbers claiming innocence of the
rape had endeavored to prevent the commission of the rape.

(People vs. Tiongco, 37 Phil. 95)

robbery with rape

intent to commit robbery must precede rape.

Prosecution of the crime need not be by offended party fiscal can sign the information.

When rape and homicide co-exist, rape should be considered as aggravating only and
the crime is still robbery with homicide
221

Article 48 is not applicable to this crime because robbery is not a necessary

means for the commission of rape. Neither is rape necessary to commit
robbery.

This is another form of violence or intimidation upon person. The rape accompanies the robbery.
In this case where rape and not homicide is committed, there is only a crime of robbery with rape
if both the robbery and the rape are consummated. If during the robbery, attempted rape were
committed, the crimes would be separate, that is, one for robbery and one for the attempted rape.

The rape committed on the occasion of the robbery is not considered a private crime because the
crime is robbery, which is a crime against property. So, even though the robber may have married
the woman raped, the crime remains robbery with rape. The rape is not erased. This is because
the crime is against property which is a single indivisible offense.

If the woman, who was raped on the occasion of the robbery, pardoned the rapist who is one of
the robbers, that would not erase the crime of rape. The offender would still be prosecuted for the
crime of robbery with rape, as long as the rape is consummated.

Pardon by the offended party will not alter the criminal liability of the offender
because in robbery with rape, the crime committed is not a crime against
chastity but a crime against property. Even under the present amendment
which classifies rape as a crime against person, the change has no legal
effect on the provision of Article 294 since the special complex crime of
robbery with rape is considered, by express provision of law, a single crime
notwithstanding that there is a plurality of crimes committed.

If the rape is attempted, since it will be a separate charge and the offended woman pardoned the
offender, that would bring about a bar to the prosecution of the attempted rape. If the offender
married the offended woman, that would extinguish the criminal liability because the rape is the
subject of a separate prosecution.

The intention must be to commit robbery and even if the rape is committed before the robbery,
robbery with rape is committed. But if the accused tried to rape the offended party and because
of resistance, he failed to consummate the act, and then he snatched the vanity case from her
hands when she ran away, two crimes are committed: attempted rape and theft.

There is no complex crime under Article 48 because a single act is not committed and attempted
rape is not a means necessary to commit theft and vice-versa.
The Revised Penal Code does not differentiate whether rape was committed before, during or
after the robbery. It is enough that the robbery accompanied the rape. Robbery must not be a
mere accident or afterthought.

If the two (2) crimes were separated both by time and place, there is no complex crime of
Robbery with Rape. Thus, when complainant went out of her room about 1:30 a.m. to urinate, one
of the accused grabbed her, poked an icepick on her neck , and dragged her out of the house and
was made to board a taxi; and before boarding, she saw the two (2) companions of the man
carrying her typewriter and betamax and then joining them in the taxi, and that after alighting
from the taxi, the two (2) companions left her, and the man who had grabbed her brought her to a
motel, where by means of force and intimidation he was able to have sex with her, the crimes
committed are Robbery and Forcible Abduction with Rape. The Rape committed cannot be
complexed with Robbery. (People vs. Angeles, 222 SCRA 451).

In People v. Flores, 195 SCRA 295, although the offenders plan was to get the victims money,
rape her and kill her, but in the actual execution of the crime, the thoughts of depriving the victim
of her valuables was relegated to the background and the offenders prurient desires surfaced.
They persisted in satisfying their lust. They would have forgotten about their intent to rob if not for
the accidental touching of the victims ring and wristwatch. The taking of the victims valuables
222

t
h
e
ft
t .
u
r
n
e
d
It
o w
u a
t s
h
el
t
d
o
t
h
b
a
e
t
t
a w
n o
di
a st
f in
t ct
e c
r ri
t m
h e
o s
u w
g e
h r
t e
. c
o
h m
o m
m itt
i e
c d
i :
d r
e a
p
a e
n w
d it
h

In
Pe
opl
e v.
Din
ola,
183
SC
RA
493
, it
was
hel
d
that
if
the
orig
inal
cri
min
al
des
ign
of
the
acc
use
d
was
to
co
mm
it
rap
e
and
afte
r
co
mm
ittin
g
the
rap
e,
the
acc
use
d
co
mm
itte
d
rob
ber
y
bec
aus
e
the
opp
ortu
nity
pre
sen
ted
itsel
f,
two
disti
nct
cri
me
s
rap
e
and
rob
ber
y
wer
e
co
mm
itte
d
not
rob
ber
y
with
rap
e.
In
the
latt
er,
the
cri
min
al
inte
nt
to
gai
n
mu
st
pre
ced
e
the
inte
nt
to
rap
e.

If
ra
pe
wa
s
th
e
pri
ma
ry
obj
ect
ive
of
th
e
ac
cu
se
d
an
d
th
e
tak
ing
of
he
r
je
we
lrie
s
wa
s
no
t
do
ne
wit
h
int
en
t
to
gai
n
bu
t
as
a
tok
en
of
he
r
su
pp
os
ed
co
ns
en
t
to
th
e
se
xu
al
int
erc
ou
rse
,
th
e
ac
cu
se
d
is
gui
lty
of
tw
o
dis
tin
ct
cri
me
s:
ra
pe
an
d
un
jus
t
ve
xa
tio
n.

(Pe
opl
e
vs.
Vill
ari
no,
C.
A.
G.
R.
No.
634
2-
R,
No
v.
26,
195
1)

ro
bb
er
y
wit
h
inti
mi
da
tio
n
act
s
do
ne
by
the
acc
use
d
whi
ch
by
thei
r
ow
n
nat
ure
or
by
rea
son
of
the
circ
um
sta
nce
s
ins
pir
e
fea
r in
the
per
son
ag
ain
st
wh
om
the
y
are
dir
ect
ed

In
th
e
tak
ing
of
pe
rso
nal
pro
pe
rty
, it
is
ne
ce
ss
ar
y
th
at
vio
len
ce
m
us
t
be
e
m
plo
ye
d
by
th
e
off
en
de
r
in
or
de
r
th
at
th
e
ta
kin
g
m
ay
be
co
nsi
de
re
d
as
ro
bb
er
y.
So,
wh
ere
th
e
tak
ing
is
wit
ho
ut
vio
len
ce
or
inti
mi
da
tio
n
an
d
th
e
sa
me
is
co
mp
let
e,
bu
t
th
e
vic
ti
m
pu
rsu
ed
th
e
off
en
de
r
in
or
de
r
to
rec
ov
er
th
e
pe
rso
nal
pro
pe
rty
tak
en
an
d
by
th
e
rea
so
n
th
ere
of,
he
su
ffe
rs
les
s
ser
iou
s
or
sli
gh
t
ph
ysi
cal
inj
uri
es
in
th
e
ha
nd
s
of
th
e
off
en
de
r,
th
e
vio
len
ce
em
plo
ye
d
on
th
e
vic
ti
m
wh
ich
res
ult
ed
to
his
inj
uri
es
wil
l
no
t
co
nv
ert
th
e
tak
ing
of
his
pe
rso
nal
pro
pe
rty
to
rob
be
ry.
In
su
ch
a
ca
se,
th
e
off
en
de
r is
lia
ble
for
tw
o
cri
me
s,
na
me
ly,
th
eft
an
d
les
s
se
rio
us
or
sli
gh
t
ph
ysi
cal
inj
uri
es.

Th
e
int
imi
da
tio
n
m
us
t
be
pr
es
en
t
at
th
e
ti
m
e
of
th
e
ta
kin
g
be
for
e
it
is
co
m
ple
te
d.
If
th
e
tak
ing
is
co
mp
let
ed
wit
ho
ut
inti
mi
da
tio
n
an
d it
is
em
plo
ye
d
by
th
e
off
en
de
r
onl
y
to
pr
ev
en
t
th
e
ow
ne
r
fro
m
rec
ov
eri
ng
his
sto
len
pro
pe
rty
,
tw
o
cri
me
s
are
co
m
mi
tte
d
by
th
e
off
en
de
r:
th
eft
an
d
gr
av
e
thr
ea
t.

If
vio
len
ce
is
em
plo
ye
d
ag
ain
st
th
e
off
en
de
d
pa
rty
in
or
de
r
to
de
pri
ve
hi
m
of
his
pe
rso
nal
pro
pe
rty
an
d
th
e
vio
len
ce
res
ult
ed
to
th
e
infl
icti
on
of
les
s
ser
iou
s
or
sli
gh
t
ph
ysi
cal
inj
uri
es,
th
e
cri
me
co
m
mi
tte
d
wo
uld
onl
y
be
rob
be
ry.
He
nc
e,
th
ere
is
no
cri
m
e
of
ro
bb
er
y
wit
h
les
s
se
rio
us
or
sli
gh
t
inj
uri
es.
(U.
S.
vs.
Ba
rro
ga,
21
Phi
l
161
)

On
ro
bb
er
y
wit
h
ph
ysi
cal
inj
uri
es

To
be
con
sid
ere
d
as
suc
h,
the
phy
sic
al
inju
ries
mu
st
alw
ays
be
seri
ous
. If
the
phy
sic
al
inju
ries
are
onl
y
les
s
seri
ous
or
slig
ht,
the
y
are
abs
orb
ed
in
the
rob
ber
y.
The
cri
me
bec
om
es
mer
ely
rob
ber
y.
But
if
the
les
s
seri
ous
phy
sic
al
inju
ries
wer
e
co
mm
itte
d
afte
r
the
rob
ber
y
wa
s
alre
ady
con
su
mm
ate
d,
the
re
wo
uld
be
a
sep
ara
te
cha
rge
for
the
les
s
seri
ous
phy
sic
al
inju
ries
. It
will
onl
y
be
abs
orb
ed
in
the
rob
ber
y if
it
was
infli
cte
d in
the
cou
rse
of
the
exe
cuti
on
of
the
rob
ber
y.
The
sa
me
is
true
in
the
cas
e of
slig
ht
phy
sica
l
inju
ries
.

Illus
trati
on:

Afte
r
the
rob
ber
y
had
bee
n
co
mm
itte
d
and
the
rob
ber
s
wer
e
alre
ady
flee
ing
fro
m
the
hou
se
wh
ere
the
rob
ber
y
was
co
mm
itte
d,
the
ow
ner
of
the
hou
se
cha
sed
the
m
and
the
rob
ber
s
fou
ght
bac
k. If
onl
y
less
seri
ous
phy
sica
l
inju
ries
wer
e
infli
cte
d,
ther
e
will
be
sep
ara
te
cri
me
s:
one
for
rob
ber
y
and
one
for
les
s
seri
ous
phy
sic
al
inju
ries
.
223

But if after the robbery was committed and the robbers were already fleeing from the house
where the robbery was committed, the owner or members of the family of the owner chased
them, and they fought back and somebody was killed, the crime would still be robbery with
homicide. But if serious physical injuries were inflicted and the serious physical injuries rendered
the victim impotent or insane or the victim lost the use of any of his senses or lost a part of his
body, the crime would still be robbery with serious physical injuries. The physical injuries

(serious) should not be separated regardless of whether they retorted in the course of the
commission of the robbery or even after the robbery was consummated.

In Article 299, it is only when the physical injuries resulted in the deformity or incapacitated the
offended party from labor for more than 30 days that the law requires such physical injuries to
have been inflicted in the course of the execution of the robbery, and only upon persons who are
not responsible in the commission of the robbery.

But if the physical injuries inflicted are those falling under subdivision 1 and 2 of Article 263, even
though the physical injuries were inflicted upon one of the robbers themselves, and even though it
had been inflicted after the robbery was already consummated, the crime will still be robbery with
serious physical injuries. There will only be one count of accusation.

Illustration:

After the robbers fled from the place where the robbery was committed, they decided to divide
the spoils and in the course of the division of the spoils or the loot, they quarreled. They shot it
out and one of the robbers was killed. The crime is still robbery with homicide even though one of
the robbers was the one killed by one of them. If they quarreled and serious physical injuries
rendered one of the robbers impotent, blind in both eyes, or got insane, or he lost the use of any
of his senses, lost the use of any part of his body, the crime will still be robbery with serious
physical injuries.

If the robbers quarreled over the loot and one of the robbers hacked the other robber causing a
deformity in his face, the crime will only be robbery and a separate charge for the serious physical
injuries because when it is a deformity that is caused, the law requires that the deformity must
have been inflicted upon one who is not a participant in the robbery. Moreover, the physical
injuries which gave rise to the deformity or which incapacitated the offended party from labor for
more than 30 days, must have been inflicted in the course of the execution of the robbery or while
the robbery was taking place.

If it was inflicted when the thieves/robbers are already dividing the spoils, it cannot be considered
as inflicted in the course of execution of the robbery and hence, it will not give rise to the crime of
robbery with serious physical injuries. You only have one count of robbery and another count for
the serious physical injuries inflicted.
If, during or on the occasion or by reason of the robbery, a killing, rape or serious physical injuries
took place, there will only be one crime of robbery with homicide because all of these killing,
rape, serious physical injuries -- are contemplated by law as the violence or intimidation which
characterizes the taking as on of robbery. You charge the offenders of robbery with homicide.

The rape or physical injuries will only be appreciated as aggravating circumstance and is not the
subject of a separate prosecution. They will only call for the imposition of the penalty in the
maximum period.

If on the occasion of the robbery with homicide, robbery with force upon things was also
committed, you will not have only one robbery but you will have a complex crime of robbery with
homicide and robbery with force upon things (see Napolis v. CA). This is because robbery with
violence or intimidation upon persons is a separate crime from robbery with force upon things.

Robbery with homicide, robbery with intentional mutilation and robbery with rape are not qualified
by band or uninhabited place. These aggravating circumstances only qualify robbery with
physical injuries under subdivision 2, 3, and 4 of Article 299.
224

When it is robbery with homicide, the band or uninhabited place is only a generic aggravating
circumstance. It will not qualify the crime to a higher degree of penalty.

In People v. Salvilla, it was held that if in a robbery with serious physical injuries, the offenders
herded the women and children into an office and detained them to compel the offended party to
come out with the money, the crime of serious illegal detention was a necessary means to
facilitate the robbery; thus, the complex crimes of robbery with serious physical injuries and
serious illegal detention.

But if the victims were detained because of the timely arrival of the police, such that the offenders
had no choice but to detain the victims as hostages in exchange for their safe passage, the
detention is absorbed by the crime of robbery and is not a separate crime. This was the ruling in

People v. Astor.

On robbery with arson

Another innovation of Republic Act No. 7659 is the composite crime of robbery with arson if arson
is committed by reason of or on occasion of the robbery. The composite crime would only be
committed if the primordial intent of the offender is to commit robbery and there is no killing, rape,
or intentional mutilation committed by the offender during the robbery. Otherwise, the crime would
be robbery with homicide, or robbery with rape, or robbery with intentional mutilation, in that
order, and the arson would only be an aggravating circumstance. It is essential that robbery
precedes the arson, as in the case of rape and intentional mutilation, because the amendment
included arson among the rape and intentional mutilation which have accompanied the robbery.

Moreover, it should be noted that arson has been made a component only of robbery with
violence against or intimidation of persons in said Article 294, but not of robbery by the use of
force upon things in Articles 299 and 302.

So, if the robbery was by the use of force upon things and therewith arson was committed, two
distinct crimes are committed.

Article 295

QUALIFIED ROBBERY WITH VIOLENCE OR INTIMIDATION

Qualifying circumstances in robbery with violence or intimidation of persons, if any of
the offenses defined in subdivisions 3, 4 and 5 of Art 294 is committed:

in an uninhabited place or

by a band or

by attacking a moving train, street car, motor vehicle or airship, or

by entering the passengers compartments in a train, or in any manner taking the

passengers thereof by surprise in the respective conveyances, or

on a street, road, highway or alley and the intimidation is made with the use of firearms,
the offender shall be punished by the max period of the proper penalties prescribed in
art 294

Notes:

Must be alleged in the information

Cant be offset by generic mitigating

225

3. Art 295 will not apply to: robbery w/ homicide, rape or SPI under par 1 of art 263

Article 296

ROBBERY BY A BAND

Notes:

Band is defined as consisting of at least four armed malefactors organized

with the intention of carrying out any unlawful design. Their participation in
the commission of the crime must be actual. The offender must be principal
by direct participation, so that, a principal by inducement cannot be
convicted of this crime where the aggravating circumstance of band shall be
appreciated against him, since the law requires as a condition to its
commission the actual participation of the offender in the execution of the
crime. In such a case, the conviction of a principal by inducement will only be
limited to his criminal liability as a co-conspirator.

Liability for the acts of the other members of the band

he was a member of the band

he was present at the commission of a robbery by that band

other members of the band committed an assault

he did not attempt to prevent the assault

Conspiracy to commit robbery with homicide even if less than 4 armed men
Conspiracy to commit robbery only but homicide was committed also on the
occasion thereof all members of the band are liable for robbery with homicide

Even if the agreement refers only to the robbery, nonetheless, where the
robbery is committed by a band and a person is killed, any member who was
present at the commission of the robbery and who did not do anything to
prevent the killing of the victim on the occasion of the robbery shall be held
liable for the crime of robbery with homicide. (People vs. Cinco, 194 SCRA 535)

Conspiracy is presumed when 4 or more armed persons committed robbery

Unless the others attempted to prevent the assault guilty of robbery by band only

Band is a generic aggravating circumstance in the crime of robbery with

homicide or rape. But in the other circumstances provided under Article 294
particularly paragraphs 3, 4 and 5, band is a special aggravating
circumstance which must be alleged in the information.

Band is a special aggravating circumstance if the robbery results in the

infliction of serious physical injuries.

The arms contemplated under this article refers to any deadly weapon and is
not limited to firearms, whether long or short.
226

Article 297

ATTEMPTED OR FRUSTRATED ROBBERY WITH HOMICIDE

Notes:

1. Whether robbery is attempted or frustrated, penalty is the same

When the robbery is attempted or frustrated, Art. 294 has no application

because the robbery and the homicide must be both consummated.

Where the homicide is only attempted or frustrated, Article 297 does not
apply. In the same manner, where the attempted or frustrated robbery results
in the commission of serious physical injuries, Article 297 has no application.
In such a case, the crime shall be treated under the provisions of Article 48
on ordinary complex crimes. Consequently, the penalty prescribed by Article
48 shall be observed.

Article 298

EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION

ELEMENTS:

That the offender has intent to defraud another.

That the offender compels him to sign, execute, or deliver any public instrument or document.
That the compulsion is by means of violence or intimidation.

The element of intent to gain or fraudulent intent is what distinguishes this

felony from grave coercion. Although both crimes share a common element
which is the compelling of any person to do something against his will,
nonetheless, in coercion, the fear created in the mind of the offended party is
not immediate but remote. In this type of robbery, the fear is immediate and
not remote. In coercion, there is no intent to gain whereas in this form of
robbery, intent to gain is an indispensable element.

Article 299

ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE

DEVOTED TO WORSHIP

ELEMENTS:

That the offender entered (a) an inhabited house, or (b) public buildings, or (c) edifice devoted
to religious worship.

That the entrance was effected by any of the following means:

Through an opening not intended for entrance or egress.

By breaking any wall, roof, or floor or breaking any door or window.

By using false keys, picklocks or similar tools or.

227

By using any fictitious name or pretending the exercise of public authority.

That once inside the building, the offender took personal property belonging to another with
intent to gain.

Notes:

In this kind of Robbery, no violence or intimidation against persons is ever used.

1. Includes dependencies (stairways, hallways, etc.)

A small store located on the ground floor of a house is a dependency of the house, there being no
partition between the store and the house and in going to the main stairway, one has to enter the
store which has a door. (U.S. vs. Ventura, 39 Phil. 523).

Inhabited house any shelter, ship or vessel constituting the dwelling of one or more
person even though temporarily absent dependencies, courts, corals, barns, etc.

NOT INCLUDED ORCHARD, LANDS FOR CULTIVATION.

Important for robbery by use of force upon things, it is necessary that offender enters the
building or where object may be found. NO ENTRY, NO ROBBERY

In the absence of evidence to show how bandits effected an entrance into the convent which they
robbed, there can be no conviction under this article. The act would be treated as Theft. ( U.S. vs.

Callotes, 2 PHIL 16 )

"Force upon things" has a technical meaning in law. Not any kind of force upon things will
characterize the taking as one of robbery. The force upon things contemplated requires some
element of trespass into the establishment where the robbery was committed. In other words, the
offender must have entered the premises where the robbery was committed. If no entry was
effected, even though force may have been employed actually in the taking of the property from
within the premises, the crime will only be theft.

The term force upon things has a legal meaning. It means the employment of
force to effect entrance into the house or building by destroying the door,
window, roof, wall or floor of the aforesaid house or building. In other words,
the force upon things has no reference to personal property but to a house or
building which is ordinarily classified as real property.

Entrance is necessary mere insertion of hand is not enough (whole body); not to get
out but to enter therefore, evidence to such effect is necessary

Two predicates that will give rise to the crime as robbery:

By mere entering alone, a robbery will be committed if any personal property is taken from within;

The entering will not give rise to robbery even if something is taken inside. It is the breaking of the
receptacle or closet or cabinet where the personal property is kept that will give rise to robbery, or
the taking of a sealed, locked receptacle to be broken outside the premises.
228

If by the mere entering, that would already qualify the taking of any personal property inside as
robbery, it is immaterial whether the offender stays inside the premises. The breaking of things
inside the premises will only be important to consider if the entering by itself will not characterize
the crime as robbery with force upon things.

Modes of entering that would give rise to the crime of robbery with force upon things if something
is taken inside the premises: entering into an opening not intended for entrance or egress, under

Article 299 (a).

Illustration:

The entry was made through a fire escape. The fire escape was intended for egress. The entry
will not characterize the taking as one of robbery because it is an opening intended for egress,
although it may not be intended for entrance. If the entering were done through the window, even
if the window was not broken, that would characterize the taking of personal property inside as
robbery because the window is not an opening intended for entrance.

Illustration:

On a sari-sari store, a vehicle bumped the wall. The wall collapsed. There was a small opening
there. At night, a man entered through that opening without breaking the same. The crime will
already be robbery if he takes property from within because that is not an opening intended for
the purpose.

Even of there is a breaking of wall, roof, floor or window, but the offender did not enter, it would
not give rise to robbery with force upon things.

Note that in the crime of robbery with force upon things, what should be considered is the means
of entrance and means of taking the personal property from within. If those means do not come
within the definition under the Revised Penal Code, the taking will only give rise to theft.

Those means must be employed in entering. If the offender had already entered when these
means were employed, anything taken inside, without breaking of any sealed or closed
receptacle, will not give rise to robbery.

Illustration:
A found B inside his (As) house. He asked B what the latter was doping there. B claimed he is an
inspector from the local city government to look after the electrical installations. At the time B was
chanced upon by A, he has already entered. So anything he took inside without breaking of any
sealed or closed receptacle will not give rise to robbery because the simulation of public authority
was made not in order to enter but when he has already entered.

P v. Lamahang intent to rob being present is necessary

Place: house or building; not car

Public building every building owned, rented or used by the government (though
owned by private persons) though temporarily vacant

Not robbery passing through open door but getting out of a window

If accused entered the house through a door, and it was while escaping that he broke any wall,
floor or window after taking personal property inside the house there is no Robbery committed,
only Theft.

Outside door must be broken, smashed. Theft if lock is merely removed or door was
merely pushed
229

Breaking of the door under Article299 (b) Originally, the interpretation was that in order that
there be a breaking of the door in contemplation of law, there must be some damage to the door.

Before, if the door was not damaged but only the lock attached to the door was broken, the taking
from within is only theft. But the ruling is now abandoned because the door is considered useless
without the lock. Even if it is not the door that was broken but only the lock, the breaking of the
lock renders the door useless and it is therefore tantamount to the breaking of the door. Hence,
the taking inside is considered robbery with force upon things.

False keys genuine keys stolen from the owner or any keys other than those intended
by the owner for use in the lock

Picklocks specially made, adopted for commission of robbery

Key stolen not by force, otherwise, its robbery by violence and intimidation against
persons

False key used in opening house and not furniture inside, otherwise, theft (for latter to
be robbery., must be broken and not just opened)

Use of picklocks or false keys refers to the entering into the premises If the picklock or false key
was used not to enter the premises because the offender had already entered but was used to
unlock an interior door or even a receptacle where the valuable or personal belonging was taken,
the use of false key or picklock will not give rise to the robbery with force upon things because
these are considered by law as only a means to gain entrance, and not to extract personal
belongings from the place where it is being kept.

15. Gen. Rule: outside door. Exception: inside door in a separate dwelling

If in the course of committing the robbery within the premises some interior doors are broken, the
taking from inside the room where the door leads to will only give rise to theft. The breaking of
doors contemplated in the law refers to the main door of the house and not the interior door.

But if it is the door of a cabinet that is broken and the valuable inside the cabinet was taken, the
breaking of the cabinet door would characterize the taking as robbery. Although that particular
door is not included as part of the house, the cabinet keeps the contents thereof safe.

16. E.g. pretending to be police to be able to enter (not pretending after entrance)
When the robbery is committed in a house which is inhabited, or in a public building or in a place
devoted to religious worship, the use of fictitious name or pretension to possess authority in order
to gain entrance will characterize the taking inside as robbery with force upon things.

If A and B told the occupant of the house that they were the nephews of the spouse of the owner
of the house, and because of that, the closed door was opened, or that they were NBI agents
executing a warrant of arrest, and so the occupant opened the door, any taking personal property
thereat with intent to gain, would be Robbery.

Question & Answer

Certain men pretended to be from the Price Control Commission and went to a warehouse
owned by a private person. They told the guard to open the warehouse purportedly to see if the
private person is hoarding essential commodities there. The guard obliged. They went inside and
broke in . They loaded some of the merchandise inside claiming that it is the product of hoarding
and then drove away. What crime was committed?
230

It is only theft because the premises where the simulation of public authority was committed is not
an inhabited house, not a public building, and not a place devoted to religious worship. Where the
house is a private building or is uninhabited, even though there is simulation of public authority in
committing the taking or even if he used a fictitious name, the crime is only theft.

ELEMENTS OF ROBBERY WITH FORCE UPON SUBDIVISION (B) OR ART. 299

That the offender is inside a dwelling house, public building, or edifice devoted to religious
worship, regardless of the circumstances under which he entered it

That the offender takes personal property belonging to another with intent to gain, under any
of the following circumstances.

by the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or
receptacle, or

by taking such furniture or objects away to be broken or forced open outside the place of the
robbery.

Notes:

1. Entrance ( no matter how done)

If the entering does not characterize the taking inside as one of robbery with force upon things, it
is the conduct inside that would give rise to the robbery if there would be a breaking of sealed,
locked or closed receptacles or cabinet in order to get the personal belongings from within such
receptacles, cabinet or place where it is kept.

2. Offender may be servants or guests

A friend who has invited in a house and who enters a room where he finds a
closed cabinet where money is kept, is guilty of robbery if he forcibly opens
the said cabinet and takes the money contained therein.
When sealed box is taken out for the purpose of breaking it, no need to open already
consummated robbery

Estafa if box is in the custody of accused

Theft if box found outside and forced open

Article 300

ROBBERY IN AN UNINHABITED PLACE AND BY A BAND

When the robbery with force upon things is committed in an uninhabited

place and by a band, the robbery becomes qualified. In the same manner,
where robbery with violence against or intimidation of persons is committed
by a band or in an uninhabited place, the crime becomes qualified.

The place considered uninhabited when it is not used as a dwelling. It may

refer to a building or a house which is not used as a dwelling.
231

If a house is inhabited and its owners or occupants temporarily left the place
to take a short vacation in another place, their casual absence will not make
the place or house uninhabited. (U. S. vs. Ventura, 39 Phil. 523)

Article 301

WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING OR BUILDING

DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES

Notes:

Inhabited house Any shelter, ship, or vessel constituting the dwelling of one or more persons,
even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is
committed.

Public building Includes every building owned by the government or belonging to a private
person but used or rented by the government, although temporarily unoccupied by the same.

dependencies are all interior courts, corrals, warehouses, granaries or enclosed

places:

contiguous to the building

having an interior entrance connected therewith

which form part of the whole

Garage must have 3 requirements. Exception: orchards/lands

Article 302

ROBBERY IN AN UNINHABITED PLACE OR IN A PRIVATE BUILDING

ELEMENTS:

That the offender entered an uninhabited place or a building which was not a dwelling house,
not a public building, or not an edifice devoted to religious worship.

that any of the following circumstances was present:

That entrance was effected through an opening not intended for entrance or egress.

A wall, roof, floor, or outside door or window was broken.

The entrance was effected through the use of false keys, picklocks or other similar tools.

A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken or

A closed or sealed receptacle was removed, even if the same be broken open elsewhere.

That with intent to gain the offender took therefrom personal property belonging to

another.

Notes:

1. Second kind of robbery with force upon things

It must be taken note of, that the entrance by using any fictitious name or pretending the exercise
of public authority is not among those mentioned in Article 302 because the place is Uninhabited
and therefore without person present. Likewise, in this class of Robbery, the penalty depends on
the amount taken disregarding the circumstances of whether the robbers are armed or not as in the
case in Robbery in Inhabited Place.
232

Uninhabited place is an uninhabited building (habitable, not any of the 3 places

mentioned)

Ex. warehouse, freight car, store. Exception: pigsty

A store may or may not be an inhabited place depending upon the circumstances of whether or
not it is usually occupied by any person lodging therein at night. Although it may be used as a
dwelling to sustain a conviction under Article 299, the information must allege that the same was
used and occupied as a dwelling (People vs. Tubog, 49 Phil. 620), otherwise Art. 302 is
applicable.

Same manner as 299 except that was entered into was an uninhabited place or a
building other than the 3 mentioned in 299. Exception: does not include use of fictitious
name or pretending the exercise of public authority

Breaking of padlock (but not door) is only theft

False keys genuine keys stolen from the owner or any other keys other than those
intended by the owner for use in the lock forcibly opened

Article 303

ROBBERY OF CEREALS, FRUITS OR FIRE WOOD IN AN UNINHABITED

PLACE OR PRIVATE BUILDING

Under Article 303, if the robbery under Article 299 and 302 consists in the taking of cereals,
fruits, or firewood, the penalty imposable is lower.
The word cereals however must be understood to mean seedlings or
semilla. It does not include hulled rice. It may include palay or unhulled
palay.

While the law uses the term uninhabited place, it however refers to
uninhabited building and its dependencies. If the cereals, fruits or firewood
were taken outside a building and its dependencies, the crime committed
would only be theft even though the taking was done in an uninhabited place.

Article 304

ILLEGAL POSSESSION OF PICKLOCKS OR SIMILAR TOOLS

ELEMENTS:

That the offender has in his possession picklocks or similar tools.

That such picklocks or similar tools are specially adopted to the commission of robbery.

That the offender does not have lawful cause for such possession.

Note: Actual use of the same is not necessary

The law also prohibits the manufacture or fabrication of such tools. If the
manufacturer or maker or locksmith himself is the offender, a higher penalty
is prescribed by law.
233

Supposing that in the crime of robbery, the offender used a picklock to enter
a building. Can he be charged of illegal possession of picklocks or similar
tools? The answer is NO since the same possession of these tools is already
absorbed in the graver crime of robbery.

Article 305

FALSE KEYS

WHAT CONSTITUTES:

Picklocks, etc.

Genuine key stolen from owner.

Any key other than those intended by owner for use in the lock forcibly opened by the offender

Notes:

Possession of false keys here not punishable

If key was entrusted and used to steal, not robbery (not stolen)

BRIGANDAGE

Brigandage This is a crime committed by more than three armed persons who form a band of
robbers for the purpose of committing robbery in the highway or kidnapping persons for the
purpose of extortion or to obtain ransom, or for any other purpose to be attained by means of
force and violence.
Article 306

WHO ARE BRIGANDS

Brigands more than three armed persons forming a band

Elements of brigandage:

There are least four armed persons;

They formed a band of robbers;

The purpose is any of the following:

To commit robbery in the highway;

To kidnap persons for the purpose of extortion or to obtain ransom; or

To attain by means of force and violence any other purpose.

Presumption of Brigandage:

if members of lawless band and possession of unlicensed firearms (any of them)

possession of any kind of arms (not just firearm)

234

BRIGANDAGE

ROBBERY IN BAND

Purposes are given

Only to commit robbery, not necessarily in hi-way

Mere formation of a band for

If the purpose is to commit a part robbery

the above purpose

Necessary to prove that band actually committed

robbery

There is no need for the band robbers to execute the object of their
association in order to hold them criminally liable for the crime of brigandage.

The primary object on the law on brigandage is to prevent the formation of

bands of robbers. Hence, if the formed band commits robbery with the use of
force upon persons or force upon things, their criminal liability shall be limited
to the commission of such crimes.

Likewise, if the offenders are charged with robbery but the same is not
established by the evidence and what appears clear are the elements of
brigandage where the allegation in the information necessarily includes such
offense, the offender can be convicted of the crime of brigandage.

It does not mean however that to constitute violation of P.D. 532, there must be a band. One or two
persons can be held liable under this law if they perpetrated their acts of depredation in Philippine
Highways against persons who are not pre-determined victims.

If the agreement among more than three armed men is to commit a particular
robbery, brigandage is not committed because the latter must be an
agreement to commit robbery in general or indiscriminately.

Article 307

AIDING AND ABETTING A BAND OF BRIGANDS

ELEMENTS:

That there is a band of brigands.

That the offender knows the band to be of brigands.

That the offender does any of the following acts:

he in any manner aids, abets or protects such band of brigands, or

he gives them information of the movements of the police or other peace officers of the
government or

He acquires or receives the property taken by such brigands.

Notes:

PD 532 brigandage.
Seizure of any person for: (a) ransom; (b) extortion or other unlawful purpose;

taking away of property by violence or intimidation or force upon things or other unlawful
means

Committed by any person

235

3. On any Phil hi-way

Distinction between brigandage under the Revised Penal Code and highway
robbery/brigandage under Presidential Decree No. 532:

Brigandage as a crime under the Revised Penal Code refers to the formation of a band of robbers
by more than three armed persons for the purpose of committing robbery in the highway,
kidnapping for purposes of extortion or ransom, or for any other purpose to be attained by force
and violence. The mere forming of a band, which requires at least four armed persons, if for any
of the criminal purposes stated in Article 306, gives rise to brigandage.

Highway robbery/brigandage under Presidential Decree No. 532 is the seizure of any person for
ransom, extortion or for any other lawful purposes, or the taking away of the property of another
by means of violence against or intimidation of persons or force upon things or other unlawful
means committed by any person on any Philippine highway.

Brigandage under Presidential Decree No. 532 refers to the actual commission of the robbery on
the highway and can be committed by one person alone. It is this brigandage which deserves
some attention because not any robbery in a highway is brigandage or highway robbery. A
distinction should be made between highway robbery/brigandage under the decree and ordinary
robbery committed on a highway under the Revised Penal Code.

In People v. Puno, decided February 17, 1993, the trial court convicted the accused of highway
robbery/ brigandage under Presidential Decree No. 532 and sentenced them to reclusion
perpetua. On appeal, the Supreme Court set aside the judgment and found the accused guilty of
simple robbery as punished in Article 294 (5), in relation to Article 295, and sentenced them
accordingly. The Supreme Court pointed out that the purpose of brigandage is, inter alia,
indiscriminate highway robbery. And that PD 532 punishes as highway robbery or Brigandage
only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on a
Philippine highway as defined therein, not acts committed against a predetermined or particular
victim. A single act of robbery against a particular person chosen by the offender as his specific
victim, even if committed on a highway, is not highway robbery or brigandage.

In US v. Feliciano, 3 Phil. 422, it was pointed out that highway robbery or brigandage is more
than ordinary robbery committed on a highway. The purpose of brigandage is indiscriminate
robbery in highways. If the purpose is only a particular robbery, the crime is only robbery or
robbery in band, if there are at least four armed participants.

Presidential Decree No. 532 introduced amendments to Article 306 and 307 by increasing the
penalties. It does not require at least four armed persons forming a band of robbers. It does not
create a presumption that the offender is a brigand when he an unlicensed firearm is used unlike
the Revised Penal Code. But the essence of brigandage under the Revised Penal Code is the
same as that in the Presidential Decree, that is, crime of depredation wherein the unlawful acts
are directed not only against specific, intended or preconceived victims, but against any and all
prospective victims anywhere on the highway and whoever they may potentially be.

THEFT

Article 308

THEFT

ELEMENTS:

That there be taking of personal property.

That said property belongs to another.

236

That the taking be done with intent to gain.

That the taking be done without the consent of the owner.

That the taking be accomplished without the use of violence against or intimidation of persons
or force upon things.

PERSONS LIABLE:

Those who

with intent to gain

But without violence against or intimidation of persons nor force upon things

take personal property of another

without the latters consent

The taking from an enclosed corral of a carabao belonging to another, after

force is employed to destroy a part of the corral to enter the same, is
considered merely as theft because corral is not a building nor a dependency
of a building. (U. S. vs. Rosales, et al., 1

Phil. 300)

Those who

having found lost property

fail to deliver the same to local authorities or its owner

Notes:

Retention of money/property found is theft. Retention is failure to return (intent to gain)

The word lost is used in the generic sense. It embraces loss by stealing or
any act of a person other than the owner, as well as the act of the owner, or
through some casual occurrence. (People vs. Rodrigo, 16 SCRA 475)

The felony is not limited to the actual finder. Theft of a lost property may be
committed even by a person who is not the actual finder. (People vs. Avila, 44
Phil. 720)

2. Knowledge of owner is not required, knowledge of loss is enough

It is not necessary that the owner of the lost property be known to the
accused. What is important is that he knows or has reason to know that the
property was lost and for this fact alone, it is his duty to turn it over to the
authorities. If he does otherwise, like, if he sells the thing to another, then the
crime of theft is committed.

3. Finder in law is liable

Hidden Treasure

Under Article 438 and 439 of the Civil Code, the finder of hidden treasure on
the property of another and by chance is entitled to one-half of the treasure
that he found. His duty is to tell the owner about the treasure. If he
appropriates the other half pertaining to the owner of the property, he is
liable for theft as to that share. (People vs.

Longdew, C. A. G. R. No. 9380-R, June 4, 1953)

237

Those who

after having maliciously damaged the property of another

remove or make use of the fruits or object of the damage caused by them

Theft of damaged property occurs only after the accused has committed the
crime of malicious mischief. In malicious mischief, the offender destroys the
property of another because of hatred, resentment or other evil motive
against the owner. So, a neighbor who shoots and kills a goat which has
destroyed his flower plants and thereafter slaughters and eats the meat of
the wandering goat is guilty of theft.

Those who

enter an enclosed estate or a field where

trespass is forbidden or which belongs to another and, without the consent of its owner

hunts or fish upon the same or gather fruits, cereals or other forest or farm products

Notes:

Theft is consummated when offender is able to place the thing taken under his control
and in such a situation as he could dispose of it at once (though no opportunity to
dispose) i.e, the control test
In the crime of theft, the law makes only of the term taking and not taking
away. The non-inclusion of the word away is significant because it means
that as soon as the culprit takes possession of the things taken by him, the
crime of theft is already consummated since the law does not require that
the thief be able to carry away the thing taken from the owner. (People vs.
Jaranilla, 55 SCRA 563)

The consummation of the crime of theft takes place upon the voluntary and
malicious taking of the property belonging to another which is realized by the
material occupation of the thing. The property need not be actually taken
away by the thief. It is enough that he has obtained, at some particular
moment, complete control and possession of the thing desired, adverse to
the right of the lawful owner. (People vs. Naval, 46 O. G.

2641)

P v. Dino applies only in theft of bulky goods (meaning there has to be capacity to
dispose of the things). Otherwise, P v. Espiritu full possession is enough

Servant using car without permission deemed qualified theft though use was temporary

Reyes says: there must be some character of permanency in depriving owner of the
use of the object and making himself the owner, therefore must exclude

joyride

Theft: if after custody (only material possession) of object was given to the accused, it is
actually taken by him (no intent to return) e.g. felonious conversion. But it is estafa if
juridical possession is transferred e.g., by contract of bailment
238

Juridical possession of a thing is transferred to another when he receives the

thing in trust or on commission or for administration, or under a quasi-
contract or a contract of bailment. When possession by the offender is under
any of these circumstances and he misappropriates the thing received, he
cannot be held guilty of theft but of estafa because here, he has both the
physical and juridical possession of the property.

6. Includes electricity and gas

inspector misreads meter to earn

one using a jumper

Personal Property

Personal property in the crime of theft includes electric current or properties

that may have no material or concrete appearance. The test is not whether
the subject is corporeal or incorporeal but whether it is incapable of
appropriation by another from the owner. Hence, checks, promissory notes,
and any other commercial documents may be the object of theft because
while they may not be of value to the accused, they are without doubt of
value to the offended party. (U. S. vs. Raboy, 25 Phil. 1) In such a case, the penalty shall
be based on the amount of money represented by the checks or promissory note since, while it
may not of value to the thief, it is undoubtedly of value to the offended party.

(People vs. Koc Song, 63 Phil. 369).

7. Selling share of co-partner is not theft

The personal property must belong to another.

A joint owner or partner who sells the palay to other persons or a co-owner or
co-heir whp appropriates the whole property cannot be guilty of theft since
the property cannot be said to belong to another. (U. S. Reyes, 6 Phil. 441)
One who takes away the property pledged by him to another without the
latters consent, does not commit theft for the simple reason that he is the
owner of the thing taken by him. (L. B. Reyes)

Salary must be delivered first to employee; prior to this, taking of Php is theft

If offender claims property as his own (in good faith) not theft (though later found to be
untrue. If in bad faith theft)

Gain is not just Php satisfaction, use, pleasure desired, any benefit (e.g. joyride)

Gain means the acquisition of a thing useful for the purpose of life. It
includes the benefit which in any other sense may be derived or expected
from the act performed.

Actual gain is not necessary (intent to gain necessary)

Allege lack of consent in info is important

Consent as an element of the crime of theft must be in the concept of

consent that is freely given and not one which is inferred from mere lack of
opposition on the part of the owner.
239

Where the charge of theft under the first sentence of Article 308, the
information must allege lack of consent. The allegation of lack of consent is
indispensable under the first paragraph of Article 308 since the language or
epigraph of the law expressly requires that the (unlawful) taking should be
done without the consent of the owner. In view of the clear text of the law, an
information which does not aver lack of consent of the owner would render
the allegation insufficient and the information may be quashed for failure to
allege an essential element of the crime. (Pua Yi Kun vs. People, G. R. No.

26256, June 26, 1968)

Robbery and theft distinguished.

For robbery to exist, it is necessary that personal property be taken against

the will of the owner; whereas in theft, it is sufficient that consent on the part
of the owner is lacking.

Presumption:

A person found in possession of a thing taken in the recent doing of a

wrongful act is the taker of the thing and the doer of the whole act.

Possession is not limited to actual personal custody. One who deposits stolen
property in a place where it cannot be found may be deemed to have such
property in his possession.

ELEMENTS OF HUNTING, FISHING OR GATHERING FRUITS, ETC. IN ENCLOSED

ESTATE

(PAR. NO.3, ART. 308)

That there is an enclosed estate or a field where trespass is forbidden or which belongs to
another;

That the offender enters the same.

That the offender hunts or fishes upon the same or gathers fruits, cereals or other forest or
farm products, and

That the hunting or fishing or gathering of products is without the consent of the owner.

Note: Fish not in fishpond, otherwise, qualified

Ortega Notes:

Fencing under Presidential Decree No. 1612 is a distinct crime from theft and robbery. If the
participant who profited is being prosecuted with person who robbed, the person is prosecuted as
an accessory. If he is being prosecuted separately, the person who partook of the proceeds is
liable for fencing.

In People v. Judge de Guzman, it was held that fencing is not a continuing offense. Jurisdiction
is with the court of the place where the personal property subject of the robbery or theft was
possessed, bought, kept, or dealt with. The place where the theft or robbery was committed was
inconsequential.
240

Since Section 5 of Presidential Decree No. 1612 expressly provides that mere possession of
anything of value which has been subject of theft or robbery shall be prima facie evidence of
fencing, it follows that a possessor of stolen goods is presumed to have knowledge that the
goods found in his possession after the fact of theft or robbery has been established. The
presumption does not offend the presumption of innocence in the fundamental law. This was the
ruling in Pamintuan v. People, decided on July 11, 1994.

Burden of proof is upon fence to overcome presumption; if explanation insufficient or

unsatisfactory, court will convict. This is a malum prohibitum so intent is not material. But if
prosecution is under the Revised Penal Code, as an accessory, the criminal intent is controlling.

When there is notice to person buying, there may be fencing such as when the price is way below
ordinary prices; this may serve as notice. He may be liable for fencing even if he paid the price
because of the presumption.

Cattle Rustling and Qualified Theft of Large Cattle The crime of cattle-rustling is defined and
punished under Presidential Decree No. 533, the Anti-Cattle Rustling law of 1974, as the taking
by any means, method or scheme, of any large cattle, with or without intent to gain and whether
committed with or without violence against or intimidation of person or force upon things, so long
as the taking is without the consent of the owner/breed thereof. The crime includes the killing or
taking the meat or hide of large cattle without the consent of the owner.

Since the intent to gain is not essential, the killing or destruction of large cattle, even without
taking any part thereof, is not a crime of malicious mischief but cattle-rustling.

The Presidential Decree, however, does not supersede the crime of qualified theft of large cattle
under Article 310 of the Revised Penal Code, but merely modified the penalties provided for theft
of large cattle and, to that extent, amended Articles 309 and 310. Note that the overt act that
gives rise to the crime of cattle-rustling is the taking or killing of large cattle. Where the large
cattle was not taken, but received by the offender from the owner/overseer thereof, the crime is
not cattle-rustling; it is qualified theft of large cattle.

Where the large cattle was received by the offender who thereafter misappropriated it, the crime
is qualified theft under Article 310 if only physical or material possession thereof was yielded to
him. If both material and juridical possession thereof was yielded to him who misappropriated the
large cattle, the crime would be estafa under Article 315 (1b).

Presidential Decree No. 533 is not a special law in the context of Article 10 of the Revised Penal

Code. It merely modified the penalties provided for theft of large cattle under the Revised Penal
Code and amended Article 309 and 310. This is explicit from Section 10 of the Presidential
Decree. Consequently, the trial court should not have convicted the accused of frustrated murder
separately from cattle-rustling, since the former should have been absorbed by cattle-rustling as
killing was a result of or on the occasion of cattle-rustling. It should only be an aggravating
circumstance. But because the information did not allege the injury, the same can no longer be
appreciated; the crime should, therefore be only, simple cattle-rustling. (People v. Martinada,
February 13, 1991)

PENALTIES FOR QUALIFIED THEFT; (309)

The basis of the penalty is the value of the things stolen.

If the property has some value but is not proven with reasonable certainty,
the minimum penalty shall be imposed under par. 6 of Art. 309 (People vs.
Reyes, 58 Phil.

964).
241

When there is no evidence as to the value of the property stolen, the court is
allowed to take judicial knowledge of the value of such property. (People vs. dela
Cruz, 43 O. G.

3206)

When the resulting penalty for the accessory to the crime of theft has no
medium period, the court can impose the penalty which is found favorable to
the accused.

(Cristobal vs. People, 84 Phil. 473).

Article 310

QUALIFIED THEFT

THEFT IS QUALIFIED WHEN:

Committed by domestic servant, or

With grave abuse of confidence, or

Property stolen is:

motor vehicle

mail matter

large cattle
coconut from plantation

fish from fishpond or fishery, or

On occasion of calamities and civil disturbance.

Notes:

When the theft is committed by a domestic servant, the offended party may
either be the employer where the offender is working as a household help, or
a third person as a guest in the house. The roomboy is a hotel is embraced
within the term domestic servant.

1. grave abuse high degree of confidence e.g. guests

In the case of abuse of confidence, the latter must be grave in order to

comply with the requirement of the law because abuse of confidence is not
enough. There must be an allegation in the information that there is a
relation between the accused and the offended party wherein the latter
confided his security as to his person, life and property to the accused with
such degree of confidence and that the accused abused the same.

Abuse of confidence is determined from the trust reposed by the offended

party to the offender. It may also refer to the nature of the work of the
offender which must necessarily involve trust and confidence.

Abuse of confidence is also an element of estafa. To avoid confusion between

theft with abuse of confidence (qualified theft) and estafa with abuse of
confidence, where the offender misappropriates a thing after he receives it
from the victim, the student must remember that in qualified theft, only the
physical or material possession of the thing is transferred. If the offender
acquires the juridical as well as the physical possession of the thing and he
misappropriates it, the crime committed is estafa. Juridical possession of the
thing is acquired when one holds the thing in trust, or on commission, or for
242

administration or under any other obligation involving the duty to deliver or

to return the thing received. If the possession of the offender is not under any
of these concepts, the crime is qualified theft.

no confidence, not qualified theft

theft material possession estafa juridical possession

Where only the material possession is transferred, conversion of the property

gives rise to the crime of theft. Where both the material and juridical
possession is transferred, misappropriation of the property would constitute
estafa. When the material and juridical possession of the thing transfers
ownership of the property to the possessor, any misappropriation made by
the possessor will not result in the commission of any crime, either for theft
of estafa.

Qualified: if done by one who has access to place where stolen property is kept e.g.,
guards, tellers

novation theory applies only if theres a relation

industrial partner is not liable for QT (estafa)

when accused considered the deed of sale as sham (modus) and he had intent to gain,
his absconding is QT

motor vehicle in kabit system sold to another-theft. Motor vehicle not used as PU in kabit
system but under K of lease-estafa

On carnapping and theft of motor vehicle

When the subject is motor vehicle, the Theft becomes qualified. Under R.A. 6539, Anti-
Carnapping Act of 1972, the term motor vehicle includes, within its protection, any vehicle which
uses the streets, with or without the required license, or any vehicle which is motorized using the
streets, such as a motorized tricycle. (Izon vs. People, 107 SCRA 123)

The taking with intent to gain of a motor vehicle belonging to another, without the latters consent,
or by means of violence or intimidation of persons, or by using force upon things is penalized as
carnapping under Republic Act No. 6539 (An Act Preventing and Penalizing Carnapping), as
amended. The overt act which is being punished under this law as carnapping is also the taking
of a motor vehicle under circumstances of theft or robbery. If the motor vehicle was not taken by
the offender but was delivered by the owner or the possessor to the offender, who thereafter
misappropriated the same, the crime is either qualified theft under Article 310 of the Revised

Penal Code or estafa under Article 315 (b) of the Revised Penal Code. Qualified theft of a motor
vehicle is the crime if only the material or physical possession was yielded to the offender;
otherwise, if juridical possession was also yielded, the crime is estafa.

mail matter private mail to be QT, Not postmaster Art. 226

theft of large cattle

Article 311

THEFT OF PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL

MUSEUM
243

USURPATION

Article 312

OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN

PROPERTY

Acts punished:

Taking possession of any real property belonging to another by means of

violence against or intimidation of persons;

Usurping any real rights in property belonging to another by means of violence

against or intimidation of persons.

ELEMENTS:

That the offender takes possession of any real property or usurps any real rights in property.

That the real property or real rights belong to another.

That violence against or intimidation of persons is used by the offender in occupying real
property or usurpation real rights in property.

That there is intent to gain.

Since this is a crime against property, there must be intent to gain. In the absence of the
intent to gain, the act may constitute Coercion.

Use the degree of intimidation to determine the degree of the penalty to be applied for the
usurpation.
Usurpation under Article 312 is committed in the same way as robbery with violence or
intimidation of persons. The main difference is that in robbery, personal property is involved; while
in usurpation of real rights, it is real property. (People v. Judge Alfeche, July 23, 1992)

The possession of the land or real rights must be done by means of violence
or intimidation. So, if the evidence of the prosecution shows that the accused
entered the premises by means of strategy, stealth or methods other than
the employment of violence, no crime was committed by the offender. (People
vs. Alfeche, Jr., 211 SCRA 770)

Usurpation of real rights and property should not be complexed using Article 48 when violence or
intimidation is committed. There is only a single crime, but a two-tiered penalty is prescribed to be
determined on whether the acts of violence used is akin to that in robbery in Article 294, grave
threats or grave coercion and an incremental penalty of fine based on the value of the gain
obtained by the offender.

There is no crime of threat and usurpation of real property since threat is an

indispensable element of usurpation of real rights. Hence, where threats are
uttered to the owner of real property by one illegally occupying it, the crime
committed is not the complex crime of usurpation of real property with grave
threats because making a threat is an inherent element of usurpation of real
property. (Castrodes vs. Cubelo, 83 SCRA 670)

The complainant must be the person upon whom violence was employed. If a tenant was
occupying the property and he was threatened by the offender, but it was the owner who was not
244

in possession of the property who was named as the offended party, the same may be quashed
as it does not charge an offense. The owner would, at most, be entitled to civil recourse only.

On squatting

According to the Urban Development and Housing Act, the following are squatters:

Those who have the capacity or means to pay rent or for legitimate housing but are squatting
anyway;

Also the persons who were awarded lots but sold or lease them out;

Intruders of lands reserved for socialized housing, pre-empting possession by occupying the
same.

Note that violation of Article 312 is punishable only with fine. So, if physical
injuries are inflicted on the victim due to the violence employed by the
offender in the usurpation of real rights, the latter shall be punished
separately for the crime of physical injuries.

Violence employed results to the death of the offended party. When such
eventuality does occur, then the crime may rightfully be denominated as
usurpation of real rights resulting to homicide, murder, parricide, or
infanticide as the case may be.

Article 313

ALTERING BOUNDARIES OR LANDMARKS

ELEMENTS:

That there be boundary marks or monuments of towns, provinces, or estates, or any other
marks intended to designate the boundaries of the same.
That the offender alters said boundary marks.

CULPABLE INSOLVENCY

Article 314

FRAUDULENT INSOLVENCY (culpable insolvency)

ELEMENTS

That the offender is a debtor; that is, he was obligations due and payable.

That he absconds with his property.

That there be prejudice to his creditors.

To be liable for fraudulent insolvency, the disposal of the merchandise must

be done with malice. The mere circumstance that a person has disposed of
his merchandise by removing them from the place where they were kept
would necessarily imply fraud. What is required is actual prejudice to the
creditor. The intention of the accused alone is not enough. (People vs. Guzman,
C. A. 40 O. G. 2655)
245

The law does not require the offender to be a merchant. The law says any
person, and this refers to anyone who becomes a debtor and performs the
acts made punishable by the law.

The property which the offender may abscond which consists of both real and
personal property. (People vs. Chong Chuy Lingobo, 45 Phil. 372)

The law on fraudulent insolvency is different from the Insolvency Law.

For the

Insolvency Law to apply, the criminal act must have been committed after
the institution of the insolvency proceedings against the offending debtor. But
under the present article, there is no requirement that the accused should be
adjudged bankrupt or insolvent.

SWINDLING AND OTHER DECEITS

Estafa is embezzlement under common law. It is a well-known crime to

lawyers and businessmen. It is a continuing crime unlike theft. Being a public
crime, it can be prosecuted de officio.

Article 315

A. ELEMENTS OF ESTAFA IN GENERAL : (315)

That the accused defrauded another (a.) by abuse of confidence, or (b) or means of deceit and

That damage or prejudice capable of pecuniary estimation is caused to the offended party or
third person

The concept of damage under this article does not mean actual or real
damage. It may consist in mere disturbance of the property rights of the
offended party. However, the damage must be capable of pecuniary
estimation. This requirement is important because in estafa, the penalty is
dependent on the value of the property.

Since estafa is a material crime, it can be divided into consummated,

attempted or frustrated stages. In the latter case, the damage can be in the
form of temporary prejudice or suffering, or inconvenience capable of
pecuniary estimation.

B. ELEMENTS OF ESTAFA WITH UNFAITHFULNESS: (315)

That the offender has an onerous obligation to deliver something of value.

That he alters its substance, quantity, or quality.

That damage or prejudice is caused to another.

The accused does not receive the goods but delivers a thing under an
onerous obligation which is not in accordance with the substance, quantity or
quality agreed upon. It is the altering of the substance, quality or quantity of
the thing delivered which makes the offender liable for the crime of estafa.
246

The word onerous means that the offended party has fully complied with
his obligations to pay. So, if the thing delivered whose substance was altered,
is not yet fully or partially paid, then the crime of estafa is not committed.

C. ELEMENTS OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER

SUBDIVISION NO.1 PAR. (B), OF ART.315

That money, goods, or other personal property be received by the offender in trust, or on
commission, or for administration, or under any other obligation involving the duty to make
delivery of or to return, the same.

That there be misappropriation or conversion of such money or property by the offender, or

dental on his part of such receipt.

that such misappropriation or conversion or dental is to the prejudice of another and

That there is a demand made by the offended party to the offender.

(The fourth element is not necessary when there is evidence of misappropriation of the goods by
the defendant. [Tubb v. People, et al., 101 Phil. 114] ).

It is necessary in this kind of estafa, for the money, goods or personal

property to have been received by the offender in trust, or on commission or
for administration. He must acquire both material or physical as well as
juridical possession of the thing received. In these instances, the offender,
who is the transferee, acquires a right over a thing which he may set up even
against the owner.

A money market transaction however partakes of the nature of a loan, and non-payment thereof
would not give rise to criminal liability for Estafa through misappropriation or conversion. In
money market placements, the unpaid investor should institute against the middleman or dealer,
before the ordinary courts, a simple action for recovery of the amount he had invested, and if
there is allegation of fraud, the proper forum would be the Securities and Exchange Commission.
(Sesbreno vs. Court of Appeals, et al., 240 SCRA 606).

ND
D. 2ELEMENT OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER
PARAGRAPH (B), SUBDIVISION N0.1, ART. 315 = 3 WAYS OF COMMITTING:

By misappropriating the thing received.

By converting the thing received.

By denying that the thing was received.

Notes:

Unfaithfulness or Abuse of Confidence

by altering the substance

existing obligation to deliver even if it is not a subject of lawful commerce

thing delivered has not been fully or partially paid for not estafa
247

no agreement as to quality No estafa if delivery is unsatisfactory

By misappropriating and converting

thing is received by offender under transactions transferring juridical possession, not

ownership

under PD 115 (Trust Receipts Law) failure to turn over to the bank the proceeds of the
sale of the goods covered by TR Estafa

same thing received must be returned otherwise estafa; sale on credit by agency when it
was to be sold for cash estafa

Estafa not affected by Novation of Contract because it is a public offense

Novation must take place before criminal liability was incurred or perhaps prior to the filing
of the criminal information in court by state prosecutors

Misappropriating to take something for ones own benefit

Converting act of using or disposing of anothers property as if it was ones own; thing
has been devoted for a purpose or use different from that agreed upon

There must be prejudice to another not necessary that offender should obtain gain

There is no estafa through negligence. There is likewise no estafa where the

accused did not personally profit or gain from the misappropriation .

Partners No estafa of money or property received for the partnership when the business
is commercial and profits accrued. BUT if property is received for specific purpose and is
misappropriated estafa!
Failure to account after the DEMAND is circumstantial evidence of misappropriation

DEMAND is not a condition precedent to existence of estafa when misappropriation may

be established by other proof

In theft, upon delivery of the thing to the offender, the owner expects an immediate return
of the thing to him otherwise, Estafa

Servant, domestic or employee who misappropriates a thing he received from his master
is NOT guilty of estafa but of qualified theft

When in the prosecution for malversation the public officer is acquitted, the private
individual allegedly in conspiracy with him may be held liable for estafa

ESTAFA WITH ABUSE OF CONFIDENCE

MALVERSATION

Offenders are entrusted with funds or

offenders are entrusted with funds or

property and are continuing offenses

property and are continuing offenses

Funds: always private

Funds: public funds or property

248

Offender: private individual, or public officer

Offender: public officer accountable for

not accountable

public funds

Committed by misappropriating, converting,

Committed by appropriating, taking,

denying having received money

misappropriating

E. ELEMENTS OF ESTAFA BY TAKING UNDUE ADVANTAGE OF THE

SIGNATURE IN BLANK: (315)

That the paper with the signature of the offended party be in blank.

That the offended party should have delivered it to offender.

That above the signature of the offended party a document is written by the offender without
authority to do so.

That the document so written creates a liability of, or causes damage to, the offended party or
any third person.

The element of this estafa is also abuse of confidence. The offended party
leaves a blank paper with his signature to another, with specific instructions to
make entries thereon according to the wishes of the offended party. But
contrary to such instructions and wishes, the accused makes entries in writing
which creates liabilities against the owner of the signature.

If the unauthorized writings were done by a person other than the one to
whom the owner of the signature delivered the paper in blank, and it caused
damage to the offended party, the crime committed by the third party is not
estafa but falsification.

Note: If the paper with signature in blank was stolen Falsification if by making it appear
that he participated in a transaction when in fact he did not so participate

F. ELEMENTS OF ESTAFA BY MEANS OF DECEIT: (315)

that there must be a false pretense, fraudulent means must be made or executed prior to or

That such false pretense, fraudulent act or fraudulent means must be made or executed prior to
or simultaneously with the commission of the fraud.

That the offended party must have relied on the false pretense, fraudulent act, or fraudulent
means, that is, he was induced to part with his money or property because of the false pretense,
fraudulent act, or fraudulent means.

That as a result thereof, the offended party suffered damage.

Notes:

False pretenses or fraudulent acts executed prior to or simultaneously with delivery of

the thing by the complainant

There must be evidence that the pretense of the accused that he possesses
power/influence is false
249

The representation that accused possessed influence, to deceive and inveigle the complainant into
parting with his money must however be false to constitute deceit under No. 2 of Article 315,
RPC. (Dela Cruz vs. Court of Appeals, et al., 265 SCRA 299).

Elements of estafa by means of false pretenses or fraudulent acts under Article 315 (2)

Acts punished under paragraph (a)

Using fictitious name;

Falsely pretending to possess power, influence, qualifications, property, credit, agency, business
or imaginary transactions; or

By means of other similar deceits.

In the prosecution of estafa under Article 315, no. 2(a), it is indispensable

that the element of deceit consisting in the false statement or fraudulent
representation of the accused, be made prior to, before or at least
simultaneously with the delivery of the thing by the offended party. The
added requirement that such false statement or fraudulent representation
constitutes the very motive or the only reason or cause which induces the
offended party to part with the thing while they may be false representation
after the delivery of the goods or the thing by the aggrieved party, such false
statement or false representation, no matter how fraudulent and obnoxious it
may appear, cannot serve as a basis for prosecution under this category of
estafa. For the case to prosper against the accused, the prosecution must
prove two indispensable elements: deceit and damage to another. (Celino vs.
Court of Appeals, 163 SCRA 97)

Credit means the ability to buy things or merchandise on the basis of ones
character, capacity to pay or goodwill in the business community. So, if it is
used to deceive another and the deception is the principal reason for the
delivery of the goods which results in damage to the offended party, the
crime committed is estafa.

Under paragraph (b)

Altering the quality, fineness, or weight of anything pertaining to his art or business.

Under paragraph (c)

Pretending to have bribed any government employee, without prejudice to the action for calumny
which the offended party may deem proper to bring against the offender.

G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A

CHECK IN PAYMENT OF AN OBLIGATION: (315)

That the offender postdated a check, or issued a check in payment of an obligation.

That such postdatig or issuing a check was done when the offender had no funds in the bank
or his funds deposited therein were not sufficient to cover the amount of the check.

Notes:

Note that this only applies if

250

The obligation is not pre-existing;

The check is drawn to enter into an obligation;

(Remember that it is the check that is supposed to be the sole consideration for the other party to
have entered into the obligation. For example, Rose wants to purchase a bracelet and draws a
check without insufficient funds. The jeweler sells her the bracelet solely because of the
consideration in the check.)

It does not cover checks where the purpose of drawing the check is to guarantee a loan as this is
not an obligation contemplated in this paragraph

The check must be genuine. If the check is falsified and is cashed with the bank or exchanged for
cash, the crime is estafa thru falsification of a commercial document.

The general rule is that the accused must be able to obtain something from the offended party
by means of the check he issued and delivered. Exception: when the check is issued not in
payment of an obligation.

It must not be promissory notes, or guaranties.

good faith is a defense. (PP. VS. VILLAPANDO, 56 PHIL.31)

dishonor for lack of funds - prima facie evidence of deceit or failure to make good within
three days after notice of.

If the checks were issued by the defendant and he received money for them, then stopped
payment and did not return the money, and he had an intention to stop payment when he issued
the check, there is estafa.

Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within
three days from receipt of notice of dishonor or insufficiency of funds in the bank.

3. If check was issued in payment of pre-existing debt no estafa

It is therefore essential that the check be issued in payment of a
simultaneous obligation. The check in question must be utilized by the
offender in order to defraud the offended party. So, if the check was issued in
payment of a promissory note which had matured and the check was
dishonored, there is not estafa since the accused did not obtain anything by
means of said check. (People vs. Canlas, O. G. 1092)

If a bouncing check is issued to pay a pre-existing obligation, the drawer is

liable under

B. P. Blg. 22 which does not make any distinction as to whether a bad check
is issued in payment of an obligation or to guarantee an obligation. (Que vs.
People, 73217-18, Sept.

21, 1987)

Offender must be able to obtain something from the offended party by means of the
check he issues and delivers

The check must be issued in payment of an obligation. If the check was

issued without any obligation or if there is lack of consideration and the check
is subsequently dishonored, the crime of estafa is not committed.

5. If postdating a check issued as mere guarantee/promissory note no estafa

251

H. ELEMENTS OF OFFENSE DEFINED IN THE FIRST PARAGRAPH OF

SECTION 1: BP 22

That a person makes or draws and issues any check.

That the check is made or drawn and issued to apply on account or for value.

That the person who makes or draws and issues the check knows at the time of issue that he
does not have sufficient funds in or credit with the drawee bank for the payment of such check
in full upon its presentment.

That the check is subsequently dishonored by the drawee bank for insufficiency of funds or
credit, or would have been dishonored for the same reason had not the drawee, without any
valid reason, ordered the bank to stop payment.

Note: Failure to make good within 5 banking days prima facie evidence of knowledge of
lack and insufficiency

I. ELEMENTS OF THE OFFENSE DEFINED IN THE SECOND PARAGRAPH

OF SECTION 1: BP 22

That a person has sufficient funds in or credit with the drawee bank when he makes or draws
and issues a check.

That he fails 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 appearing thereon.

That the check is dishonored by the drawee bank.

Note: Failure to make good within 5 banking days prima facie evididence of knowledge
of lack and insufficiency

Distinction between estafa under Article 315 (2) (d) of the Revised Penal Code and
violation of Batas Pambansa Blg. 22:
Under both Article 315 (2) (d) and Batas Pambansa Blg. 22, there is criminal liability if the check
is drawn for non-pre-existing obligation.

If the check is drawn for a pre-existing obligation, there is criminal liability only under Batas
Pambansa Blg. 22.

Estafa under Article 315 (2) (d) is a crime against property while Batas Pambansa Blg. 22 is a
crime against public interest. The gravamen for the former is the deceit employed, while in the
latter, it is the issuance of the check. Hence, there is no double jeopardy.

In the estafa under Article 315 (2) (d), deceit and damage are material, while in Batas Pambansa
Blg. 22, they are immaterial.

In estafa under Article 315 (2) (d), knowledge by the drawer of insufficient funds is not required,
while in Batas Pambansa Blg. 22, knowledge by the drawer of insufficient funds is reqired.

When is there prima facie evidence of knowledge of insufficient funds?

252

There is a prima facie evidence of knowledge of insufficient funds when the check was presented
within 90 days from the date appearing on the check and was dishonored.

Exceptions

When the check was presented after 90 days from date;

When the maker or drawer --

Pays the holder of the check the amount due within five banking days after receiving notice that
such check has not been paid by the drawee;

Makes arrangements for payment in full by the drawee of such check within five banking days
after notice of non-payment

The drawee must cause to be written or stamped in plain language the reason for the dishonor.

If the drawee bank received an order of stop-payment from the drawer with no reason, it must be
stated that the funds are insufficient to be prosecuted here.

If the drawer has valid reasons for stopping payment, he cannot be held
criminally liable under B.P. Blg. 22.

The unpaid or dishonored check with the stamped information re: refusal to pay is prima facie
evidence of (1) the making or issuance of the check; (2) the due presentment to the drawee for
payment & the dishonor thereof; and (3) the fact that the check was properly dishonored for the
reason stamped on the check.

On issuance of a bouncing check

The issuance of check with insufficient funds may be held liable for estafa and Batas Pambansa
Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecution under said law is without
prejudice to any liability for violation of any provision in the Revised Penal Code. Double
Jeopardy may not be invoked because a violation of Batas Pambansa Blg. 22 is a malum
prohibitum and is being punished as a crime against the public interest for undermining the
banking system of the country, while under the Revised Penal Code, the crime is malum in se
which requires criminal intent and damage to the payee and is a crime against property.
In estafa, the check must have been issued as a reciprocal consideration for parting of goods
(kaliwaan). There must be concomitance. The deceit must be prior to or simultaneous with
damage done, that is, seller relied on check to part with goods. If it is issued after parting with
goods as in credit accommodation only, there is no estafa. If the check is issued for a pre-existing
obligation, there is no estafa as damage had already been done. The drawer is liable under Batas
Pambansa Blg. 22.

For criminal liability to attach under Batas Pambansa Blg. 22, it is enough that the check was
issued to "apply on account or for value" and upon its presentment it was dishonored by the
drawee bank for insufficiency of funds, provided that the drawer had been notified of the dishonor
and inspite of such notice fails to pay the holder of the check the full amount due thereon within
five days from notice.

Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and given five
banking days from notice within which to deposit or pay the amount stated in the check to negate
the presumtion that drawer knew of the insufficiency. After this period, it is conclusive that drawer
knew of the insufficiency, thus there is no more defense to the prosecution under Batas
Pambansa Blg. 22.

The mere issuance of any kind of check regardless of the intent of the parties, whether the check
is intended to serve merely as a guarantee or as a deposit, makes the drawer liable under Batas
253

Pambansa Blg. 22 if the check bounces. As a matter of public policy, the issuance of a worthless
check is a public nuisance and must be abated.

Each act of drawing and issuing a bouncing check constitutes a violation of B.

P. Blg. 22.

In De Villa v. CA, decided April 18, 1991, it was held that under Batas Pambansa Blg. 22, there
is no distinction as to the kind of check issued. As long as it is delivered within Philippine territory,
the Philippine courts have jurisdiction. Even if the check is only presented to and dishonored in a
Philippine bank, Batas Pambansa Blg. 22 applies. This is true in the case of dollar or foreign
currency checks. Where the law makes no distinction, none should be made.

In People v. Nitafan, it was held that as long as instrument is a check under the negotiable
instrument law, it is covered by Batas Pambansa Blg. 22. A memorandum check is not a
promissory note, it is a check which have the word memo, mem, memorandum written
across the face of the check which signifies that if the holder upon maturity of the check presents
the same to the drawer, it will be paid absolutely. But there is no prohibition against drawer from
depositing memorandum check in a bank. Whatever be the agreement of the parties in respect of
the issuance of a check is inconsequential to a violation to Batas Pambansa Blg. 22 where the
check bounces.

Cross checks do not make them non-negotiable and therefore they are within
the coverage of B. P. Blg. 22.

The law does not distinguish between foreign and local checks. (De Villa vs. Court of Appeals, et
al., 195 SCRA 722).

But overdraft or credit arrangement may be allowed by banks as to their preferred clients and

Batas Pambansa Blg. 22 does not apply. If check bounces, it is because bank has been remiss in
honoring agreement.

The check must be presented for payment within a 90-day period. If presented for payment
beyond the 90 day period and the drawers funds are insufficient to cover it, there is no Batas

Pambansa Blg. 22 violation.

Where check was issued prior to August 8, 1984, when Circular No. 12 of the Department of the
Justice took effect, and the drawer relied on the then prevailing Circular No. 4 of the Ministry of
Justice to the effect that checks issued as part of an arrangement/agreement of the parties to
guarantee or secure fulfillment of an obligation are not covered by Batas Pambansa Blg. 22, no
criminal liability should be incurred by the drawer. Circular should not be given retroactive effect.
(Lazaro v. CA, November 11, 1993, citing People v. Alberto, October 28, 1993)

J. BY OBTAINING FOOD OR CREDIT AT HOTELS, INNS, RESTAURANTS

ETC.

Acts punished under paragraph (e)

a. Obtaining food, refreshment, or accommodation at a hotel, inn, restaurant, boarding house,

lodging house, or apartment house;

Without paying therefor;

With intent to defraud the proprietor or manager.

2.

a.

Obtaining credit

at

any of the establishments;

254

b. Using false pretense;

a. Abandoning or

surreptitiously removing any part of his baggage in the establishment;

After obtaining credit, food, refreshment, accommodation;

Without paying.

Failure to pay food or accommodation in a hotel, restaurant or inn usually gives rise to civil
liability but if the intent to defraud is clear like a surreptitious removal of baggage from the hotel,
or resorting to deceitful means to evade payment, the act shall be punished criminally as Estafa.

K. ELEMENTS OF ESTAFA BY INDUCING ANOTHER TO SIGN ANY

DOCUMENTS: (315)

That the offender induced the offended party to sign a document.

That deceit be employed to make him sign the document.

That the offended party personally signed the document.

That prejudice be caused.

Note: If offended party willingly signed the document and there was deceit as to the
character or contents of the document falsification; but where the accused made
representation to mislead the complainants as to the character of the documents -
estafa
Under paragraph (b)

Resorting to some fraudulent practice to insure success in a gambling game;

L. ELEMENTS OF ESTAFA BY REMOVING, CONCEALING OR DESTROYING

DOCUMENTS: (315)

That there be court records, office files, documents or any other papers.

That the offender removed, concealed or destroyed any of them.

That the offender had intent to defraud another.

In order to commit a crime, the offender must have the intention to defraud.
In other words, the removal, concealment or destruction of the court record
should be done with the intent to defraud the victim. This is distinguished
from the crime of removal, concealment or destruction of documents under
Article 226 wherein fraud is not an element of the crime, and which is
committed only by public officers. What is punished under this Article is the
damage to public interest.

If the act of removing, concealing or destroying results from hatred, revenge,

or other evil motive, the crime committed is malicious mischief under Article
327.

Note: No intent to defraud destroying or removal = malicious mischief

255

When a lawyer, pretending to verify a certain pleading in a case pending before a court, borrows
the folder of the case, and removes or destroys a document which constitute evidence in the said
case, said lawyer is guilty of Estafa under par. 3 (c) of Article 315, RPC.

Syndicated Estafa.

A syndicate of five or more persons formed with intent to carry out an unlawful
or illegal act, transaction or scheme and defraudation which results in
misappropriation of money contributed by stockholders or members of rural
banks, cooperatives, samahang nayon or formers association; or funds
contributed by corporations or associations for the general welfare.

M. DAMAGE OR PREJUDICE CAPABLE OF PECUNIARY ESTIMATION : (315)

(second element of any form of estafa)

THE ELEMENTS OF DAMAGE OR PREJUDICE MAY CONSIST OF THE FF.:

The offender party being deprived of his money or property, as a result of the defraudation.

Disturbance in property right or

Temporary prejudice.

N. ELEMENTS OF SWINDLING (PAR.1) BY CONVEYING, SELLING,

ENCUMBERING, OR MORTGAGING ANY REAL PROPERTY, PRETENDING
TO BE THE OWNER OF THE SAME: (316)

That the thing be immovable, such as a parcel of land or a building.

That the offender who is not the owner of said property represented that he is the owner thereof.

That the offender should have executed an act of ownership (selling, leasing, encumbering or
mortgaging the real property).

That the act be made to the prejudice of the owner or a third person.

ESTAFA

INFIDELITY IN THE CUSTODY OF DOCUMENTS

Private individual was entrusted

Public officer entrusted

Intent to defraud

No intent to defraud

O. ELEMENTS OF SWINDLING (PAR. 2) BY DISPOSING OF REAL PROPERTY

AS FREE FROM ENCUMBRANCE, ALTHOUGH SUCH ENCUMBRANCE BE
NOT RECORDED: (316)

that the thing disposed of be real property.

That the offender knew that the real property was encumbered, whether the encumbrance is
recorded or not.
256

That there must be express representation by the offender that the real property is free from
encumbrance.

That the act of disposing of the real property be made to the damage of another.

In Saddul Jr. v. CA, 192 SCRA 277, it was held that the act of using or disposing of anothers
property as if it were ones own, or of devoting it to a purpose or use different from that agreed
upon, is a misappropriation and conversion to the prejudice of the owner. Conversion is
unauthorized assumption an exercise of the right of ownership over goods and chattels belonging
to another, resulting in the alteration of their condition or exclusion of the owners rights.

P. ELEMENTS OF SWINDLING (PAR.3) BY WRONGFULLY TAKING BY THE

OWNER HIS PERSONAL FROM ITS LAWFUL POSSESSOR: (316)

That the offender is the owner of personal property.

That said personal property is in the lawful possession of another.

That the offender wrongfully takes it from its lawful possessor.

That prejudice is thereby caused to the possessor or third person.

Under paragraph 4 by executing any fictitious contract to the prejudice of another

Under paragraph 5 by accepting any compensation for services not rendered or for labor not
performed
Q. ELEMENTS OF SWINDLING (PAR. 6) BY SELLING, MORTGAGING OR
ENCUMBERING REAL PROPERTY OR PROPERTIES WITH WHICH THE
OFFENDER GUARANTEED THE FULFILLMENT OF HIS OBLIGATION AS
SURETY: (316)

That the offender is a surety in a bond given in a criminal or civil action.

That he guaranteed the fulfillment of such obligation with his real property or properties.

That he sells, mortgages, or, in any other manner encumbers said real property.

That such sale, mortage or encumbrance is (a) without express authority from the court, or

made before the cancellation of his bond, or (c) before being relieved from the obligation
contracted by him.

R. ELEMENTS OF SWINDLING A MINOR: (317)

That the offender takes advantage of the inexperience or emotions or feelings of a minor.

That he induces such minor (a) to assume an obligation, or (b) to give release, or (c) to execute
a transfer of any property right.
257

That the consideration is (a) some loan of money (b) credit or (c) other personal property.

That the transaction is to the detriment of such minor.

The property referred to in this article is not real property. It is limited to

personal property since a minor cannot convey real property without judicial
intervention. So, if what is involved is real property, the crime of swindling a
minor under this article is not committed even if the offender succeeds in
inducing the minor to deal with such real property since no damage or
detriment is caused against the minor.

S. ELEMENTS OF OTHER DECEITS: (318)

not mentioned above;

interpretation of dreams, forecast, future-telling for profit or gain.

The meaning of other deceits under this article has reference to a situation
wherein fraud or damage is done to another by any other form of deception
which is not covered by the preceding articles.

Another form of deceit would be in the nature of interpreting dreams, or

making forecasts, telling fortunes or simply by taking advantage of the
credulity of the public by any other similar manner, done for profit or gain.

CHATTEL MORTGAGE

Article 319
A. SELLING OR PLEDGING PERSONAL PROPERTY ALREADY PLEDGED

ELEMENTS:

That personal property is already pledged under the terms of the chattel mortgage law.

That the offender, who is the mortgagee of such property, sells or pledges the same or any part
thereof.

That there is no consent of the mortgagee written on the back of the mortgage and noted on
the record thereof in the office of the register of deeds.

B. KNOWINGLY REMOVING MORTGAGED PERSONAL PROPERTY

ELEMENTS:

that personal property is mortgaged under the chattel mortage law.

That the offender knows that such property is so mortaged.

That he removes such mortgaged personal to any province or city other than the one in which
it was located at the time of the execution of the mortgage.

that the removal is permanent.

258

That there is no written consent of the mortgagee or his executors, administration or assigns to
such removal.

It would be the mortgagor who is made liable if the personal property is

transferred to the prohibited place. The liability extends to third persons who
shall knowingly remove the mortgaged to another city or province.

If the chattel mortgage is not registered, there is no violation of Article 319

ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS

(Note: PD 1613 expressly repealed or amended Arts 320-326, but PD 1744 revived Art 320)

A. ELEMENTS OF ARSONS OF PROPERTY OF SMALL VALUES

That an uninhabited hut, storehouse, barn, shed or any other property is burned

That the value of the property burned does not exceed 25 pesos

That the burning was done at a time or under circumstances which clearly exclude all danger
of the fire spreading

B. ELEMENTS OF CRIME INVOLVING DESTRUCTION

That the offender causes destruction of the property

That the destruction was done by means of:

explosion

discharge of electric current

inundation

sinking or stranding of a vessel

damaging the engine of the vessel

taking up rails from the railway track

destroying telegraph wires and posts or those of any other system

other similar effective means of destruction

ELEMENTS OF BURNING ONES PROPERTY AS A MEANS TO COMMIT

ARSON

1. That the offender set fire to or destroyed his own property

259

That the purpose of the offender in doing so was to commit arson or to cause a great
destruction

That the property belonging to another was burned or destroyed

D. ELEMENTS OF ARSON

That the property burned is the exclusive property of the offender

That (a) the purpose of the offender is burning it is to defraud or cause damage to another or
(b) prejudice is actually caused, or (c) the thing burned is a building in an inhabited place

Palattao notes:

Arson is defined as the intentional or malicious destruction of a property by

fire.

Legal effect if death results from arson.

The crime committed is still arson. Death is absorbed in the crime of arson
but the penalty to be imposed ranges from reclusion perpetua to death. (Sec.
5, P.D. No. 1613)

How arson is established.

Arson is established by proving the corpus delicti, usually in the form of

circumstancial evidence such as the criminal agency, meaning the substance
used, like gasoline, kerosene or other form of bustible materials which caused
the fire. It can also be in the form of electrical wires, mechanical, chemical or
electronic contrivance designed to start a fire; ashes or traces of such objects
which are found in the ruins of the burned premises.
Notes:

If the crime of arson was employed by the offender as a means to kill the
offended party, the crime committed is murder. The burning of the property
as the means to kill the victim is what is contemplated by the word fire
under Article 248 which qualifies the crime to murder. (People vs. Villarosa, 54 O.
G. 3482)

When the burning of the property was done by the offender only to cause
damage but the arson resulted to death of a person, the crime committed is
still arson because the death of the victim is a mere consequence and not the
intention of the offender.

(People vs. Paterno, 47 O. G. 4600)

There is no special complex crime of arson with homicide. What matters in

resolving cases involving intentional arson is the criminal intent of the
offender.

There is such a crime as reckless imprudence resulting in the commission of

arson. When the arson results from reckless imprudence and it leads to
death, serious physical injuries and damage to the property of another, the
penalty to be imposed shall not be for the crime of arson under P. D. No. 1613
but rather, the penalty shall
260

be based on Article 365 of the Revised Penal Code as a felony committed by

means of culpa.

MALICIOUS MISCHIEF

Article 326

MALICIOUS MISCHIEF

ELEMENTS:

That the offender deliberately caused damage to the property of another.

That such act does not constitute arson or other crimes involving destruction.

That the act damaging anothers property be committed merely for the sake of damaging it.

Notes:

Malicious mischief willful damaging of anothers property for the sake of causing
damage due to hate, revenge or other evil motive

No negligence

Example. Killing the cow as revenge

If no malice only civil liability

Meaning of damage in malicious mischief.

It means not only loss but a diminution of the value of ones property. It
includes defacing, deforming or rendering it useless for the purpose for which
it was made.

5. But after damaging the thing, he used it = theft

There is destruction of the property of another but there is no misappropriation. Otherwise, it

would be theft if he gathers the effects of destruction.

6. Damage is not incident of a crime (breaking windows in robbery)

Article 328

SPECIAL CASES OF MALICIOUS MISCHIEF

Obstruct performance of public functions.

Using poisonous or corrosive substances.

Spreading infection or contagious among cattle.

Damage to property of national museum or library, archive, registry, waterworks, road,

promenade, or any other thing used in common by the public.
261

The cases of malicious mischief enumerated in this article are so-called

qualified malicious mischief. The crime becomes qualified either because
of the nature of the damage caused to obstruct a public; or because of the
kind of substance used to cause the damage. The crime is still malicious
mischief because the offender has no intent to gain but derives satisfaction
from the act because of hate, revenge or other evil motive.

Note: Qualified malicious mischief no uprising or sedition (#1)

Article 329

OTHER MISCHIEF

ELEMENTS:

Not included in 328

scattering human excrement

killing of cow as an act of revenge

The offender is punished according to the value of the damage caused to the
offended party. If the damages cannot be estimated, the minimum penalty is
arresto menor or a fine of not more than 200 pesos shall be imposed on the
offender.

Article 330

DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION

done by damaging railways, telegraph, telephone lines, electric wires, traction cables, signal
system of railways
Notes:

removing rails from tracks is destruction (art 324)

not applicable when telegraph/phone lines dont pertain to railways (example: for
transmission of electric power/light)

people killed as a result:

murder if derailment is means of intent to kill

none art 48

If the damage was intended to cause derailment only without any intention to
kill, it will be a crime involving destruction under Article 324. If the derailment
is intentionally done to cause the death of a person, the crime committed will
be murder under Article 248.

circumstance qualifying the offense if the damage shall result in any derailment of cars,
collision or other accident a higher penalty shall be imposed

Article 331

DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR

PAINTINGS

Article 332

EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY

262

Persons exempt from criminal liability

Spouse, ascendants and descendants or relatives by affinity in the same line

The widowed spouse with respect to the property w/c belonged to the deceased spouse before
the same passed into the possession of another

Brothers and sisters and brothers-in-law and sisters-in-law, if living together

Offenses involved in the exemption

Theft ( not robbery )

Swindling

Malicious mischief

Notes:

1. Exemption is based on family relations

For the exemption to apply insofar as brothers and sisters, and brothers-in-
law and sisters-in-law are concerned, they must be living together at the time
of the commission of the crime of theft, estafa or malicious mischief.

Parties to the crime not related to the offended party still remains criminally liable

Persons exempt include:

stepfather/mother (ascendants by affinity)

adopted children (descendants)

concubine/paramour (spouse)

common law spouse (property is part of their earnings)

Only the relatives enumerated incur no liability if the crime relates to theft (not robbery), swindling,
and malicious mischief. Third parties who participate are not exempt. The relationship between
the spouses is not limited to legally married couples; the provision applies to live-in partners.

Estafa should not be complexed with any other crime in order for exemption to operate.

TITLE ELEVEN

CRIMES AGAINST CHASTITY

Crimes against chastity

Adultery (Art. 333);

Concubinage (Art. 334);

Acts of lasciviousness (Art. 336);

263

Qualified seduction (Art. 337);

Simple seduction (Art. 338);

Acts of lasciviousness with the consent of the offended party (Art. 339);

Corruption of minors (Art. 340);

White slave trade (Art. 341);

Forcible abduction (Art. 342);

Consented abduction (Art. 343).

The crimes of adultery, concubinage, seduction, abduction and acts of lasciviousness are the so-
called private crimes. They cannot be prosecuted except upon the complaint initiated by the
offended party. The law regards the privacy of the offended party here as more important than the
disturbance to the order of society. For the law gives the offended party the preference whether to
sue or not to sue. But the moment the offended party has initiated the criminal complaint, the
public prosecutor will take over and continue with prosecution of the offender.

That is why under Article 344, if the offended party pardons the offender, that pardon will only be
valid if it comes before the prosecution starts. The moment the prosecution starts, the crime has
already become public and it is beyond the offended party to pardon the offender.

Article 333

ADULTERY

ELEMENTS:

That the woman is married (even if marriage subsequently declared void)

That she has sexual intercourse with a man not her husband.

That as regards the man with whom she has sexual intercourses, he must know her to be
married.

Notes:

There are two reasons why adultery is made punishable by law.

Primarily, it is a violation of the marital vow and secondarily, it paves the way
to the introduction of a spurious child into the family.

Adultery is a crime not only of the married woman but also of the man who had intercourse with a
married woman knowing her to be married. Even if the man proves later on that he does not know
the woman to be married, at the beginning, he must still be included in the complaint or
information. This is so because whether he knows the woman to be married or not is a matter of
defense and its up to him to ventilate that in formal investigations or a formal trial.

If after preliminary investigation, the public prosecutor is convinced that the man did not know that
the woman is married, then he could simply file the case against the woman.

The acquittal of the woman does not necessarily result in the acquittal of her co-accused.

In order to constitute adultery, there must be a joint physical act. Joint criminal intent is not
necessary. Although the criminal intent may exist in the mind of one of the parties to the physical
act, there may be no such intent in the mind of the other party. One may be guilty of the criminal
intent, the other innocent, and yet the joint physical act necessary to constitute the adultery may
264

be complete. So, if the man had no knowledge that the woman was married, he would be
innocent insofar as the crime of adultery is concerned but the woman would still be guilty; the
former would have to be acquitted and the latter found guilty, although they were tried together.

A husband committing concubinage may be required to support his wife committing adultery
under the rule in pari delicto.

For adultery to exist, there must be a marriage although it be subsequently annulled. There is no
adultery, if the marriage is void from the beginning.

Adultery is an instantaneous crime which is consummated and completed at the moment of the
carnal union. Each sexual intercourse constitutes a crime of adultery. Adultery is not a continuing
crime unlike concubinage.

Illustration:

Madamme X is a married woman residing in Pasay City. He met a man, Y, at Roxas Boulevard.
She agreed to go with to Baguio City, supposedly to come back the next day. When they were in
Bulacan, they stayed in a motel, having sexual intercourse there. After that, they proceeded again
and stopped at Dagupan City, where they went to a motel and had sexual intercourse.

There are two counts of adultery committed in this instance: one adultery in Bulacan, and another
adultery in Dagupan City. Even if it involves the same man, each intercourse is a separate crime
of adultery.

mitigated if wife was abandoned without justification by the offended spouse (man is
entitled to this mitigating circumstance)

Abandonment without justification is not exempting but only a mitigating

circumstance.

One who invokes abandonment in the crime of adultery hypothetically admits

criminal liability for the crime charged. (U. S. vs. Serrano, et al., 28 Phil. 230)

While abandonment is peculiar only to the accused who is related to the

offended party and must be considered only as to her or him as provided
under Article 62, paragraph 3, nonetheless, judicially speaking, in the crime
of adultery, there is only one act committed and consequently both accused
are entitled to this mitigating circumstance.

(People vs. Avelino, 40 O.G. Supp. 11, 194)

2. attempted: caught disrobing a lover

There is no frustrated adultery because of the nature of the offense.

In the case of People vs. Pontio Guinucud, et al., (58 Phil. 621), a private
agreement was entered into between the husband and wife for them to
separate from bed and board and for each of them to go for his and her own
separate way. Thereafter, the wife Rosario Tagayum lived with her co-accused
Pontio Guinucud in a nearby barangay. Their love affair ultimately embroiled
the spouses conservative and reputable families in a human drama exposed
in legal battles and whispers of unwanted gossips. In dismissing the
complaint, the Court ruled that while a private agreement between the
husband and wife was null and void, the same was admissible proof of the
express consent given by the condescending husband to the prodigal wife, a
license for her to commit adultery.

Such agreement bars the husband from instituting a criminal complaint for
adultery.

After filing the complaint for adultery and while the case is pending trial and
resolution by the trial court, the offended spouse must not have sexual
intercourse with the
265

adulterous wife since an act of intercourse subsequent to the adulterous

conduct is considered as implied pardon. (People vs. Muguerza, et al., 13 C.A. Rep.
1079)

It is seldom the case that adultery is established by direct evidence. The legal
tenet has been and still is circumstancial and corroborative evidence as will
lead the guarded discretion of a reasonable and just man to the conclusion
that the criminal act of adultery has been committed will bring about
conviction for the crime. (U. S. vs.

Feliciano, 36 Phil. 753)

Article 334

CONCUBINAGE

ELEMENTS:

That the man must be married.

That he committed any of the following acts:

Keeping a mistress in the conjugal dwelling.

Having sexual intercourse under scandalous circumstances with a woman who is not his wife.

Cohabiting with her in any other place.

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

Note: Scandal consists in any reprehensible word/deed that offends public
conscience, redounds to the detriment of the feelings of honest persons and gives
occasions to the neighbors spiritual damage and ruin

With respect to concubinage the same principle applies: only the offended spouse can bring the
prosecution. This is a crime committed by the married man, the husband. Similarly, it includes the
woman who had a relationship with the married man.

It has been asked why the penalty for adultery is higher than concubinage when both crimes are
infidelities to the marital vows. The reason given for this is that when the wife commits adultery,
there is a probability that she will bring a stranger into the family. If the husband commits
concubinage, this probability does not arise because the mother of the child will always carry the
child with her. So even if the husband brings with him the child, it is clearly known that the child is
a stranger. Not in the case of a married woman who may bring a child to the family under the
guise of a legitimate child. This is the reason why in the former crime the penalty is higher than
the latter.

Unlike adultery, concubinage is a continuing crime.

If the charges consist in keeping a mistress in the conjugal dwelling, there is no need for proof of
sexual intercourse. The conjugal dwelling is the house of the spouse even if the wife happens to
be temporarily absent therefrom. The woman however must be brought into the conjugal house
by the accused husband as a concubine to fall under this article. Thus, if the co-accused was
voluntarily taken and sheltered by the spouses in their house and treated as an adopted child being
a relative of the complaining wife, her illicit relations with the accused husband does not make
her a mistress. (People vs. Hilao, et al., (C.A.) 52 O.G. 904).
266

It is only when a married man has sexual intercourse with a woman

elsewhere that

scandalous circumstances becomes an element of crime.

For the existence of the crime of concubinage by having sexual intercourse under
scandalous circumstances, the latter must be imprudent and wanton as to offend
modesty and sense of morality and decency.

When spies are employed to chronicle the activities of the accused and the
evidence presented to prove scandalous circumstances are those taken by
the detectives, it is obvious that the sexual intercourse done by the offenders
was not under scandalous circumstances. (U.S. vs. Campos-Rueda, 35 Phil. 51)

Causal sexual intercourse with a woman in a hotel is not concubinage.

Likewise, keeping of a mistress in a townhouse procured and furnished by a
married man who does not live or sleep with her in said townhouse does not
constitute concubinage since there is no cohabitation.

The rule is that, if a married mans conduct with a woman who is not his wife was not confined to
occasional or transient interview for carnal intercourse but is carried n in the manner of husband
and wife and for some period of time, then such association is sufficient to constitute
cohabitation. (People vs. Zuniga, CA 57 O.G. 2497)

If the evidence of the prosecution consists of a marriage contract between

the offender and the offended party, and the additional fact of the birth
certificate of a child showing the accused to be the father of the child with
the alleged cocubine, the same will not be sufficient to convict the accused of
concubinage since the law clearly states that the act must be one of those
provided by law.

Article 335. Rape

This has been repealed by Republic Act No. 8353 or the Anti-Rape Law of 1997. See

Article 266-A.
Article 336

ACTS OF LASCIVIOUSNESS

ELEMENTS:

That the offender commits any act of lasciviousness or lewdness.

That it is done under any of the following circumstances:

by using force or intimidation, or

when the offended party is deprived of reason or otherwise unconscious, or

when the offended party is under 12 years of age.

That the offended party is another person of either sex.

Note that there are two kinds of acts of lasciviousness under the Revised Penal Code: (1) under
Article 336, and (2) under Article 339.
267

Article 336. Acts of Lasciviousness

Under this article, the offended party may be a man or a woman. The crime committed, when the
act performed with lewd design was perpetrated under circumstances which would have brought
about the crime of rape if sexual intercourse was effected, is acts of lasciviousness under this
article. This means that the offended party is either

under 12 years of age; or

being over 12 years of age, the lascivious acts were committed on him or her through violence or
intimidation, or while the offender party was deprived of reason, or otherwise unconscious.

Article 339. Acts of Lasciviousness with the Consent of the Offended Party:

Under this article, the victim is limited only to a woman. The circumstances under which the
lascivious acts were committed must be that of qualified seduction or simple seduction, that is,
the offender took advantage of his position of ascendancy over the offender woman either
because he is a person in authority, a domestic, a househelp, a priest, a teacher or a guardian, or
there was a deceitful promise of marriage which never would really be fulfilled.

Always remember that there can be no frustration of acts of lasciviousness, rape or adultery
because no matter how far the offender may have gone towards the realization of his purpose, if
his participation amounts to performing all the acts of execution, the felony is necessarily
produced as a consequence thereof.

Intent to rape is not a necessary element of the crime of acts of lasciviousness. Otherwise, there
would be no crime of attempted rape.

In the crime of acts of lasciviousness, the intention of the wrongdoer is not

very material. The motive that impelled the accused to commit the offense is
of no importance because the essence of lewdness is in the act itself.

What constitutes lewd or lascivious conduct must be determined from the

circumstances of each case. The demarcation line is not always easy to
determine but in order to sustain a conviction for acts of lasciviousness, it is
essential that the acts complained of be prompted by lust or lewd designs
and the victim did not consent to nor encouraged the act.
To be guilty of this crime however, the acts of lasciviousness must be committed under any of the
circumstances that had there been sexual intercourse, the crime would have been Rape. Where
circumstances however are such, indicating a clear intention to lie with the offended party, the
crime committed as Attempted Rape.

This crime (Art. 336) can be committed by either sex unlike in Acts of Lasciviousness with
Consent under Article 339. Thus, a lesbian who toyed with the private part of an eleven-year-old
girl who enjoyed it since she was given $50 dollars before the act, is guilty of Act of
Lasciviousness under this Article as the victim is below twelve year old; and had sexual
intercourse been possible and done, the act would have been Rape.

SEDUCTION

Article 337

QUALIFIED SEDUCTION OF A VIRGIN

Two classes of qualified seduction:

268

Seduction of a virgin over 12 and under 18 years of age by certain persons, such
as a person in authority, priest, teachers etc and

Seduction of a sister by her brother or descendant by her ascendant, regardless

of her age or reputation (incestuous seduction)

Elements:

That the offended party is a virgin, (presumed if she unmarried and of good reputation.)

That she must be over 12 and under 18 years of age.

That the offender has sexual intercourse with her.

That there is abuse of authority, confidence or relationship on the part of the offender ( person
entrusted with education or custody of victim; person in public authority, priest; servant)

Persons liable:

Those who abuse their authority:

persons in public authority

guardian

teacher

person who, in any capacity, is entrusted with the education or custody of the woman
seduced

Those who abused the confidence reposed in them:

priest

house servant

domestic

Those who abused their relationship:

brother who seduced his sister

ascendant who seduced his descendant

This crime also involves sexual intercourse. The offended woman must be over 12 but below 18
years.

The distinction between qualified seduction and simple seduction lies in the fact, among others,
that the woman is a virgin in qualified seduction, while in simple seduction, it is not necessary that
the woman be a virgin. It is enough that she is of good repute.

For purposes of qualified seduction, virginity does not mean physical virginity. It means that the
offended party has not had any experience before.

The virginity referred to here, is not to be understood in so material a sense as to exclude the idea
of abduction of a virtuous woman of a good reputation. Thus, when the accused claims he had
prior intercourse with the complainant, the latter is still to be considered a virgin (U.S. vs.
Casten, 34 Phil. 808). But if it was established that the girl had a carnal relations with other men,
there can be no crime of Seduction as she is not a virgin.

Although in qualified seduction, the age of the offended woman is considered, if the offended
party is a descendant or a sister of the offender no matter how old she is or whether she is a
prostitute the crime of qualified seduction is committed.
269

Illustration:

If a person goes to a sauna parlor and finds there a descendant and despite that, had sexual
intercourse with her, regardless of her reputation or age, the crime of qualified seduction is
committed.

In the case of a teacher, it is not necessary that the offended woman be his student. It is enough
that she is enrolled in the same school.

Deceit is not necessary in qualified seduction. Qualified seduction is committed even though no
deceit intervened or even when such carnal knowledge was voluntary on the part of the virgin.

This is because in such a case, the law takes for granted the existence of the deceit as an
integral element of the crime and punishes it with greater severity than it does the simple
seduction, taking into account the abuse of confidence on the part of the agent. Abuse of
confidence here implies fraud.

The fact that the offended party gave her consent to the sexual intercourse is
not a defense. Lack of consent on the part of the complainant is not an
element of the crime.

The term domestic refers to a person usually living under the same roof with
the offended party. It includes all those persons residing with the family and
who are members of the same household, regardless of the fact that their
residence may only be temporary or that they may be paying for their board
and lodging.

A domestic should not be confused with a house servant. A domestic is not

necessarily a house servant.

Where the offended party is below 12 years of age, regardless of whether the
victim is a sister or a descendant of the offender, the crime committed is
rape.

If the offended party is married and over 12 years of age, the crime
committed will be adultery.
An essential element of a qualified seduction is virginity (doncella). It is a
condition existing in a woman who has had no sexual intercourse with any
man. It does not refer to the condition of the hymen as being intact.

One who is charged with qualified seduction can be convicted of rape. But
one who is charged with rape cannot be convicted of qualified seduction
under the same information. (People vs. Ramirez, 69 SCRA 144)

Even if the woman has already lost her virginity because of rape, in the eyes
of the law, she remains a virtuous woman even if physically she is no longer a
virgin.

Article 338

SIMPLE SEDUCTION

ELEMENTS:

1. That the offended party is over 12 and under 18 years of age.

2. That she must be of good reputation, single or widow.

270

That the offender has sexual intercourse with her.

That it is committed by means of deceit.

Deceit generally takes the form of unfulfilled promise to marry. The promise
of marriage must serve as the inducement. The woman must yield on
account of the promise of marriage or other forms of inducement. (People vs.
Hernandez, 29 Phil. 109)

Where the accused failed to have sex with this sweetheart over twelve (12) but below eighteen
(18) years old because the latter refused as they were not yet married, and the accused procured
the performance of a fictitious marriage ceremony because of which the girlfriend yielded, he is
guilty of Simple Seduction. (U.S. vs. Hernandez, 29 Phil. 109). Here, there was deceit employed.
This act may now be considered Rape under R.A. 8353, Sec. 2 par. 6.

A promise of material things in exchange for the womans surrender of her

virtue does not constitute deceit.

If a woman under 18 years of age but over 12 agrees to a sexual intercourse

with a man who promised her precious jewelries but the man reneges on his
promise, there is no seduction that the woman is of loose morals. (Luis B.
Reyes)

Promise of marriage must precede sexual intercourse.

A promise of marriage made by the accused after sexual intercourse had

taken place, or after the woman had yielded her body to the man by mutual
consent will not render the man liable for simple seduction.

The offended woman must be under 18 but not less than 12 years old; otherwise, the crime is
statutory rape.

Unlike in qualified seduction, virginity is not essential in this crime. What is required is that the
woman be unmarried and of good reputation. Simple seduction is not synonymous with loss of
virginity. If the woman is married, the crime will be adultery.
Article 339

ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED

PARTY

ELEMENTS:

that the offender commits acts of lasciviousness or lewdness.

That the acts are committed upon a woman who is virgin or single or widow of good
reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of her
reputation or age.

that the offender accomplishes the acts by abuse of authority, confidence, relationship, or
deceit.
271

When the acts of lasciviousness is committed with the use of force or

intimidation or when the offended party is under 12 years of age, the object
of the crime can either be a woman or a man.

Where the acts of the offender were limited to acts of lewdness or lasciviousness, and no carnal
knowledge was had; but had there been sexual intercourse, the offense would have been
Seduction, he is guilty of Acts of Lasciviousness under this article.

The crime of acts of lasciviousness under Article 339 is one that is done with
the consent of the offended party who is always a woman. The lewd acts
committed against her is with her consent only because the offender took
advantage of his authority, or there was abuse of confidence, or the
employment of deceit, or the offender is related to the victim.

In the commission of the acts of lasciviousness either by force or intimidation,

or with the consent of the offended party, there must be no sexual
intercourse, or the acts performed are short of sexual intercourse. In the first
situation, the crime would either be qualified seduction or simple seduction if
the offender succeeds in having sexual intercourse with the victim. In these
two cases, there is consent but the same is procured by the offender through
the employment of deceit, abuse of confidence, abuse of authority or
because of the existence of blood relationship.

Article 340

CORRUPTION OF MINORS

Act punishable:

By promoting or facilitating the prostitution or corruption of persons underage to

satisfy the lust of another

It is not required that the offender be the guardian or custodian of the minor.
It is not necessary that the minor be prostituted or corrupted as the law merely punishes the act of
promoting or facilitating the prostitution or corruption of said minor and that he acted in order to
satisfy the lust of another.

A single act of promoting or facilitating the corruption or prostitution of a minor is sufficient to

constitute violation of this article.

What the law punishes is the act of pimp (bugaw) who facilitates the
corruption of a minor. It is not the unchaste act of the minor which is being
punished. So, a mere proposal to promote or facilitate the prostitution or
corruption of a minor is sufficient to consummate the crime.

Young minor should enjoy a good reputation. Apparently, a prostitute above

12 and under 18 years of age cannot be the victim in the crime of corruption
of minors.

Article 341

WHITE SLAVE TRADE

Acts penalized:
272

Engaging in the business of prostitution

Profiting by prostitution

Enlisting the service of women for the purpose of prostitution

The person liable under Article 341 is the one who maintains or engages in
the trade of prostitution. A white slave is a woman held unwillingly for
purposes of commercial prostitution. A white slaver on the other hand is
one engaged in white slave traffic, procurer of white slaves or prostitutes.

The most common way of committing this crime would be through the
maintenance of a bar or saloon where women engage in prostitution. For
each intercourse, the women pay the maintainer or owner of a certain
amount in this case, the maintainer of owner of the bar or saloon is liable for
white slave trade. (People vs. Go Lo, 56 O.G. 4056)

ABDUCTION

Article 342

FORCIBLE ABDUCTION

ELEMENTS:

That the person abducted is any woman, regardless of her age, civil status, or reputation.

That the abduction is against her will.

That the abduction is with lewd designs.

Note: Sexual intercourse is NOT necessary

Crimes against chastity where age and reputation of victim are immaterial: rape,
acts of lasciviousness, qualified seduction of sister/descendant, forcible abduction

Forcible abduction defined.

It is the taking away of any woman against her will, from her house or the
place where she may be, for the purpose of carrying her to another place
with intent to marry or corrupt her.

A woman is carried against her will or brought from one place to another against her will with
lewd design.

Unlike in Rape and Seduction, in the crime of Abduction, whether Forcible or Consented, there is
no sexual intercourse. The acts are limited to taking away from a place the victim, but the same
must be with lewd designs, that is, with unchaste design manifested by kissing and touching the
victims private parts.

If the element of lewd design is present, the carrying of the woman would qualify as abduction;
otherwise, it would amount to kidnapping. If the woman was only brought to a certain place in
order to break her will and make her agree to marry the offender, the crime is only grave coercion
273

because the criminal intent of the offender is to force his will upon the woman and not really to
restrain the woman of her liberty.

Where lewd design was not proved or shown, and the victim was deprived of her liberty, the
crime is Kidnapping with Serious Illegal Detention under this Article 267, RPC.

The element of lewd designs, which is essential to the crime of abduction

through violence refers to the intention to abuse the abducted woman. If such
intention is lacking or does not exist, the crime may be illegal detention. It is
necessary to establish the unchaste design or purpose of the offender. But it
is sufficient that the intent to seduce the girl is present. The evil purpose of
the offender may be established or inferred from the overt acts of the
accused.

If the offended woman is under 12 years old, even if she consented to the abduction, the crime is
forcible abduction and not consented abduction.

Where the offended woman is below the age of consent, even though she had gone with the
offender through some deceitful promises revealed upon her to go with him and they live together
as husband and wife without the benefit of marriage, the ruling is that forcible abduction is
committed by the mere carrying of the woman as long as that intent is already shown. In other
words, where the man cannot possibly give the woman the benefit of an honorable life, all that
man promised are just machinations of a lewd design and, therefore, the carrying of the woman is
characterized with lewd design and would bring about the crime of abduction and not kidnapping.
This is also true if the woman is deprived of reason and if the woman is mentally retardate.
Forcible abduction is committed and not consented abduction.

Lewd designs may be demonstrated by the lascivious acts performed by the offender on her.

Since this crime does not involve sexual intercourse, if the victim is subjected to this, then a crime
of rape is further committed and a complex crime of forcible abduction with rape is committed.

Lewd design does not include sexual intercourse. So, if sexual intercourse is
committed against the offended party after her forcible abduction, the
offender commits another crime separate and distinct from forcible
abduction. In this case, the accused should be charged with forcible
abduction with rape. (People vs. Jose, et al., 37 SCRA 450)
If the accused carried or took away the victim by means of force and with lewd design and
thereafter raped her, the crime is Forcible Abduction with Rape, the former being a necessary
means to commit the latter. The subsequent two (2) other sexual intercourse committed against
the will of the complainant would be treated as independent separate crimes of Rape. (People vs.

Bacalso, 210 SCRA 206).

If the main object of the offender is to rape the victim, and the forcible
abduction was resorted to by the accused in order to facilitate the
commission of the rape, then the crime committed is only rape. (People vs.
Toledo, 83 Phil. 777)

Where the victim was taken from one place to another, solely for the purpose
of killing him and not detaining him for any legal length of time, the crime
committed is murder.

(People vs. Ong, 62 SCRA 174)

True intention of the offender should be ascertained. If the detention is only

incidental, the same should be considered as absorbed. Otherwise, it should
be treated as a separate offense. When such a situation arises, we should
consider the application of Article 48 on complex crimes.

The taking away of the woman may be accomplished by means of deceit at the beginning and
then by means of violence and intimidation later.
274

The virginity of the complaining witness is not a determining factor in forcible abduction.

In order to demonstrate the presence of the lewd design, illicit criminal relations with the person
abducted need not be shown. The intent to seduce a girl is sufficient.

If there is a separation in fact, the taking by the husband of his wife against her will constitutes
grave coercion.

Distinction between forcible abduction and illegal detention:

When a woman is kidnapped with lewd or unchaste designs, the crime committed is forcible
abduction.

When the kidnapping is without lewd designs, the crime committed is illegal detention.

But where the offended party was forcibly taken to the house of the defendant to coerce her to
marry him, it was held that only grave coercion was committed and not illegal detention.

Forcible abduction must be distinguished from the crime of kidnapping. When

the violent taking of a woman is motivated by lewd design, the crime
committed is forcible abduction. But if the motive of the offender is to deprive
the woman of her liberty, the crime committed is kidnapping. Abduction is a
crime against chastity while kidnapping is a crime against personal liberty.

Article 343

CONSENTED ABDUCTION

ELEMENTS:

That the offended party must be a virgin.

That she must be over 12 and under 18 years of age.

That the taking away of the offended party must be with her consent, after solicitation or
cajolery from the offender.

That the taking away of the offended party must be with lewd designs.

Virginity may be presumed from the fact that the offended party is
unmarried and has been leading moral life. Virginity or maidenhood should
not be understood in such a matter of fact as to completely exclude a woman
who has had previous sexual intercourse. If the previous sexual intercourse
was the result of the crime of rape, the intercourse committed with her
against he will and over her violent objection should not render her unchaste
and a woman of bad reputation.

If the virgin in under 12 years old, the crime committed is forcible abduction
because of the theory that a child below 12 years of age has no will of her
own.

The purpose of the law on consented abduction is to punish the offender for
causing disgrace and scandal to the family of the offended party. The law
does not punish the offender for the wrong done to the woman since in the
eyes of the law, she consented to her seduction.

The deceit which is termed by the law as solicitation or cajolery maybe in the
form of honeyed promises of marriage.
275

In consented Abduction, it is not necessary that the young victim, (a virgin over twelve and under
eighteen) be personally taken from her parents home by the accused; it is sufficient that he was
instrumental in her leaving the house. He must however use solicitation, cajolery or deceit, or
honeyed promises of marriage to induce the girl to escape from her home.

In consented abduction, the taking away of the virgin must be with lewd
design. Actual sexual intercourse with the woman is not necessary. However,
if the same is established, then it will be considered as a strong evidence to
prove lewd design.

Where several persons participated in the forcible abduction and these persons also raped the
offended woman, the original ruling in the case of People v. Jose is that there would be one
count of forcible abduction with rape and then each of them will answer for his own rape and the
rape of the others minus the first rape which was complexed with the forcible abduction. This
ruling is no longer the prevailing rule. The view adopted in cases of similar nature is to the effect
that where more than one person has effected the forcible abduction with rape, all the rapes are
just the consummation of the lewd design which characterizes the forcible abduction and,
therefore, there should only be one forcible abduction with rape.

Article 344

PROSECUTION OF ADULTERY, CONCUBINAGE, SEDUCTION, ABDUCTION

RAPE AND ACTS OF LASCIVIOUSNESS

Adultery and concubinage must be prosecuted upon complaint signed by the offended spouse

Seduction, abduction, rape or acts of lasciviousness must be prosecuted upon complaint signed
by:

offended party

by her parents

grandparents
guardians in the order in which they are named above

The crimes of adultery and concubinage must be prosecuted upon a

complaint signed by the offended spouse. In the complaint, the offended
party must include both guilty parties if they are both alive.

Distinguished between a private crime and a public crime. In the case of a

private crime, the same cannot be prosecuted de oficio, meaning it cannot
be initiated by any person except the offended party. These are the crimes
against chastity such as seduction, adultery, concubinage and acts of
lasciviousness. These are crimes which are initiated with the filing of an
information. A public crime is one which can be prosecuted de officio,
meaning it can be prosecuted by any person interested to prosecute the
same. The accusation is usually initiated with the filling of an information.

The law requires that the complaint must be initiated by the said persons in
order that they are named or enumerated in the article. If this legal
requirement is not observed, the case should be dismissed for lack of
jurisdiction over the subject matter.

If the offended party is of age and is in complete possession of her mental

faculties, she alone can file the complaint (People vs. Mandia, 60 Phil. 372)
276

If the offended party cannot sign the complaint because of her tender age,
the parents can do it for her. The same can be done either by the father or
the mother. (U.S. vs.

Gariboso, 25 Phil 171 )

The word guardian as mentioned in the law refers to the guardian appointed
by the court. (People vs. Formento, et al., 60 Phil. 434)

What is the meaning of shall have consented which bars the institution of
criminal action for adultery or concubinage?

The term consent has reference to the tie prior to the commission of the
crime. In other words, the offended party gives his or her consent to the
future infidelity of the offending spouse.

And so, while consent refers to the offense prior to its commission, pardon
refers to the offense after its commission. (People vs. Schnekenburger, et al., 73 Phil.
413)

Note: Marriage of the offender with the offended party extinguishes the criminal action
or remit the penalty already imposed upon him. This applies as well to the accomplices,
accessories-after-the-fact. But marriages must be in good faith. This rule does not apply
in case of multiple rape

In the crimes involving rape, abduction, seduction, and acts of lasciviousness, the marriage by
the offender with the offended woman generally extinguishes criminal liability, not only of the
principal but also of the accomplice and accessory. However, the mere fact of marriage is not
enough because it is already decided that if the offender marries the offended woman without any
intention to perform the duties of a husband as shown by the fact that after the marriage, he
already left her, the marriage would appear as having been contracted only to avoid the
punishment. Even with that marriage, the offended woman could still prosecute the offender and
that marriage will not have the effect of extinguishing the criminal liability.

Pardon by the offended woman of the offender is not a manner of extinguishing criminal liability
but only a bar to the prosecution of the offender. Therefore, that pardon must come before the
prosecution is commenced. When the prosecution is already commenced or initiated, pardon by
the offended woman will no longer be effective because pardon may preclude prosecution but not
prevent the same.
Pardon in crimes against chastity, is a bar to prosecution. But it must come
before the institution of the criminal action. (See the cases of People vs. Villorente,
210 SCRA 647; People vs. Avila, 192 SCRA 635) To be effective, it must include both
accused.

How about pardon declared by the offended party during the trial of the
case? Such a declaration is not a ground for the dismissal of the case. Pardon
is a matter of defense which the accused must plead and prove during the
trial. (People vs. Riotes, C.A., 49

O.G.3403).

All these private crimes except rape cannot be prosecuted de officio. If any slander or written
defamation is made out of any of these crimes, the complaint of the offended party is still
necessary before such case for libel or oral defamation may proceed. It will not prosper because
the court cannot acquire jurisdiction over these crimes unless there is a complaint from the
offended party. The paramount decision of whether he or she wanted the crime committed on him
or her to be made public is his or hers alone, because the indignity or dishonor brought about by
these crimes affects more the offended party than social order. The offended party may prefer to
suffer the outrage in silence rather than to vindicate his honor in public .
277

Article 345

CIVIL LIABILITY OF PERSONS GUILTY OF RAPE, SEDUCTION OR

ABDUCTION

To idemnify the offended women

To acknowledge the offspring, unless the law should prevent him from doing so

In every case to support the offspring

The civil liability of the adulterer and the concubine is limited to indemnity for
damages caused to the offended spouse. The law does not mention the
adulteress in the crime of adultery such that only the adulterer shall be held
civilly liable.

There is likewise no mention of the offender in the crime of acts of

lasciviousness, as being held liable for civil damages under Article 345, the
law only mentioned the crimes of rape, seduction and abduction.

Under Article 2219 of the Civil Code, moral damages may be recovered in
seduction, abduction, rape or other lascivious acts. The crimes of adultery
and concubinage are also included.

In the crimes of rape, abduction and seduction, if the offended woman had given birth to the child,
among the liabilities of the offender is to support the child. This obligation to support the child may
be true even if there are several offenders. As to whether all of them will acknowledge the child,
that is a different question because the obligation to support here is not founded on civil law but is
the result of a criminal act or a form of punishment.

It has been held that where the woman was the victim of the said crime could not possibly
conceive anymore, the trial court should not provide in its sentence that the accused, in case a
child is born, should support the child. This should only be proper when there is a probability that
the offended woman could give birth to an offspring.
Article 346

LIABILITY OF ASCENDANTS, OTHER PERSONS ENTRUSTED WITH

CUSTODY OF OFFENDED PARTY WHO BY ABUSE OF AUTHORITY OR
CONFIDENCE SHALL COOPERATE AS ACCOMPLIES

TITLE TWELVE

CRIMES AGAINST THE CIVIL STATUS OF PERSONS

Crimes against the civil status of persons

Simulation of births, substitution of one child for another and concealment or

abandonment of a legitimate child (art. 347);

Usurpation of civil status (Art. 348);

Bigamy (Art. 349);

278

Marriage contracted against provisions of law (Art. 350);

Premature marriages (Art. 351);

Performance of illegal marriage ceremony (Art. 352).

Article 347

SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER,

AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD

Acts Punished:

Simulation of births

Substitution of one child for another

Concealing or abandoning any legitimate child with the intent to cause such child
to lose its civil status

Requisites:

The child must be legitimate

The offender conceals or abandons such child

The offender has the intent to cause the child to lose its civil status

Elements of Simulation of Birth

Child is baptized or registered in the Registry of birth as hers

Child loses its real status and acquiires a new one

Actors purpose was to cause the loss of any trace as to the childs true filiation

Simulation of birth takes place when a woman pretends to be pregnant

when in fact she is not and on the day of the supposed delivery, she takes
the child of another and declares the child to be her own. This is done by
entering in the birth certificate of the child that the offender is the alleged
mother of the child when in fact the child belongs to another.

Illustration:

People who have no child and who buy and adopt the child without going through legal adoption.
If the child is being kidnapped and they knew that the kidnappers are not the real parents of their
child, then simulation of birth is committed. If the parents are parties to the simulation by making
it appear in the birth certificate that the parents who bought the child are the real parents, the
crime is not falsification on the part of the parents and the real parents but simulation of birth.

Questions & Answers

1. A woman who has given birth to a child abandons the child in a certain place to free herself of
the obligation and duty of rearing and caring for the child. What crime is committed by the
woman?

The crime committed is abandoning a minor under Article 276.

279

2. Suppose that the purpose of the woman is abandoning the child is to preserve the inheritance
of her child by a former marriage, what then is the crime committed?

The crime would fall under the second paragraph of Article 347. The purpose of the woman is to
cause the child to lose its civil status so that it may not be able to share in the inheritance.

3. Suppose a child, one day after his birth, was taken to and left in the midst of a lonely forest,
and he was found by a hunter who took him home. What crime was committed by the person
who left it in the forest?

It is attempted infanticide, as the act of the offender is an attempt against the life of the child. See
US v. Capillo, et al., 30 Phil. 349.

Article 348

USURPATION OF CIVIL STATUS

Committed by a person who represents himself as another and assumes the filiation or rights
pertaining to such person

Notes:

There must be criminal intent to enjoy the civil rights of another by the offender knowing
he is not entitled thereto

The term "civil status" includes one's public station, or the rights, duties, capacities and
incapacities which determine a person to a given class. It seems that the term "civil status"
includes one's profession.

2. Committed by asuming the filiation, or the parental or conjugal rights of another

Usurpation is committed by assuming the filiation or parental (when
maternal, paternal or conjugal) claim of another. To be liable for usurpation of
civil status, the offender must have the intent to enjoy the rights arising from
the civil status of another.

Circumstances qualifying the offense: penalty is heavier when the purpose of the
impersonation is to defraud the offended party or his heirs

Article 349

BIGAMY

ELEMENTS:

That the offender has been legally married.

That the marriage has not been legally dissolved or, in case his or her spouse is absent, the
absent spouse could not yet be presumed dead according to the civil code.

That he contracts a second or subsequent marriage.

That the second or subsequent marriage has all the essential requisites for validity.

Notes:

The crime does not fall within the category of private crimes that can be prosecuted only
at the instance of the offended party PUBLIC CRIME
280

For the crime of bigamy to prosper the first marriage must be valid. If the first
marriage is void from the beginning, such nullity of the marriage is not a
defense in a charge of bigamy. Consequently, when raised as a defense, the
accused should be convicted since until and unless annulled, the bond of
matrimony remains or is maintained.

Need for judicial declaration of nullity

The second marriage must have all the essential requisites for validity were it not for the
existence of the first marriage.

A simulated marriage is not marriage at all and can be used as a defense for bigamy

Good faith is a defense in bigamy.

One who, although not yet married before, knowingly consents to be married to one who is
already married is guilty of bigamy knowing that the latters marriage is still valid and subsisting.

In the crime of bigamy, the second spouse is not necessarily liable. The
language of Article 349 indicates the crime of bigamy is committed by one
person who contracts a subsequent marriage while the former marriage is
valid and subsisting. If the second wife knew of the previous marriage of the
accused, she will be liable for the crime of bigamy but only as an accomplice.

There must be a summary proceeding to declare the absent spouse presumptively dead
for purposes of remarriage

Failure to exercise due diligence to ascertain the whereabouts of the 1st wife is bigamy
through reckless imprudence

A judicial declaration of the nullity of a marriage void ab initio is now required

The language of the law is clear when it declared before the former
marriage has been legally dissolved. The Supreme Court said the even if the
accused, as plaintiff in the civil case prevails, and his first marriage is
annulled, such pronouncement has no retroactive effect as to exculpate him
in the bigamy case. Parties to a marriage should not be permitted to judge its
nullity, for only competent courts have such authority.

(Landicho vs. Relova, 22 SCRA 731, 735)

The civil case for annulment of the first marriage does not pose a prejudicial
question as to warrant the suspension of the trial and proceeding in the
criminal case for bigamy.

(Roco, et al., Cinco, et al., 68 O.G.2952)

One convicted for bigamy may be prosecuted for concubinage as both are distinct
offenses

One convicted of bigamy may also be prosecuted for concubinage as both are distinct offenses.

The first is an offense against civil status, which may be prosecuted at the instance of the state;
the second is an offense against chastity, and may be prosecuted only at the instance of the
offended party. The test is not whether the defendant has already been tried for the same act, but
whether he has been put in jeopardy for the same offense.
281

One who vouches that there is no legal impediment knowing that one of the parties is
already married is an accomplice

Distinction between bigamy and illegal marriage:

Bigamy is a form of illegal marriage. The offender must have a valid and subsisting marriage.
Despite the fact that the marriage is still subsisting, he contracts a subsequent marriage.

Illegal marriage includes also such other marriages which are performed without complying with
the requirements of law, or such premature marriages, or such marriage which was solemnized
by one who is not authorized to solemnize the same.

Article 350

MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS

ELEMENTS:

That the offender contracted marriage.

That he knew at the time that

the requirement of the law were not complied with, or

The marriage was in disregard of a legal impediment.

Note: Circumstance qualifying the offense: if either of the contracting parties obtains
the consent of the other by means of violence, intimidation or fraud

The requirements of the law for a valid marriage are:

The legal capacity of the contracting parties;

Their consent freely given;

Authority of the person performing the marriage; and

Marriage license, except in marriage under exceptional circumstances.

The law further provides that for accused to be liable under this article, he
should not be guilty of bigamy because otherwise, the crime punished under
Article 350 is deemed absorbed in the bigamy.

Marriages contracted against the provisions of laws

The marriage does not constitute bigamy.

The marriage is contracted knowing that the requirements of the law have not been complied with
or in disregard of legal impediments.

One where the consent of the other was obtained by means of violence, intimidation or fraud.

If the second marriage is void because the accused knowingly contracted it without complying
with legal requirements as the marriage license, although he was previously married.
282

5. Marriage solemnized by a minister or priest who does not have the required authority to
solemnize marriages.

Article 351

PREMATURE MARRIAGE

Acts punished:

A widow who within 301 days from death of husband, got married or before her
delivery, if she was pregnant at the time of his death

A woman whose marriage having been dissolved or annulled, married before her
delivery or within 301 days after the legal separation

The Supreme Court has already taken into account the reason why such marriage within 301
days is made criminal, that is, because of the probability that there might be a confusion
regarding the paternity of the child who would be born. If this reason does not exist because the
former husband is impotent, or was shown to be sterile such that the woman has had no child
with him, that belief of the woman that after all there could be no confusion even if she would
marry within 301 days may be taken as evidence of good faith and that would negate criminal
intent.

Article 84 of the Civil Code provides that no marriage license shall be issued
to a widow until after 300 days following the death of her husband, unless in
the meantime she has given birth to a child.

Article 352

PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY

Act punished:

performance of any illegal marriage ceremony by a priest or minister of any

religious denomination or sect or by civil authorities

TITLE THIRTEEN

CRIMES AGAINST HONOR

Crimes against honor

Libel by means of writings or similar means (Art. 355);

Threatening to publish and offer to prevent such publication for a compensation (Art.
356);

Prohibited publication of acts referred to in the course of official proceedings (Art. 357);

Slander (Art. 358);

Slander by deed (Art. 359);

283

Incriminating innocent person (Art. 363);

Intriguing against honor (Art. 364).

Article 353

LIBEL

ELEMENTS:

That there must be an imputation of a crime, or of a vice or defect, real or imaginary, or any
act, omission, condition, status, or circumstances.

That the imputation must be made publicly.

That it must be malicious.

That the imputation must be directed at a natural or juridical person, or one who is dead.

That the imputation must tend to cause the dishonor, discredit or contempt of the person

defamed.

Notes:

Libel is a public and malicious imputation of a crime, or a vice or defect, real or

imaginary or any act, commission, condition, status or circumstances tending to cause
the dishonor, discredit or contempt of a natural or juridical person, or to blacken the
memory of one who is dead

Character of the words used to make it defamatory.

Words calculated to induce suspicion are more effective in destroying
reputation than false charges directly made. Ironical and metaphorical
language is a favored vehicle for slander. A charge is sufficient if the words
are calculated to induce the hearer to suppose and understand that the
person against whom they are uttered is guilty of certain offenses, or are
sufficient to impeach his honesty, virtue or reputation, or to hold him up to
public ridicule. (U.S. vs. OConnell, 37 Phil. 767)

Malice has been defined as a term used to indicate the fact that the defamer
is prompted by personal ill or spite and speaks not in response to duty but
merely to injure the reputation of the person defamed.

Kinds of Malice.

Malice in law This is assumed and is inferred from the defamatory

character of an imputation. The presumption of malice attaches to the
defamatory statement especially if it appears to be insulting per se. The law
presumes that the defamer made the imputation without good intention or
justifiable motive.

Malice in fact This refers to malice as a fact. The presence and existence
of personal ill-will or spite may still appear even if the statement is not
defamatory. So, where the defamatory acts may be presumed from the
publication of the defamatory acts imputed refer to the private life of the
individual, malice may be presumed from the publication of the defamatory
statement because no one has a right to invade anothers privacy.
284

Distinction between malice in fact and malice in law

Malice in fact is the malice which the law presumes from every statement whose tenor is
defamatory. It does not need proof. The mere fact that the utterance or statement is defamatory
negates a legal presumption of malice.

In the crime of libel, which includes oral defamation, there is no need for the prosecution to
present evidence of malice. It is enough that the alleged defamatory or libelous statement be
presented to the court verbatim. It is the court which will prove whether it is defamatory or not. If
the tenor of the utterance or statement is defamatory, the legal presumption of malice arises even
without proof.

Malice in fact becomes necessary only if the malice in law has been rebutted. Otherwise, there is
no need to adduce evidence of malice in fact. So, while malice in law does not require evidence,
malice in fact requires evidence.

Malice in law can be negated by evidence that, in fact, the alleged libelous or defamatory
utterance was made with good motives and justifiable ends or by the fact that the utterance was
privileged in character.

In law, however, the privileged character of a defamatory statement may be absolute or qualified.

When the privileged character is said to be absolute, the statement will not be actionable whether
criminal or civil because that means the law does not allow prosecution on an action based
thereon.

Illustration:

As regards the statements made by Congressmen while they are deliberating or discussing in
Congress, when the privileged character is qualified, proof of malice in fact will be admitted to
take the place of malice in law. When the defamatory statement or utterance is qualifiedly
privileged, the malice in law is negated. The utterance or statement would not be actionable
because malice in law does not exist. Therefore, for the complainant to prosecute the accused for
libel, oral defamation or slander, he has to prove that the accused was actuated with malice
(malice in fact) in making the statement.

2. Malice is presumed to exist in injurious publications

Where the imputation is based upon matters of public interest, the
presumption of malice does not arise from the mere publication of the
defamatory statement. A matter of public interest is common property. Malice
in fact comes into play when the statement made is not defamatory per se,
as when the offender resorts to underserved praises or satirical method of
impeaching the virtue, honesty and reputation of the offended party. It can
also appear in the form of innuendos.

This discussion leads to the conclusion that the determination of libelous

meaning is left to the good judgment of the court after considering all the
circumstances which lead to the utterance or publication of the defamatory
statement. The question is not what the writer of an alleged libel means but
what the words used by him mean. The meaning given by the writer or the
words used by him is immaterial. The question is not what the writer meant
but what he conveyed to those who heard or read him (People vs.

Encarnacion, 204 SCRA 1)

How to overcome the presumption of malice.

The presumption of malice is rebutted by showing :

285

that the accused published the defamatory imputation with good intention;

that there is justifiable motive for making it;

that the communication made is privileged; and

accused must prove the truth of the defamatory imputation in those cases
wherein truth is a defense.

Publication is the communication of the defamatory matter to some third person/s

Publication is the communication of the defamatory matter to a third person

or persons. So, the delivery of a defamatory writing to a typesetter is
sufficient publication. Writing a letter to another person other than the person
defamed is sufficient publication. (See Sazon vs. Court of Appeals, 255 SCRA 692)

The crime is libel if the defamation is in writing or printed media.

The crime is slander or oral defamation if it is not printed.

Person libeled must be identified. But the publication need not refer by name to the
libeled party. If not named it must be shown that the description of the person

referred to in the defamatory publication was sufficiently clear so that at least a 3rd
person would have identified the plaintiff.

When a libel is addressed to several persons, unless they are identified in the same libel, even if
there are several persons offended by the libelous utterance or statement, there will only be one
count of libel.

If the offended parties in the libel were distinctly identified, even though the libel was committed
at one and the same time, there will be as many libels as there are persons dishonored.
Illustration:

If a person uttered that All the Marcoses are thieves," there will only be one libel because these
particular Marcoses regarded as thieves are not specifically identified.

If the offender said, All the Marcoses the father, mother and daughter are thieves. There will
be three counts of libel because each person libeled is distinctly dishonored.

If you do not know the particular persons libeled, you cannot consider one libel as giving rise to
several counts of libel. In order that one defamatory utterance or imputation may be considered
as having dishonored more than one person, those persons dishonored must be identified.
Otherwise, there will only be one count of libel.

Note that in libel, the person defamed need not be expressly identified. It is enough that he could
possibly be identified because innuendos may also be a basis for prosecution for libel. As a
matter of fact, even a compliment which is undeserved, has been held to be libelous.

To presume publication there must be a reasonable probability that the alleged a libelous
matter was thereby exposed to be read or seen by 3rd persons.

Republication of defamatory article is punishable.

286

One is liable for publication of defamatory words against another although he

is only repeating what he heard and names the source of his information. A
person who repeats a slander or libelous publication heard or read from
another is presumed to indorse it. (People vs. Salumbides and Reanzares, C.A., 55 O.G.
2638)

Criterion to determine whether statements are defamatory

words are calculated to induce the hearers to suppose and understand that the person
against who they are uttered were guilty of certain offenses, or are sufficient to impeach
their honesty, virtue or reputation, or to hold the person up to public ridicule(US v
OConnel)

2 )construed not only as to the expression used but also with respect to the whole scope
and apparent object of the writer.(P v Encarnacion)

The test of libelous meanings is not the analysis of a sentence into component phrases with the
meticulous care of the grammarian or stylist, but the import conveyed by the entirety of the
language to the ordinary reader. (Lacsa vs. FAC, et al., 161 SCRA 427).

In libel cases, the question is not what the offender means but what the words used by him mean.
( Sazon vs. CA, 255 SCRA 692)

Praises undeserved are slander in disguise.

Where the comments are worded in praise of the plaintiff, like describing him
with qualities which plaintiff does not deserve because of his social, political
and economic status in the community which is too well known to all
concerned, are which intended are intended to ridicule rather than praise
him, the publication is deemed libelous

(Jimenez vs. Reyes, 27 SCRA 52)

Even if what was imputed is true, the crime of libel is committed unless one acted with good
motives or justifiable end. Poof of truth of a defamatory imputation is not even admissible in
evidence, unless what was imputed pertains to an act which constitutes a crime and when the
person to whom the imputation was made is a public officer and the imputation pertains to the
performance of official duty. Other than these, the imputation is not admissible.
When proof of truth is admissible

When the act or omission imputed constitutes a crime regardless of whether the offended party is
a private individual or a public officer;

When the offended party is a government employee, even if the act or omission imputed does not
constitute a crime, provided if its related to the discharged of his official duties.

Requisites of defense in defamation

If it appears that the matter charged as libelous is true;

It was published with good motives;

It was for justifiable ends.

If a crime is a private crime, it cannot be prosecuted de officio. A complaint from the offended
party is necessary.
287

Libel

Perjury

-false accusation need not be made under oath

-false accusation is made under oath

Newsweek v IAC

Newsweek portrayed the island province of Negros Occidental as a place dominated by

big landowners. Plaintiffs are associations of sugarcane planters. HELD: Dismissed. To
maintain a libel suit, the specific victim must be identifiable. Defamatory remarks directed
at a group of persons are not actionable unless the statements are all-embracing or
sufficiently specific for victim to be identifiable. An action for libel allegedly directed
against a group of sugar planters cannot be done by resort to filing a class suit as each
victim has his specific reputation to protect. In this case, each of the plaintiffs has a
separate and distinct reputation in the community.

Rule regarding Public Officers:

Defamatory remarks and comments on the conduct or acts of public officers which are related to
the discharge of their official duties will not constitute libel if the accused proves the truth of the
imputation. But any attack upon the private character of the public officers on matters which are
not related to the discharge of their official functions may constitute Libel.

Where malice cannot be inferred from false defamatory statements, the ruling
appears to be the true only if the offended party is a government employee,
with respect to facts related to the discharge of his official duties. With his
jurisprudence, it should now be emphasized that actual malice is now
required to be proven. It is enough to rely on presumed malice in libel cases
involving a public official or public figure.
Malice is now understood to mean publication with knowledge of falsehood or
reckless disregard of the statements veracity. The burden of proof has not
only been shifted to the plaintiff in libel, but proof has not only been shifted to
the plaintiff in libel, but proof of malice must now be clear and convincing.

Case Doctrines:

The fact that a communication is privileged is not a proper ground for the
dismissal of a complaint for libel. In the first place, it is a matter of defense.
Secondly, the fact that a communication is privileged does not mean that it is
not actionable. The privileged character simply does away with the
presumption of malice which the prosecution has to prove in such a case. (Lu
Chu Sing, et al., vs. Lu Tiong Gui, 76 Phil. 669)

Libel in answer to another libel is not a defense. (Pellicena vs. Gonzales, 6 Phil. 50)

If the defamatory imputation is in the nature of self-defense under Article 11 of

the Revised Penal Code such that the publication was done in good faith,
without malice and just adequate enough to protect his good name, the
statement may be considered privileged. (People vs. Baja, 40 O.G. 206; People vs.
Mendoza, C.A. 74 O.G. 5607)

The fair and true report of official proceedings refer to proceedings in the three
branches of government, to wit: judicial, legislative and executive. The
publisher is limited only to the narration of what had taken place even if the
report contains defamatory and injurious matter affecting another person, libel
is not committed for as long as what is contained is a fair and true report of
the proceedings.
288

Under Article 354, the publisher becomes liable when he makes comments or
remarks upon the private character of person, which are not relevant or
related to the judicial, legislative or executive proceedings.

Under our libel law, defamatory remarks against government employees with
respect to facts related to the discharge of their official duties will not
constitute libel, if defendant is able to prove the truth of the imputations. But
any attack on the private character of the officer on matters which are not
related to the discharge of his official functions may constitute libel since
under our laws, the right of the press to criticize public officers does not
authorize defamation. (U.S. vs. Bustos, supra; Sazon vs. Court of Appeals, supra).

Article354

REQUIREMENT OF PUBLICITY

Kinds of privileged communication

Absolutely privileged not actionable even if the actor has acted in bad faith

Qualifiedly privileged those which although containing defamatory imputations could

not be actionable unless made with malice or bad faith

When the defamatory imputation comes under the criteria of an absolute

privileged communication, the presumption of malice under Article 354 has
no application.

The presumption of malice, however, comes into play when the defamatory
statement is a conditional or qualified privileged communication. To
overcome this presumption of malice in law, the defamer must prove during
the proceeding that the defamatory imputation was committed because of a
legal, moral or social duty.
Privileged communication as categorized in this discussion is a matter of
defense. It is not a ground for a motion to quash after the arraignment of the
accused. (See Mercado vs. CFI of Rizal, 116 SCRA 93). If after the prosecution has
presented its evidence, it becomes evident that the defamatory statement
was made by the accused because of a legal, moral or social duty, then the
accused can file a demurrer to evidence, as in the meantime, there is
absence of malice in law which is presumed in all defamatory imputations.

General Rule: Every defamatory imputation is presumed malicious even if it be true, if

no good intention and justifiable motive for making it is shown

Exception:

a. private communication in performance of legal, moral or social duty

Requisites

1. that the person who made the communication had a legal, moral or social duty to
make the communication or at least he had an interest to be upheld
289

2. that the communication is addressed to an officer or a board, or superior, having some

interest or duty on the matter

3. that the statements in the communication are made in good faith without malice in fact

b. fair and true report, made in good faith, without any comments and remarks

Requisites

1. that the publication of a report of an official proceeding is a fair and true report of a
judicial, legislative, or other official proceedings which are not of confidential nature, or of
a statement, report, or speech delivered in said proceedings, or of any other act
performed by a public officer

2. that it is made in good faith

3. that it is made without any comments or remarks

Doctrine of fair comment

A fair comment on matters of public interest is included and is covered by

the mantle of privileged communication which constitutes a valid defense
against libel and slander. If the comment is an expression of opinion based
on established facts, then it is immaterial that the opinion happens to be
mistaken, as long as it might be reasonably inferred from the facts. Further
explaining the right to comment on a public issue, the

Court said, If a matter is a subject of public or general interest, it cannot

become less so merely because a private individual is involved. The public
primary interest is in the event; the public focus is on the conduct of the
participants and not on their prior anonymity or notoriety. ( Borjal vs. CA, 301
SCRA 1 )

Santos v CA
HELD: No malice, he simply furnished the readers with the info that a complaint has
been filed against the brokerage firm and reproduced the pleading verbatim with no
embellishments.

Article 355

LIBEL BY MEANS OF WRITING OR SIMILAR MEANS

A libel may be committed by means of

Writing;

Printing;

Lithography;

Engraving;

Radio;

Photograph;

Painting;

Theatrical exhibition;
290

Cinematographic exhibition; or

Any similar means.

In the enumeration above, television is not included, probably because at the

time the Revised Penal Code was conceived, television had not yet been
invented. However, the law provides, or any similar means which easily
qualifies television is such species or category. (People vs. Casten, C.A., G.R. No.
07924-CR promulgated December 13, 1974)

Article 356

THREATENING TO PUBLISH LIBEL AND OFFER TO PREVENT SUCH

PUBLICATION FOR A COMPENSATION

Acts punished

Threatening another to publish a libel concerning him, or his parents, spouse, child, or other
members of his family;

Offering to prevent the publication of such libel for compensation or money consideration.

It involves the unlawful extortion of money by appealing to the fear of the

victim, through threats of accusation or exposure. It contemplates of two
offenses: a threat to establish a libel and an offer to prevent such publication.
The gravamen of the crime is the intent to extort money or other things of
value.

Blackmail In its metaphorical sense, blackmail may be defined as any unlawful extortion of
money by threats of accusation or exposure. Two words are expressive of the crime hush
money. (US v. Eguia, et al., 38 Phil. 857) Blackmail is possible in (1) light threats under Article
283; and (2) threatening to publish, or offering to prevent the publication of, a libel for
compensation, under Article 356.
Article 357

PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF

OFFICIAL PROCEEDINGS

ELEMENTS:

That the offender is a reporter, editor or manager of a newspaper, daily or magazine.

That he publishes facts connected with the private life of another.

That such facts are offensive to the honor, virtue and reputation of said person.

Note:

Even though made in connection with or under the pretext that it is necessary in the
narration of any judicial or administrative proceedings wherein such facts have been
mentioned.

With its provisions, Article 357 has come to be known as the Gag Law. It
prohibits reporters, editors or managers of newspapers from publishing
articles containing facts connected with the private life of an individual; facts
which are offensive to the honor, virtue and reputation of persons. But these
must refer to facts which are intimately
291

related to the offended partys family and home. Occasionally, it involves

conjugal troubles and quarrels because of infidelity, adultery or crimes
involving chastity.

Lacsa v IAC

Lacsa found that Marquez was not a proprietary member of PCA thus not qualified to be
president. He wrote to the BOD and to Marquez. He caused to publish the second letter.
HELD: Letter is not privileged communication. To be classified as such it must be free
from malice. Granting that the letter was privileged communication, written out of a duty
of an officer towards the members, such character was lost when it was published.

Under Republic Act No. 1477, amending Rep. Act. No. 58, the publisher,
editor, columnist or duly accredited reporter of any newspaper, magazine or
periodical of general circulation cannot be compelled to reveal the source of
any news report information appearing in the said publication which was
related to him in confidence unless the court or a house or committee of
Congress finds that such revelation is demanded by the security of the State.

Article 358

ORAL DEFAMATION / SLANDER

Two Kinds of Oral Defamation:

action of a serious and insulting nature (Grave slander)

light insult or defamation not serious in nature (simple slander)

Factors that determine gravity of the offense:

expressions used

personal relations of the accused and the offended party

circumstances surrounding the case

Notes:

The gravity of oral defamation depends not only on the expressions but also
on the personal relation of the accused with the offended party. Other
circumstances like the presence of important people when the crime was
committed, the social standing and position of the offended party are factors
which may influence the gravity and defamatory imputation (Victorio vs. Court
of Appeals, 173 SCRA 645).

Note that slander can be committed even if the defamatory remark was done
in the absence of the offended party. (People vs. Clarin, C.A., 37 O.G. 1106)

Words uttered in the heat of anger constitute light oral defamation (P v Doronilla)
292

If the utterances were made publicly and were heard by many people and the accused
at the same time levelled his finger at the complainant, oral defamation is committed (P v

Salleque)

The word puta does not impute that the complainant is prostitute.
(People vs. Atienza, G.R. No. L-19857, Oct. 26, 1968 ) It is a common expression
of anger or displeasure. It is seldom taken in its literal sense by the
hearer. It is viewed more as a threat on the part of the accused to
manifest and emphasize a point. (Reyes vs. People, 27 SCRA 686)

Article 359

SLANDER BY DEED

ELEMENTS:

That the offender performs any act not included in any other crime against honor.

That such act is performed in the presence of other person or persons.

That such act casts dishonor, discredit or contempt upon the offended party.

Notes:

Slander by deed is a defamation committed by the offender against the

complainant through the performance of any act which casts dishonor,
discredit or contempt upon another person.

Slander by deed refers to performance of an act, not use of words.

Two kinds of slander by deed

Simple slander by deed; and

Grave slander by deed, that is, which is of a serious nature.

Whether a certain slanderous act constitutes slander by deed of a serious nature or not, depends
on the social standing of the offended party, the circumstances under which the act was
committed, the occasion, etc.

The acts of slapping and boxing the woman, a teacher, in the presence of many people
has put her to dishonor, contempt and ridicule. (P v Costa)

If the acts committed against the offended party caused her physical injury
which did not require medical attendance, then the crime would be
maltreatment which is classified as slight physical injuries.

c. P v Motita

Accused held a mirror between the legs of complainant to reflect her private parts. The
crowd laughed. Guilty of slander by deed.

Distinctions:
293

Unjust Vexation-irritation or annoyance/anything that annoys or irritates without

justification.

Slander by Deed-irritation or annoyance + attendant publicity and dishonor or contempt.

Acts of lasciviousness-irritation or annoyance + any of 3 circumstance provided in

Art335 of RPC on rape

use of force or intimidation

deprivation of reason or rendering the offended unconscious

offended party under 12 yrs of age+lewd designs

Article 360

PERSONS RESPONSIBLE FOR LIBEL

Who are liable:

a. person who publishes, exhibits or causes the publication or exhibition of any

defamation in writing or similar means(par.1)

author or editor of a book or pamphlet

editor or business manager of a daily newspaper magazine or serial

publication(par.2)

owner of the printing plant which publishes a libelous article with his consent and
all other persons who in any way participate in or have connection with its
publication (US v Ortiz)
A defamatory statement by itself is not a crime. It is the undue publication of
the defamatory imputation which makes it a crime. It is therefore in this
concept that proprietors and editors of periodicals are also made responsible
for the appearance of defamatory matters in any newspaper under their
management.

Venue of criminal and civil action for damages in cases of written defamation:

where the libelous article is printed and 1st published OR

where any of the offended parties actually resides at the time of the commission of the
offense

Libel cases are within the original and exclusive jurisdiction of the Regional
Trial Courts. Inferior courts have no jurisdiction to try written defamation.
(People vs. Hechanova, 54

SCRA 101)

Where one of the offended parties is a public officer: a. if his office is in the City of
Manila

RTC of Manila OR

city/province where the article is printed and 1st published b. Otherwise

RTC of the city/province where he held office at the time of offense OR

where the article is 1st published

Where one of the offended parties is a private individual:

294

RTC of province/city where he actually resides at the time of the crime

where article was printed or 1st published

In order to prevent controversies as to the venue of criminal actions for

written defamation, the information or complaint must contain averments as
to whether the offended party is a private or public officer at the time of the
commission of the offense and whenever possible, the place where the
written defamation was printed and first published. (Agbayani, et al., vs. Hon.
Sayo, et al., L-47880, April 30, 1979)

Note: Offended party must file complaint for defamation imputing a crime which cannot
be prosecuted de oficio (e.g. adultery, concubinage, rape, seduction, abduction, and acts
of lasciviousness)

Under the last paragraph of Article 360, only defamation consisting of the
imputation of private offenses such as adultery, concubinage, seduction,
abduction and acts of lasciviousness shall be prosecuted by the offended
party by filing a complaint. Outside of this enumeration by law, the crime is
considered a public crime which may be prosecuted de oficio.

Soriano v IAC

The Philippines follows the multiple publication rule which means that every time the
same written matter is communicated, such communication is considered a distinct and
separate publication of libel.

Where the publication is libelous per se, actual damages need not be
established. This is so because libel, by its very nature, causes dishonor,
disrepute and discredit and injury to the reputation of the offended party. It is
something inherent and natural in the crime of libel. (Lu Chu Sing vs. Lu Tiong
Gui, 76 Phil. 669)

Article 361

PROOF OF THE TRUTH

Admissible when:

the act or omission imputed constitutes a crime regardless of whether the offended party
is a private individual or a public officer

the offended party is a government employee, even if the act or omission imputed does
not constitute a crime provided it is related to the discharge of his official duties

Requisites for Acquittal:

it appears that the matter charged as libelous is TRUE (for situations 1 and 2 above)

it was published with good motives and for a justifiable end (for situation 1

only)

Notes: The proof of the truth of the accusation cannot be made to rest upon mere
hearsay, rumors, or suspicion. It must rest upon positive direct evidence, upon which a
definite finding may be made by the court (US v Sotto)

Admission on the part of the accused that he committed a mistake will not
serve to free him from criminal liability. But it may serve to mitigate the
penalty imposed on him or lessen his civil liability. ( Phee vs. La Vanguardia, 45
Phil 211 )
295

Article 362

LIBELOUS REMARKS

Libelous remarks or comments on privileged matters (under Art. 354) if made with malice in
fact will not exempt the author and editor.

*This article is a limitation to the defense of privileged communication.

The main thrust of the law is to punish libelous remarks or comments on

matters which are privileged, if made with malice in fact. So, a newspaper
reporter who distorts facts connected with official proceedings or who adds
comments thereon as to cast aspersion on the character of the parties
involved, is guilty of libel even through the defamatory matter is published in
connection with a privileged communication. (Dorr vs. U. S., 11

Phil. 706)

INCRIMINATORY MACHINATIONS

Article363

INCRIMINATING INNOCENT PERSON

ELEMENTS:

That the offender performs an act.

That by such act he directly incriminates or imputes to an innocent person the commission of a
crime.
That such act does not constitute perjury.

Two Kinds:

making a statement which is

defamatory or

perjurious (if made under oath and is false) b. planting evidence

Note: article is limited to planting evidence and the like

This crime cannot be committed through verbal incriminatory statements. It is defined as an act
and, therefore, to commit this crime, more than a mere utterance is required.

If the incriminating machination is made orally, the crime may be slander or oral defamation.

If the incriminatory machination was made in writing and under oath, the crime may be perjury if
there is a willful falsity of the statements made.

If the statement in writing is not under oath, the crime may be falsification if the crime is a material
matter made in a written statement which is required by law to have been rendered.

As far as this crime is concerned, this has been interpreted to be possible only in the so-called
planting of evidence.

There is such a crime as incriminating an innocent person through unlawful

arrest.

(People vs. Alagao, et al., G.R. No. L-20721, April 30, 1966)
296

Article 364

INTRIGUING AGAINST HONOR

How committed:

-by any person who shall make any intrigue which has for its principal purpose to blemish the
honor or reputation of another person

Notes:

The crime is committed by resorting to any form of scheme or plot designed

to blemish the reputation of a person. The offender does not employ written
or spoken words, pictures or caricatures to ridicule the victim. Rather, he uses
some ingenious, crafty and secret ploy which produces the same effect.

Intriguing against honor is referred to as gossiping. The offender, without ascertaining the truth of
a defamatory utterance, repeats the same and pass it on to another, to the damage of the
offended party. Who started the defamatory news is unknown.

Where the source of polluted information can be traced and pinpointed, and the accused adopted
as his own the information he obtained, and passed it to another in order to cause dishonor to the
complainants reputation, the act is Slander and not Intriguing Against Honor. But where the
source or the author of the derogatory information can not be determined and the accused
borrows the same, and without subscribing to the truth thereof, passes it to others, the act is one
of Intriguing Against Honor.

b. Committed by saying to others an unattributable thing, if said to the person himself it

is slander.

Distinction between intriguing against honor and slander:

When the source of the defamatory utterance is unknown and the offender simply repeats or
passes the same, the crime is intriguing against honor.

If the offender made the utterance, where the source of the defamatory nature of the utterance is
known, and offender makes a republication thereof, even though he repeats the libelous
statement as coming from another, as long as the source is identified, the crime committed by
that offender is slander.

Distinction between intriguing against honor and incriminating an innocent person:

In intriguing against honor, the offender resorts to an intrigue for the purpose of blemishing the
honor or reputation of another person.

In incriminating an innocent person, the offender performs an act by which he directly

incriminates or imputes to an innocent person the commission of a crime.

RA4200 The Anti - Wire Tapping Act

Acts punished:

1) any person, not authorized by all the parties to any private communication or spoken
word

a) taps any wire of cable OR

297

uses any other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone or
dictagraph or walkie talkie or tape recorder

any person, whether or not a participant in the above-mentioned acts:

knowingly possesses any tape record, wire record, disc record, or any other such record
or copies thereof of any communication or spoken word

replays the same for any other person

c)communicates the contents thereof, whether complete or partial, to any other person

Notes:

Peace officer is exempt if acts done under lawful order of the court. You can only use the
recording for the case for which it was validly requested.

Information obtained in violation of the Act is inadmissible in evidence in any hearing or

investigation.

c. Gaanan v IAC

An extension phone is not one of those prohibited under RA 4200. There must be either
a physical interruption through the wiretap or the deliberate installation of a device or
arrangement in order to overhear, intercept or record the spoken words. The extension
phone was not installed for such purpose.

CRIMINAL NEGLIGENCE

Article 365

ELEMENTS OF RECKLESS IMPRUDENCE:

That the offender does or fails to do an act.

That the doing of or the failure to do that act is voluntary.

That it be without malice.

That material damage results.

That there is inexcusable lack of precaution on the part of the offender, taking into
consideration

his employment or occupation

degree of intelligence, physical condition, and

other circumstances regarding persons, time and place.

ELEMENTS OF SIMPLE IMPRUDENCE:

298

That there is lack of precaution on the part of the offender.

That the damage impending to be caused in not immediate or the danger is not clearly
manifest.

Quasi-offenses punished

Committing through reckless imprudence any act which, had it been intentional, would constitute
a grave or less grave felony or light felony;

Committing through simple imprudence or negligence an act which would otherwise constitute a
grave or a less serious felony;

Causing damage to the property of another through reckless imprudence or simple imprudence or
negligence;

Causing through simple imprudence or negligence some wrong which, if done maliciously, would
have constituted a light felony.

Distinction between reckless imprudence and negligence:

The two are distinguished only as to whether the danger that would be impending is easily
perceivable or not. If the danger that may result from the criminal negligence is clearly
perceivable, the imprudence is reckless. If it could hardly be perceived, the criminal negligence
would only be simple.

There is no more issue on whether culpa is a crime in itself or only a mode of incurring criminal
liability. It is practically settled that criminal negligence is only a modality in incurring criminal
liability. This is so because under Article 3, a felony may result from dolo or culpa.

Notes:
Test for determining whether or not a person is negligent of doing of
an act which results in injury or damages to another person or his
property.

Would a prudent man in the position of the person to whom negligence is

attributed, foresee harm to the person injured? If so, the law imposes on the
doer, the duty to refrain from the course of action, or to take precaution
against such result. Failure to do so constitutes negligence. Reasonable
foresight of harm, followed by ignoring the admonition borne of this
provisions, is the constitutive fact of negligence. (Picart vs.

Smith, 37 Phil. 809, 813)

Test of Negligence.

Did the defendant, in doing the alleged negligent act, use the reasonable
care and caution which an ordinary prudent person would have used in the
same situation? If not, then he is guilty of negligence.

The penalties under Article 365 has no application in the following

cases:

When the penalty provided for the offense ifs equal or lower than that
provided in pars.1 and 2 of Article 365. In this case, the penalty shall be that
which is next lower in degree than that which should be imposed, in the
period which the court may deem proper to apply.
299

When by imprudence or negligence and with violation of the Automobile Law,

the death of a person is caused, the penalty is prision correccional in its
medium and maximum periods.

Art.64 on mitigating and aggravating circumstances not applicable.

Failure to lend on the spot assistance to victim of his negligence: penalty next higher in
degree.

Abandoning usually punishable under Art 275, if charged under Art 365 is only qualifying
and if not alleged cannot even be an aggravating circumstance.

Contributory negligencenot a defense, only mitigating

The defense of contributory negligence does not apply in criminal cases

committed through reckless imprudence. It is against public policy to invoke
the negligence of another to escape criminal liability. (People vs. Quiones, C.A.,
44 O.G. 1520)

The above-mentioned doctrine should be reconciled with the doctrine of

concurrent proximate cause of two negligent drivers.

In the case of People vs. Desalis, et al., C.A., 57 O.G. 8689, the two accused were
drivers of two speeding vehicles which overtook vehicles ahead of them and
even encroached on the others lane without taking due precaution as
required by the circumstances. The court found the concurrent or successive
negligent act or omission of the two drivers as the direct and proximate
cause of the injury caused to the offended party. The court could not
determine in what proportion each driver contributed to the injury. Both were
declared guilty for the injury suffered by the third person.

When negligence does not result in any injury to persons or damage to

property, then no crime is committed. Negligence becomes punishable when
it results in the commission of a crime. (Lantok, Jr. vs. Hon. Gorgonio, L-37396, April
30, 1979, 75 O.G.
7763)

Last clear chance doctrine-

The contributory negligence of the injured party will not defeat the action if it be shown
that the accused might, by the exercise of reasonable care and prudence, have avoided
the consequences of the negligence of the injured party

Emergency rule-

An automobile driver, who, by the negligence of another, is suddenly placed in an

emergency and compelled to act instantly to avoid a collision or injury is not guilty of
negligence if he makes a choice which a person of ordinary prudence placed in such a
position might make even though he did not make the wisest choice.

Doctrine of Pre-emption

It is a rule in collision cases which the driver of a motor vehicle to make a full
stop when crossing a thru-street. Any accident therefore which takes place in
said corner gives to rise to the presumtion of negligence on the part driver of
the motor vehicle running thru-street has already reached the middle part of
the intersection. In such a case, the
300

other driver who has the right of way has the duty to stop his motor vehicle in
order to avoid a collision. (People vs. Taradji, 3 C.A. Rep. [25] 460)

P v Cano

Negligence is a quasi-offense. What is punished is not the effect of the negligence but
the recklessness of the accused.

P v Carillo

13 yr old girl dies 3 days after surgery due to an overdose of Nubain which triggered a
heart attack that caused brain damage. HELD: Guilty of simple negligence resulting to
homicide. Carillo was the anesthesiologist, he and his co-accused failed to monitor and
provide close patient care, to inform the parents of the childs true condition, to prove
that they exercised necessary and appropriate degree of care and diligence to prevent
the condition.

Buearano v CA

Conviction of the accused in the charge of slight and less serious physical injuries
through reckless imprudence constitutes double jeopardy to the charge of the crime of
damage to property through reckless imprudence.

Since this is the mode of incurring criminal liability, if there is only one carelessness, even if there
are several results, the accused may only be prosecuted under one count for the criminal
negligence. So there would only be one information to be filed, even if the negligence may bring
about resulting injuries which are slight.

Do not separate the accusation from the slight physical injuries from the other material result of
the negligence.

If the criminal negligence resulted, for example, in homicide, serious physical injuries and slight
physical injuries, do not join only the homicide and serious physical injuries in one information for
the slight physical injuries. You are not complexing slight when you join it in the same information.
It is just that you are not splitting the criminal negligence because the real basis of the criminal
liability is the negligence.

If you split the criminal negligence, that is where double jeopardy would arise.
Accused is not criminally liable for the death or injuries caused by his
negligence to trespassers whose presence in the premises he was not aware
of. In the case of People vs. Cuadra, C.A., 53 O.G. 7265, accused was a truck driver.
Unknown to him, several persons boarded his truck and while driving along a
slippery road which has a declinations of 25 degrees, the left front wheel of
the truck fell into a ditch. In his effort to return the truck to the center of the
road, the truck turned turtle, throwing off two of the passengers who boarded
the truck without his knowledge. As a consequence, one of them died. Cuadra
was acquitted of the crime of reckless imprudence resulting in homicide and
physical injuries.

Overtaking of another vehicle is a normal occurrence in driving. But when the

overtaking is done from right, it shows recklessness and disregard of traffic
laws and regulations. It is likewise so when the overtaking is done while
another vehicle is approaching from the opposite direction. This is a violation
of Section 59(b) of the Motor Vehicle Law (People vs. Songalla, C.A., 67 O.G. 8330)

Driving within the speed limit is not a guaranty of due care. Speed limits
impose the maximum speed which should not be exceeded. The degree of
care required of a motorist is not governed by speed limits but by the
circumstances and conditions
301

obtaining in the place at the particular time. So, if the maximum speed limit
is 80 kilometers per hour and the vehicle driven at 30 kilometers per hour,
but because of the very slow pace of the vehicle, an accident occurs, the
observation of the speed limit will not be acceptable evidence of due care.
(people vs. Caluza, C.A., 58 O.G. 8060)

Force majeure in relation to negligence.

Force majeure has reference to an event which cannot be foreseen or which

being foreseen, is inevitable. It implies an extraordinary circumstance
independent of the will of the actor or perpetrator. In negligence, the
immediate personal harm or damage to property is perceivable and can be
prevented by the exercise of reasonable care. As the event is foreseeable, the
failure of the actor to use reasonable care to prevent harm or damage
constitutes reckless imprudence or simple negligence. (People vs. Eleazar ).