REVISED ORTEGA LECTURE NOTES ON Contemplacion or Abner Afuang, the police

CRIMINAL LAW officer who stepped on a Singaporean flag.

(3) Violation of Neutrality, under Article 119 – The

Philippines is not a party to a war but there is a
TITLE I. CRIMES AGAINST NATIONAL SECURITY war going on. This may be committed in the
AND THE LAW OF NATIONS light of the Middle East war.

Crimes against national security Article 114. Treason

1. Treason (Art. 114); Elements

2. Conspiracy and proposal to commit treason 1. Offender is a Filipino or resident alien;

(Art. 115);
2. There is a war in which the Philippines is
3. Misprision of treason (Art. 116); and involved;

4. Espionage (Art. 117). 3. Offender either –

a. levies war against the government; or

Crimes against the law of nations
b. adheres to the enemies, giving them
1. Inciting to war or giving motives for reprisals aid or comfort within the Philippines or
(Art. 118); elsewhere

2. Violation of neutrality (Art. 119);

Requirements of levying war
3. Corresponding with hostile country (Art. 120);
1. Actual assembling of men;
4. Flight to enemy's country (Art. 121); and
2. To execute a treasonable design by force;
5. Piracy in general and mutiny on the high seas
(Art. 122). 3. Intent is to deliver the country in whole or in
part to the enemy; and

The crimes under this title can be prosecuted even if 4. Collaboration with foreign enemy or some
the criminal act or acts were committed outside the foreign sovereign
Philippine territorial jurisdiction. However, prosecution
can proceed only if the offender is within Philippine
territory or brought to the Philippines pursuant to an Two ways of proving treason
extradition treaty. This is one of the instances where
the Revised Penal Code may be given extra-territorial 1. Testimony of at least two witnesses to the
application under Article 2 (5) thereof. In the case of same overt act; or
crimes against the law of nations, the offender can be
prosecuted whenever he may be found because the 2. Confession of accused in open court.
crimes are regarded as committed against humanity in
general.
Article 115. Conspiracy and Proposal to Commit
Almost all of these are crimes committed in times of Treason
war, except the following, which can be committed in
times of peace: Elements of conspiracy to commit treason

(1) Espionage, under Article 114 – This is also 1. There is a war in which the Philippines is
covered by Commonwealth Act No. 616 which involved;
punishes conspiracy to commit espionage.
This may be committed both in times of war 2. At least two persons come to an agreement to
and in times of peace. –

(2) Inciting to War or Giving Motives for Reprisals, a. levy war against the government; or
under Article 118 – This can be committed
even if the Philippines is not a participant. b. adhere to the enemies, giving them aid
Exposing the Filipinos or their properties or comfort;
because the offender performed an
unauthorized act, like those who recruit 3. They decide to commit it.
Filipinos to participate in the gulf war. If they
involve themselves to the war, this crime is
committed. Relevant in the cases of Flor Elements of proposal to commit treason

1
1. There is a war in which the Philippines is character. In the problem given, it was rebellion. A
involved; conspiracy to overthrow the government is a crime of
rebellion because there is no war. Under the Revised
2. At least one person decides to – Penal Code, there is no crime of misprision of rebellion.

a. levy war against the government; or

Article 117. Espionage
b. adhere to the enemies, giving them aid
or comfort; Acts punished
3. He proposes its execution to some other
persons. 1. By entering, without authority therefore, a
warship, fort or naval or military establishment
or reservation to obtain any information, plans,
Article 116. Misprision of Treason photograph or other data of a confidential
nature relative to the defense of the Philippines;
Elements
Elements
1. Offender owes allegiance to the government,
and not a foreigner; 1. Offender enters any of the places
mentioned;
2. He has knowledge of conspiracy to commit
2. He has no authority therefore;
treason against the government;
3. His purpose is to obtain information,
3. He conceals or does not disclose and make plans, photographs or other data of a
known the same as soon as possible to the confidential nature relative to the
governor or fiscal of the province in which he defense of the Philippines.
resides, or the mayor or fiscal of the city in
which he resides. 2. By disclosing to the representative of a foreign
nation the contents of the articles, data or
information referred to in paragraph 1 of Article
While in treason, even aliens can commit said crime 117, which he had in his possession by reason
because of the amendment to the article, no such of the public office he holds.
amendment was made in misprision of treason.
Misprision of treason is a crime that may be committed Elements
only by citizens of the Philippines.
1. Offender is a public officer;
The essence of the crime is that there are persons who
conspire to commit treason and the offender knew this 2. He has in his possession the articles,
and failed to make the necessary report to the data or information referred to in
government within the earliest possible time. What is paragraph 1 of Article 117, by reason of
required is to report it as soon as possible. The the public office he holds;
criminal liability arises if the treasonous activity was still 3. He discloses their contents to a
at the conspiratorial stage. Because if the treason representative of a foreign nation.
already erupted into an overt act, the implication is that
the government is already aware of it. There is no need
to report the same. This is a felony by omission Commonwealth Act No. 616 – An Act to Punish
although committed with dolo, not with culpa. Espionage and Other Offenses against National
Security
The persons mentioned in Article 116 are not limited to
mayor, fiscal or governor. Any person in authority Acts punished
having equivalent jurisdiction, like a provincial
commander, will already negate criminal liability. 1. Unlawfully obtaining or permitting to be
obtained information affecting national defense;
Whether the conspirators are parents or children, and
the ones who learn the conspiracy is a parent or child, 2. Unlawful disclosing of information affecting
they are required to report the same. The reason is that national defense;
although blood is thicker than water so to speak, when
it comes to security of the state, blood relationship is 3. Disloyal acts or words in times of peace;
always subservient to national security. Article 20 does
not apply here because the persons found liable for this 4. Disloyal acts or words in times of war;
crime are not considered accessories; they are treated
as principals. 5. Conspiracy to violate preceding sections; and
In the 1994 bar examination, a problem was given with 6. Harboring or concealing violators of law.
respect to misprision of treason. The text of the
provision simply refers to a conspiracy to overthrow the
government. The examiner failed to note that this Article 118. Inciting to War or Giving Motives for
crime can only be committed in times of war. The Reprisals
conspiracy adverted to must be treasonous in

2
 Elements 3. Offender attempts to flee or go to enemy
country;
1. Offender performs unlawful or unauthorized
acts; 4. Going to the enemy country is prohibited by
competent authority.
2. The acts provoke or give occasion for –

a. a war involving or liable to involve the In crimes against the law of nations, the offenders can
Philippines; or be prosecuted anywhere in the world because these
crimes are considered as against humanity in general,
b. exposure of Filipino citizens to reprisals like piracy and mutiny. Crimes against national security
on their persons or property. 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
Article 119. Violation of Neutrality national security may be committed abroad and still be
punishable under our law, but it can not be tried under
Elements foreign law.

There is a war in which the Philippines is not involved;

Article 122. Piracy in general and Mutiny on the
There is a regulation issued by a competent authority to High Seas or in Philippine Waters
enforce neutrality;
Acts punished as piracy
3. Offender violates the regulation.
1. Attacking or seizing a vessel on the high seas
or in Philippine waters;
When we say national security, it should be interpreted
as including rebellion, sedition and subversion. The 2. Seizing in the vessel while on the high seas or
Revised Penal Code does not treat rebellion, sedition in Philippine waters the whole or part of its
and subversion as crimes against national security, but cargo, its equipment or personal belongings of
more of crimes against public order because during the its complement or passengers.
time that the Penal Code was enacted, rebellion was
carried out only with bolos and spears; hence, national Elements of piracy
security was not really threatened. Now, the threat of
rebellion or internal wars is serious as a national threat. 1. The vessel is on the high seas or Philippine
waters;

Article 120. Correspondence with Hostile Country 2. Offenders are neither members of its
complement nor passengers of the vessel;
Elements

1. It is in time of war in which the Philippines is 3. Offenders either –

involved;
a. attack or seize a vessel on the high
2. Offender makes correspondence with an seas or in Philippine waters; or
enemy country or territory occupied by enemy
troops; b. seize in the vessel while on the high
seas or in Philippine waters the whole
3. The correspondence is either – or part of its cargo, its equipment or
personal belongings of its complement
a. prohibited by the government; or passengers;

b. carried on in ciphers or conventional 4. There is intent to gain.

signs; or

c. containing notice or information which Originally, the crimes of piracy and mutiny can only be
might be useful to the enemy. committed in the high seas, that is, outside Philippine
territorial waters. But in August 1974, Presidential
Decree No. 532 (The Anti-Piracy and Anti-Highway
Article 121. Flight to Enemy's Country Robbery Law of 1974) was issued, punishing piracy,
but not mutiny, in Philippine territorial waters. Thus
Elements came about two kinds of piracy: (1) that which is
punished under the Revised Penal Code if committed
1. There is a war in which the Philippines is in the high seas; and (2) that which is punished under
involved; Presidential Decree No. 532 if committed in Philippine
territorial waters.
2. Offender must be owing allegiance to the
government; Amending Article 122, Republic Act No. 7659 included
therein piracy in Philippine waters, thus, pro tanto

3
superseding Presidential Decree No. 532. As a. attack or seize the vessel; or
amended, the article now punishes piracy, as well as
mutiny, whether committed in the high seas or in b. seize the whole or part of the cargo, its
Philippine territorial waters, and the penalty has been equipment, or personal belongings of
increased to reclusion perpetua from reclusion the crew or passengers.
temporal.

But while under Presidential Decree No. 532, piracy in Mutiny is the unlawful resistance to a superior officer,
Philippine waters could be committed by any person, or the raising of commotions and disturbances aboard
including a passenger or member of the complement of a ship against the authority of its commander.
a vessel, under the amended article, piracy can only be
committed by a person who is not a passenger nor Distinction between mutiny and piracy
member of the complement of the vessel irrespective of
venue. So if a passenger or complement of the vessel (1) As to offenders
commits acts of robbery in the high seas, the crime is
robbery, not piracy. Mutiny is committed by members of the
complement or the passengers of the vessel.
Note, however, that in Section 4 of Presidential Decree
No. 532, the act of aiding pirates or abetting piracy is Piracy is committed by persons who are not
penalized as a crime distinct from piracy. Said section members of the complement or the passengers
penalizes any person who knowingly and in any of the vessel.
manner aids or protects pirates, such as giving them
information about the movement of the police or other (2) As to criminal intent
peace officers of the government, or acquires or
receives property taken by such pirates, or in any In mutiny, there is no criminal intent.
manner derives any benefit therefrom; or who directly
or indirectly abets the commission of piracy. Also, it is In piracy, the criminal intent is for gain.
expressly provided in the same section that the
offender shall be considered as an accomplice of the
principal offenders and punished in accordance with Article 123. Qualified Piracy
the Revised Penal Code. This provision of Presidential
Decree No. 532 with respect to piracy in Philippine Elements
water has not been incorporated in the Revised Penal
Code. Neither may it be considered repealed by 1. The vessel is on the high seas or Philippine
Republic Act No. 7659 since there is nothing in the waters:
amendatory law is inconsistent with said section.
Apparently, there is still the crime of abetting piracy in 2. Offenders may or may not be members of its
Philippine waters under Presidential Decree No. 532. complement, or passengers of the vessel;
Considering that the essence of piracy is one of
robbery, any taking in a vessel with force upon things 3. Offenders either –
or with violence or intimidation against person is
employed will always be piracy. It cannot co-exist with a. attack or seize the vessel; or
the crime of robbery. Robbery, therefore, cannot be
committed on board a vessel. But if the taking is b. seize the whole or part of the cargo, its
without violence or intimidation on persons of force equipment., or personal belongings of
upon things, the crime of piracy cannot be committed, the crew or passengers;
but only theft.
4. The preceding were committed under any of
the following circumstances:
Questions & Answers a. whenever they have seized a vessel by
boarding or firing upon the same;
Could theft be committed on board a vessel?
b. whenever the pirates have abandoned
Yes. The essence of piracy is one of robbery. their victims without means of saving
themselves; or

Elements of mutiny c. whenever the crime is accompanied by

murder, homicide, physical injuries or
1. The vessel is on the high seas or Philippine rape.
waters;
If any of the circumstances in Article123 is present,
2. Offenders are either members of its
piracy is qualified. Take note of the specific crimes
complement, or passengers of the vessel; involve in number 4 c (murder, homicide, physical
injuries or rape). When any of these crimes
3. Offenders either – accompany piracy, there is no complex crime. Instead,
there is only one crime committed – qualified piracy.

4
Murder, rape, homicide, physical injuries are mere nature pyro-techniques. Destruction of property with
circumstances qualifying piracy and cannot be the use of pyro-technique is destructive arson. If there
punished as separate crimes, nor can they be is illegally possessed or carried firearm, other special
complexed with piracy. laws will apply.

Although in Article 123 merely refers to qualified piracy, On the other hand, if the aircraft is of foreign registry,
there is also the crime of qualified mutiny. Mutiny is the law does not require that it be in flight before the
qualified under the following circumstances: anti hi-jacking law can apply. This is because aircrafts
of foreign registry are considered in transit while they
(1) When the offenders abandoned the victims are in foreign countries. Although they may have been
without means of saving themselves; or in a foreign country, technically they are still in flight,
because they have to move out of that foreign country.
(2) When the mutiny is accompanied by rape, So even if any of the acts mentioned were committed
murder, homicide, or physical injuries. while the exterior doors of the foreign aircraft were still
open, the anti hi-jacking law will already govern.
Note that the first circumstance which qualifies piracy
does not apply to mutiny. 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
Republic Act No. 6235 (The Anti Hi-Jacking Law) the doors are closed to bring the aircraft to the hangar,
the aircraft is not considered as in flight. The aircraft
Anti hi-jacking is another kind of piracy which is shall be deemed to be already in flight even if its engine
committed in an aircraft. In other countries, this crime is has not yet been started.
known as aircraft piracy.

Four situations governed by anti hi-jacking law:

Questions & Answers
(1) usurping or seizing control of an aircraft of
Philippine registry while it is in flight, compelling 1. The pilots of the Pan Am aircraft were
the pilots thereof to change the course or accosted by some armed men and were told to proceed
destination of the aircraft; to the aircraft to fly it to a foreign destination. The
armed men walked with the pilots and went on board
(2) usurping or seizing control of an aircraft of the aircraft. But before they could do anything on the
foreign registry while within Philippine territory, aircraft, alert marshals arrested them. What crime was
compelling the pilots thereof to land in any part committed?
of Philippine territory;
The criminal intent definitely is to take control of
(3) carrying or loading on board an aircraft the aircraft, which is hi-jacking. It is a question now of
operating as a public utility passenger aircraft whether the anti-hi-jacking law shall govern.
in the Philippines, any flammable, corrosive,
explosive, or poisonous substance; and The anti hi-jacking law is applicable in this
case. Even if the aircraft is not yet about to fly, the
(4) loading, shipping, or transporting on board a requirement that it be in flight does not hold true when
cargo aircraft operating as a public utility in the in comes to aircraft of foreign registry. Even if the
Philippines, any flammable, corrosive, problem does not say that all exterior doors are closed,
explosive, or poisonous substance if this was the crime is hi-jacking. Since the aircraft is of foreign
done not in accordance with the rules and registry, under the law, simply usurping or seizing
regulations set and promulgated by the Air control is enough as long as the aircraft is within
Transportation Office on this matter. Philippine territory, without the requirement that it be in
flight.
Between numbers 1 and 2, the point of distinction is
whether the aircraft is of Philippine registry or foreign Note, however, that there is no hi-jacking in the
registry. The common bar question on this law usually attempted stage. This is a special law where the
involves number 1. The important thing is that before attempted stage is not punishable.
the anti hi-jacking law can apply, the aircraft must be in
flight. If not in flight, whatever crimes committed shall 2. A Philippine Air Lines aircraft is bound
be governed by the Revised Penal Code. The law for Davao. While the pilot and co-pilot are taking their
makes a distinction between aircraft of a foreign snacks at the airport lounge, some of the armed men
registry and of Philippine registry. If the aircraft subject were also there. The pilots were followed by these men
of the hi-jack is of Philippine registry, it should be in on their way to the aircraft. As soon as the pilots
flight at the time of the hi-jacking. Otherwise, the anti hi- entered the cockpit, they pulled out their firearms and
jacking law will not apply and the crime is still punished gave instructions where to fly the aircraft. Does the anti
under the Revised Penal Code. The correlative crime hi-jacking law apply?
may be one of grave coercion or grave threat. If
somebody is killed, the crime is homicide or murder, as No. The passengers have yet to board the
the case may be. If there are some explosives carried aircraft. If at that time, the offenders are apprehended,
there, the crime is destructive arson. Explosives are by

5
the law will not apply because the aircraft is not yet in Such acts would not constitute another crime. So the
flight. Note that the aircraft is of Philippine registry. killing or explosion will only qualify the penalty to a
higher one.
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
Questions & Answers
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 1. In the course of the hi-jack, a
aircraft towards the Middle East, the offenders were passenger or complement was shot and killed. What
subdued and the aircraft landed. What crime was crime or crimes were committed?
committed?
The crime remains to be a violation of the anti
The aircraft was not yet in flight. Considering hi-jacking law, but the penalty thereof shall be higher
that the stewardess was still waiting for the passenger because a passenger or complement of the aircraft had
manifest, the doors were still open. Hence, the anti hi- been killed. The crime of homicide or murder is not
jacking law is not applicable. Instead, the Revised committed.
Penal Code shall govern. The crime committed was
grave coercion or grave threat, depending upon 2. The hi-jackers threatened to detonate a
whether or not any serious offense violence was bomb in the course of the hi-jack. What crime or crimes
inflicted upon the pilot. were committed?

However, if the aircraft were of foreign registry, Again, the crime is violation of the anti hi-
the act would already be subject to the anti hi-jacking jacking law. The separate crime of grave threat is not
law because there is no requirement for foreign aircraft committed. This is considered as a qualifying
to be in flight before such law would apply. The reason circumstance that shall serve to increase the penalty.
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. TITLE II. CRIMES AGAINST THE FUNDAMENTAL
LAWS OF THE STATE

As to numbers 3 and 4 of Republic Act No. 6235, the

distinction is whether the aircraft is a passenger aircraft Crimes against the fundamental laws of the State
or a cargo aircraft. In both cases, however, the law
applies only to public utility aircraft in the Philippines. 1. Arbitrary detention (Art. 124);
Private aircrafts are not subject to the anti hi-jacking
law, in so far as transporting prohibited substances are 2. Delay in the delivery of detained persons to the
concerned. proper judicial authorities (Art. 125);

If the aircraft is a passenger aircraft, the prohibition is 3. Delaying release (Art. 126);
absolute. Carrying of any prohibited, flammable,
corrosive, or explosive substance is a crime under 4. Expulsion (Art. 127);
Republic Act No. 6235. But if the aircraft is only a
cargo aircraft, the law is violated only when the 5. Violation of domicile (Art. 128);
transporting of the prohibited substance was not done
in accordance with the rules and regulations prescribed 6. Search warrants maliciously obtained and
by the Air Transportation Office in the matter of abuse in the service of those legally obtained
shipment of such things. The Board of Transportation (Art. 129);
provides the manner of packing of such kind of articles,
the quantity in which they may be loaded at any time, 7. Searching domicile without witnesses (Art.
etc. Otherwise, the anti hi-jacking law does not apply. 130);

However, under Section 7, any physical injury or 8. Prohibition, interruption, and dissolution of
damage to property which would result from the peaceful meetings (Art. 131);
carrying or loading of the flammable, corrosive,
explosive, or poisonous substance in an aircraft, the 9. Interruption of religious worship (Art. 132); and
offender shall be prosecuted not only for violation of
Republic Act No. 6235, but also for the crime of 10. Offending the religious feelings (Art. 133);
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 Crimes under this title are those which violate the Bill of
crime of physical injuries will be absorbed. If the Rights accorded to the citizens under the Constitution.
explosives were planted in the aircraft to blow up the Under this title, the offenders are public officers, except
aircraft, the circumstance will qualify the penalty and as to the last crime – offending the religious feelings
that is not punishable as a separate crime for murder. under Article 133, which refers to any person. The
The penalty is increased under the anti hi-jacking law. public officers who may be held liable are only those
acting under supposed exercise of official functions,
All other acts outside of the four are merely qualifying albeit illegally.
circumstances and would bring about higher penalty.

6
In its counterpart in Title IX (Crimes Against Personal The principal offender is a private person. But
Liberty and Security), the offenders are private a public officer can commit the crime of illegal
persons. But private persons may also be liable under detention when he is acting in a private
this title as when a private person conspires with a capacity or beyond the scope of his official
public officer. What is required is that the principal duty, or when he becomes an accomplice or
offender must be a public officer. Thus, if a private accessory to the crime committed by a private
person conspires with a public officer, or becomes an person.
accessory or accomplice, the private person also
becomes liable for the same crime. But a private The offender, even if he is a public officer, does
person acting alone cannot commit the crimes under not include as his function the power to arrest
Article 124 to 132 of this title. and detain a person, unless he conspires with
a public officer committing arbitrary detention.

Article 124. Arbitrary Detention Note that in the crime of arbitrary detention, although
the offender is a public officer, not any public officer
Elements can commit this crime. Only those public officers whose
official duties carry with it the authority to make an
1. Offender is a public officer or employee; arrest and detain persons can be guilty of this crime.
So, if the offender does not possess such authority, the
2. He detains a person; crime committed by him is illegal detention. A public
officer who is acting outside the scope of his official
3. The detention is without legal grounds. duties is no better than a private citizen.

Meaning of absence of legal grounds

Questions & Answers
1. No crime was committed by the detained;
1. A janitor at the Quezon City Hall was
2. There is no violent insanity of the detained assigned in cleaning the men’s room. One day, he
person; and noticed a fellow urinating so carelessly that instead of
urinating at the bowl, he was actually urinating partly on
3. The person detained has no ailment which the floor. The janitor resented this. He stepped out of
requires compulsory confinement in a hospital. the men’s room and locked the same. He left. The
fellow was able to come out only after several hours
when people from the outside forcibly opened the door.
The crime of arbitrary detention assumes several Is the janitor liable for arbitrary detention?
forms:
No. Even if he is a public officer, he is not
(1) Detaining a person without legal grounds permitted by his official function to arrest and detain
under; persons. Therefore, he is guilty only of illegal
detention. While the offender is a public officer, his
(2) Having arrested the offended party for legal duty does not include the authority to make arrest;
grounds but without warrant of arrest, and the hence, the crime committed is illegal detention.
public officer does not deliver the arrested
person to the proper judicial authority within the 2. A municipal treasurer has been
period of 12, 18, or 36 hours, as the case may courting his secretary. However, the latter always
be; or turned him down. Thereafter, she tried to avoid him.
One afternoon, the municipal treasurer locked the
(3) Delaying release by competent authority with secretary inside their office until she started crying. The
the same period mentioned in number 2. treasurer opened the door and allowed her to go home.
What crime was committed?
Distinction between arbitrary detention and illegal
detention Illegal detention. This is because the municipal
treasurer has no authority to detain a person although
1. In arbitrary detention -- he is a public officer.

The principal offender must be a public officer.

Civilians can commit the crime of arbitrary In a case decided by the Supreme Court a Barangay
detention except when they conspire with a Chairman who unlawfully detains another was held to
public officer committing this crime, or become be guilty of the crime of arbitrary detention. This is
an accomplice or accessory to the crime because he is a person in authority vested with the
committed by the public officer; and jurisdiction to maintain peace and order within his
barangay. In the maintenance of such peace and
The offender who is a public officer has a duty order, he may cause the arrest and detention of
which carries with it the authority to detain a troublemakers or those who disturb the peace and
person. order within his barangay. But if the legal basis for the
apprehension and detention does not exist, then the
2. In illegal detention -- detention becomes arbitrary.

7
Whether the crime is arbitrary detention or illegal
detention, it is necessary that there must be an actual Arbitrary detention. The arrest of B was only
restraint of liberty of the offended party. If there is no incidental to the criminal intent of the offender to detain
actual restraint, as the offended party may still go to the him. But if after putting B inside the cell, he was turned
place where he wants to go, even though there have over to the investigating officer who booked him and
been warnings, the crime of arbitrary detention or illegal filed a charge of reckless imprudence against him, then
detention is not committed. There is either grave or the crime would be unlawful arrest. The detention of
light threat. the driver is incidental to the supposed crime he did not
commit. But if there is no supposed crime at all
However, if the victim is under guard in his movement because the driver was not charged at all, he was not
such that there is still restraint of liberty, then the crime given place under booking sheet or report arrest, then
of either arbitrary or illegal detention is still committed. that means that the only purpose of the offender is to
stop him from driving his jeepney because he refused
to contribute to the tong.
Question & Answer
Article 125. Delay in the Delivery of Detained
The offended party was brought to a place Persons to the Proper Judicial Authorities
which he could not leave because he does not know
where he is, although free to move about. Was Elements
arbitrary or illegal detention committed?
1. Offender is a public officer or employee;
Either arbitrary detention or illegal detention
was committed. If a person is brought to a safe house, 2. He detains a person for some legal ground;
blindfolded, even if he is free to move as he pleases,
but if he cannot leave the place, arbitrary detention or
illegal detention is committed.
3. He fails to deliver such person to the proper
judicial authorities within –

Distinction between arbitrary detention and unlawful a. 12 hour for light penalties;
arrest
b. 18 hours for correctional penalties; and
(1) As to offender
c. 36 hours for afflictive or capital penalties.
In arbitrary detention, the offender is a public
officer possessed with authority to make
arrests. This is a form of arbitrary detention. At the beginning,
the detention is legal since it is in the pursuance of a
In unlawful arrest, the offender may be any lawful arrest. However, the detention becomes
person. arbitrary when the period thereof exceeds 12, 18 or 36
hours, as the case may be, depending on whether the
(2) As to criminal intent crime is punished by light, correctional or afflictive
penalty or their equivalent.
In arbitrary detention, the main reason for
detaining the offended party is to deny him of The period of detention is 12 hours for light offenses,
his liberty. 18 hours for correctional offences and 36 hours for
afflictive offences, where the accused may be detained
In unlawful arrest, the purpose is to accuse the without formal charge. But he must cause a formal
offended party of a crime he did not commit, to charge or application to be filed with the proper court
deliver the person to the proper authority, and before 12, 18 or 36 hours lapse. Otherwise he has to
to file the necessary charges in a way trying to release the person arrested.
incriminate him.
Note that the period stated herein does not include the
When a person is unlawfully arrested, his subsequent nighttime. It is to be counted only when the
detention is without legal grounds. prosecutor’s office is ready to receive the complaint or
information.

This article does not apply if the arrest is with a

Question & Answer warrant. The situation contemplated here is an arrest
without a warrant.
A had been collecting tong from drivers. B, a
driver, did not want to contribute to the tong. One day,
B was apprehended by A, telling him that he was Question & Answer
driving carelessly. Reckless driving carries with it a
penalty of immediate detention and arrest. B was
brought to the Traffic Bureau and was detained there Within what period should a police officer who
until the evening. When A returned, he opened the cell has arrested a person under a warrant of arrest turn
and told B to go home. Was there a crime of arbitrary over the arrested person to the judicial authority?
detention or unlawful arrest?

8
 There is no time limit specified except that the not be brought to Manila until three days later. Was
return must be made within a reasonable time. The there a violation of Article 125?
period fixed by law under Article 125 does not apply
because the arrest was made by virtue of a warrant of There was a violation of Article 125. The crime
arrest. committed was arbitrary detention in the form of delay
in the delivery of arrested person to the proper judicial
authority. The typhoon or flood is a matter of defense
When a person is arrested without a warrant, it means to be proved by the accused, the arresting officer, as to
that there is no case filed in court yet. If the arresting whether he is liable. In this situation, he may be
officer would hold the arrested person there, he is exempt under paragraph 7 of Article 12.
actually depriving the arrested of his right to bail. As
long as there is no charge in the court yet, the arrested
person cannot obtain bail because bail may only be Before Article 125 may be applied, it is necessary that
granted by the court. The spirit of the law is to have the initially, the detention of the arrested person must be
arrested person delivered to the jurisdiction of the lawful because the arrest is based on legal grounds. If
court. the arrest is made without a warrant, this constitutes an
unlawful arrest. Article 269, not Article 125, will apply.
If the arrest is by virtue of a warrant, it means that there If the arrest is not based on legal grounds, the arrest is
is already a case filed in court. When an information is pure and simple arbitrary detention. Article 125
filed in court, the amount of bail recommended is contemplates a situation where the arrest was made
stated. The accused person is not really denied his without warrant but based on legal grounds. This is
right to bail. Even if he is interrogated in the police known as citizen’s arrest.
precinct, he can already file bail.

Note that delivery of the arrested person to the proper Article 126. Delaying Release
authorities does not mean physical delivery or turn over
of arrested person to the court. It simply means putting Acts punished
the arrested person under the jurisdiction of the court.
This is done by filing the necessary complaint or 1. Delaying the performance of a judicial or
information against the person arrested in court within executive order for the release of a prisoner;
the period specified in Article 125. The purpose of this
is for the court to determine whether the offense is 2. Unduly delaying the service of the notice of
bailable or not and if bailable, to allow him the right to such order to said prisoner;
bail.
3. Unduly delaying the proceedings upon any
Under the Rule 114 of the Revised Rules of Court, the petition for the liberation of such person.
arrested person can demand from the arresting officer
to bring him to any judge in the place where he was
arrested and post the bail here. Thereupon, the Elements
arresting officer may release him. The judge who
granted the bail will just forward the litimus of the case 1. Offender is a public officer or employee;
to the court trying his case. The purpose is in order to
deprive the arrested person of his right to post the bail. 2. There is a judicial or executive order for the
release of a prisoner or detention prisoner, or
Under the Revised Rules of Court, when the person that there is a proceeding upon a petition for
arrested is arrested for a crime which gives him the the liberation of such person;
right to preliminary investigation and he wants to avail
his right to a preliminary investigation, he would have to 3. Offender without good reason delays –
waive in writing his rights under Article 125 so that the
arresting officer will not immediately file the case with a. the service of the notice of such order
the court that will exercise jurisdiction over the case. If to the prisoner;
he does not want to waive this in writing, the arresting
officer will have to comply with Article 125 and file the b. the performance of such judicial or
case immediately in court without preliminary executive order for the release of the
investigation. In such case, the arrested person, within prisoner; or
five days after learning that the case has been filed in
court without preliminary investigation, may ask for c. the proceedings upon a petition for the
preliminary investigation. In this case, the public officer release of such person.
who made the arrest will no longer be liable for violation
of Article 125.
Article 127. Expulsion

Acts punished
Question & Answer
1. Expelling a person from the Philippines;
The arrest of the suspect was done in Baguio
City. On the way to Manila, where the crime was 2. Compelling a person to change his residence.
committed, there was a typhoon so the suspect could

9
Elements Circumstances qualifying the offense

1. Offender is a public officer or employee; 1. If committed at nighttime; or

2. He either – 2. If any papers or effects not constituting

evidence of a crime are not returned
immediately after the search made by offender.
a. expels any person from the Philippines;
or
Under Title IX (Crimes against Personal Liberty and
b. compels a person to change residence;
Security), the corresponding article is qualified trespass
to dwelling under Article 280. Article 128 is limited to
3. Offender is not authorized to do so by law. public officers. The public officers who may be liable
for crimes against the fundamental laws are those who
are possessed of the authority to execute search
The essence of this crime is coercion but the specific warrants and warrants of arrests.
crime is “expulsion” when committed by a public officer.
If committed by a private person, the crime is grave Under Rule 113 of the Revised Rules of Court, when a
coercion. person to be arrested enters a premise and closes it
In Villavicencio v. Lukban, 39 Phil 778, the mayor of thereafter, the public officer, after giving notice of an
the City of Manila wanted to make the city free from arrest, can break into the premise. He shall not be
prostitution. He ordered certain prostitutes to be liable for violation of domicile.
transferred to Davao, without observing due processes
since they have not been charged with any crime at all. There are only three recognized instances when search
It was held that the crime committed was expulsion. 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
Questions & Answers seized would not be admissible in evidence.

(1) Search made incidental to a valid arrest;

1. Certain aliens were arrested and they
were just put on the first aircraft which brought them to (2) Where the search was made on a moving
the country so that they may be out without due vehicle or vessel such that the exigency of he
process of law. Was there a crime committed? situation prevents the searching officer from
securing a search warrant;
Yes. Expulsion.
(3) When the article seized is within plain view of
2. If a Filipino citizen is sent out of the the officer making the seizure without making a
country, what crime is committed? search therefore.
Grave coercion, not expulsion, because a There are three ways of committing the violation of
Filipino cannot be deported. This crime refers only to Article 128:
aliens.
(1) By simply entering the dwelling of another if
such entering is done against the will of the
Article 128. Violation of Domicile occupant. In the plain view doctrine, public
officer should be legally entitled to be in the
Acts punished place where the effects were found. If he
entered the place illegally and he saw the
1. Entering any dwelling against the will of the effects, doctrine inapplicable; thus, he is liable
owner thereof; for violation of domicile.
2. Searching papers or other effects found therein (2) Public officer who enters with consent searches
without the previous consent of such owner; or for paper and effects without the consent of the
owner. Even if he is welcome in the dwelling, it
3. Refusing to leave the premises, after having does not mean he has permission to search.
surreptitiously entered said dwelling and after
having been required to leave the same (3) Refusing to leave premises after surreptitious
entry and being told to leave the same. The
act punished is not the entry but the refusal to
Common elements leave. If the offender upon being directed to
eave, followed and left, there is no crime of
1. Offender is a public officer or employee; violation of domicile. Entry must be done
surreptitiously; without this, crime may be
2. He is not authorized by judicial order to enter unjust vexation. But if entering was done
the dwelling or to make a search therein for against the will of the occupant of the house,
papers or other effects. meaning there was express or implied
prohibition from entering the same, even if the
occupant does not direct him to leave, the

10
 crime of is already committed because it would 2. He is armed with search warrant legally
fall in number 1. procured;

3. He searches the domicile, papers or other

belongings of any person;
Questions & Answers
4. The owner, or any members of his family, or
1. It was raining heavily. A policeman two witnesses residing in the same locality are
took shelter in one person’s house. The owner obliged not present.
and had his daughter serve the police some coffee.
The policeman made a pass at the daughter. The
owner of the house asked him to leave. Does this fall Crimes under Articles 129 and 130 are referred to as
under Article 128? violation of domicile. In these articles, the search is
made by virtue of a valid warrant, but the warrant
No. It was the owner of the house who let the notwithstanding, the liability for the crime is still incurred
policeman in. The entering is not surreptitious. through the following situations:

2. A person surreptitiously enters the (1) Search warrant was irregularly obtained – This
dwelling of another. What crime or crimes were means there was no probable cause
possibly committed? determined in obtaining the search warrant.
Although void, the search warrant is entitled to
The crimes committed are (1) qualified respect because of presumption of regularity.
trespass to dwelling under Article 280, if there was an One remedy is a motion to quash the search
express or implied prohibition against entering. This is warrant, not refusal to abide by it. The public
tantamount to entering against the will of the owner; officer may also be prosecuted for perjury,
and (2) violation of domicile in the third form if he because for him to succeed in obtaining a
refuses to leave after being told to. search warrant without a probable cause, he
must have perjured himself or induced
someone to commit perjury to convince the
Article 129. Search Warrants Maliciously Obtained, court.
and Abuse in the Service of Those Legally Obtained
(2) The officer exceeded his authority under the
Acts punished warrant – To illustrate, let us say that there was
a pusher in a condo unit. The PNP Narcotics
1. Procuring a search warrant without just cause; Group obtained a search warrant but the name
of person in the search warrant did not tally
Elements with the address stated. Eventually, the person
with the same name was found but in a
1. Offender is a public officer or different address. The occupant resisted but
employee; the public officer insisted on the search. Drugs
were found and seized and occupant was
2. He procures a search warrant; prosecuted and convicted by the trial court.
The Supreme Court acquitted him because the
3. There is no just cause. public officers are required to follow the search
warrant to the letter. They have no discretion
on the matter. Plain view doctrine is
2. Exceeding his authority or by using inapplicable since it presupposes that the
unnecessary severity in executing a search officer was legally entitled to be in the place
warrant legally procured. where the effects where found. Since the entry
was illegal, plain view doctrine does not apply.
Elements
(3) When the public officer employs unnecessary
1. Offender is a public officer or or excessive severity in the implementation of
employee; the search warrant. The search warrant is not a
license to commit destruction.
2. He has legally procured a search
warrant; (4) Owner of dwelling or any member of the family
was absent, or two witnesses residing within
3. He exceeds his authority or uses the same locality were not present during the
unnecessary severity in executing the search.
same.

Article 131. Prohibition, Interruption, and

Article 130. Searching Domicile without Witnesses Dissolution of Peaceful Meetings

Elements Elements

1. Offender is a public officer or employee; Offender is a public officer or employee;

11
He performs any of the following acts: dissolves the same, Article 153 is violated if the
same is conducted in a public place.
a. prohibiting or by interrupting, without
legal ground, the holding of a peaceful (2) As to the essence of the crime
meeting, or by dissolving the same;
In Article 131, the offender must be a public
b. hindering any person from joining any officer and, without any legal ground, he
lawful association, or attending any of prohibits, interrupts, or dissolves a peaceful
its meetings; meeting or assembly to prevent the offended
party from exercising his freedom of speech
c. prohibiting or hindering any person and that of the assembly to petition a grievance
from addressing, either alone or against the government.
together with others, any petition to the
authorities for the correction of abuses In Article 153, the offender need not be a public
or redress of grievances. 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
The government has a right to require a permit before place where a public function is being held.
any gathering could be made. Any meeting without a
permit is a proceeding in violation of the law. That
being true, a meeting may be prohibited, interrupted, or Article 132. Interruption of Religious Worship
dissolved without violating Article 131 of the Revised
Penal Code. Elements

But the requiring of the permit shall be in exercise only 1. Offender is a public officer or employee;
of the government’s regulatory powers and not really to
prevent peaceful assemblies as the public may desire. 2. Religious ceremonies or manifestations of any
Permit is only necessary to regulate the peace so as religious are about to take place or are going
not to inconvenience the public. The permit should on;
state the day, time and the place where the gathering
may be held. This requirement is, therefore, legal as 3. Offender prevents or disturbs the same.
long as it is not being exercised in as a prohibitory
power. Qualified if committed by violence or threat.

If the permit is denied arbitrarily, Article 131 is violated.

If the officer would not give the permit unless the Article 133. Offending the Religious Feelings
meeting is held in a particular place which he dictates
defeats the exercise of the right to peaceably Elements
assemble, Article 131 is violated.
1. Acts complained of were performed in a place
At the beginning, it may happen that the assembly is devoted to religious worship, or during the
lawful and peaceful. If in the course of the assembly celebration of any religious ceremony;
the participants commit illegal acts like oral defamation
or inciting to sedition, a public officer or law enforcer 2. The acts must be notoriously offensive to the
can stop or dissolve the meeting. The permit given is feelings of the faithful.
not a license to commit a crime.
There must be deliberate intent to hurt the feelings of
There are two criteria to determine whether Article 131 the faithful.
would be violated:

(1) Dangerous tendency rule – applicable in times TITLE III. CRIMES AGAINST PUBLIC ORDER
of national unrest such as to prevent coup
d’etat.
Crimes against public order
(2) Clear and present danger rule – applied in
times of peace. Stricter rule. 1. Rebellion or insurrection (Art. 134);

Distinctions between prohibition, interruption, or 2. Conspiracy and proposal to commit rebellion

dissolution of peaceful meetings under Article 131, and (Art. 136);
tumults and other disturbances, under Article 153
3. Disloyalty to public officers or employees (Art.
(1) As to the participation of the public officer 137);

In Article 131, the public officer is not a 4. Inciting to rebellion (Art. 138);
participant. As far as the gathering is
concerned, the public officer is a third party. 5. Sedition (Art. 139);

If the public officer is a participant of the 6. Conspiracy to commit sedition (Art. 141);
assembly and he prohibits, interrupts, or

12
7. Inciting to sedition (Art. 142); The essence of this crime is a public uprising with the
taking up of arms. It requires a multitude of people. It
8. Acts tending to prevent the meeting of aims to overthrow the duly constituted government. It
Congress and similar bodies (Art. 143); does not require the participation of any member of the
military or national police organization or public officers
9. Disturbance of proceedings of Congress or and generally carried out by civilians. Lastly, the crime
similar bodies (Art. 144); can only be committed through force and violence.

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

Rebellion and insurrection are not synonymous.
11. Illegal assemblies (Art. 146); Rebellion is more frequently used where the object of
the movement is completely to overthrow and
12. Illegal associations (Art. 147); supersede the existing government; while insurrection
is more commonly employed in reference to a
13. Direct assaults (Art. 148); movement which seeks merely to effect some change
of minor importance, or to prevent the exercise of
14. Indirect assaults (Art. 149); governmental authority with respect to particular
matters of subjects (Reyes, citing 30 Am. Jr. 1).
15. Disobedience to summons issued by Congress,
its committees, etc., by the constitutional
commissions, its committees, etc. (Art. 150); Rebellion can now be complexed with common crimes.
Not long ago, the Supreme Court, in Enrile v.
16. Resistance and disobedience to a person in Salazar, 186 SCRA 217, reiterated and affirmed
authority or the agents of such person (Art. the rule laid down in People v. Hernandez, 99
151); Phil 515, that rebellion may not be complexed
with common crimes which are committed in
17. Tumults and other disturbances of public order furtherance thereof because they are absorbed
(Art. 153); in rebellion. In view of said reaffirmation, some
believe that it has been a settled doctrine that
18. Unlawful use of means of publication and rebellion cannot be complexed with common
unlawful utterances (Art. 154); crimes, such as killing and destruction of
property, committed on the occasion and in
19. Alarms and scandals (Art. 155); furtherance thereof.

20. Delivering prisoners from jails (Art. 156); This thinking is no longer correct; there is no legal basis
for such rule now.
21. Evasion of service of sentence (Art. 157);
The statement in People v. Hernandez that common
22. Evasion on occasion of disorders (Art. 158); crimes committed in furtherance of rebellion are
absorbed by the crime of rebellion, was dictated by the
23. Violation of conditional pardon (Art. 159); and provision of Article 135 of the Revised Penal Code prior
to its amendment by the Republic Act No. 6968 (An Act
24. Commission of another crime during service of Punishing the Crime of Coup D’etat), which became
penalty imposed for another previous offense effective on October 1990. Prior to its amendment by
(Art. 160). 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
Article 134. Rebellion or Insurrection against the forces of Government; destroying property;
committing serious violence; exacting contributions,
Elements diverting funds for the lawful purpose for which they
have been appropriated.
1. There is a public uprising and taking arms
against the government; Since a higher penalty is prescribed for the crime of
rebellion when any of the specified acts are committed
2. The purpose of the uprising or movement is – in furtherance thereof, said acts are punished as
components of rebellion and, therefore, are not to be
a. to remove from the allegiance to the treated as distinct crimes. The same acts constitute
government or its laws Philippine distinct crimes when committed on a different occasion
territory or any part thereof, or any and not in furtherance of rebellion. In short, it was
body of land, naval, or other armed because Article 135 then punished said acts as
forces; components of the crime of rebellion that precludes the
application of Article 48 of the Revised Penal Code
or thereto. In the eyes of the law then, said acts
constitute only one crime and that is rebellion. The
b. to deprive the Chief Executive or Hernandez doctrine was reaffirmed in Enrile v. Salazar
Congress, wholly or partially, of any of because the text of Article 135 has remained the same
their powers or prerogatives. 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:

13
 In People v. de Gracia, it was ruled that illegal
“There is a an apparent need to restructure the law on possession of firearm in furtherance of rebellion
rebellion, either to raise the penalty therefore or to under Presidential Decree No. 1866 is distinct
clearly define and delimit the other offenses to be from the crime of rebellion under the Revised
considered absorbed thereby, so that it cannot be Penal Code and, therefore, Article 135 (2) of
conveniently utilized as the umbrella for every sort of the Revised Penal Code should not apply. The
illegal activity undertaken in its name. The court has no offense of illegal possession of firearm is a
power to effect such change, for it can only interpret the malum prohibitum, in which case, good faith
law as it stands at any given time, and what is needed and absence of criminal intent are not valid
lies beyond interpretation. Hopefully, Congress will defenses.
perceive the need for promptly seizing the initiative in
this matter, which is purely within its province.” In People v. Lobedioro, an NPA cadre killed a
policeman and was convicted for murder. He appealed
Obviously, Congress took notice of this pronouncement invoking rebellion. The Supreme Court found that there
and, thus, in enacting Republic Act No. 6968, it did not was no evidence shown to further the end of the NPA
only provide for the crime of coup d’etat in the Revised movement. It held that there must be evidence shown
Penal Code but moreover, deleted from the provision of that the act furthered the cause of the NPA; it is not
Article 135 that portion referring to those – enough to say it.

“…who, while holding any public office or employment Rebellion may be committed even without a single shot
takes part therein [rebellion or insurrection], engaging being fired. No encounter needed. Mere public
in war against the forces of government, destroying uprising with arms enough.
property or committing serious violence, exacting
contributions or diverting public funds from the lawful Article 135, as amended, has two penalties: a higher
purpose for which they have been appropriated …” penalty for the promoters, heads and maintainers of the
rebellion; and a lower penalty for those who are only
Hence, overt acts which used to be punished as followers of the rebellion.
components of the crime of rebellion have been
severed therefrom by Republic Act No. 6968. The legal Distinctions between rebellion and sedition
impediment to the application of Article 48 to rebellion
has been removed. After the amendment, common (1) As to nature
crimes involving killings, and/or destructions of
property, even though committed by rebels in In rebellion, there must be taking up or arms
furtherance of rebellion, shall bring about complex against the government.
crimes of rebellion with murder/homicide, or rebellion
with robbery, or rebellion with arson as the case may In sedition, it is sufficient that the public
be. uprising be tumultuous.

To reiterate, before Article 135 was amended, a higher (2) As to purpose

penalty is imposed when the offender engages in war
against the government. "War" connotes anything In rebellion, the purpose is always political.
which may be carried out in pursuance of war. This
implies that all acts of war or hostilities like serious In sedition, the purpose may be political or
violence and destruction of property committed on social. Example: the uprising of squatters
occasion and in pursuance of rebellion are component against Forbes park residents. The purpose in
crimes of rebellion which is why Article 48 on complex sedition is to go against established
crimes is inapplicable. In amending Article135, the acts government, not to overthrow it.
which used to be component crimes of rebellion, like
serious acts of violence, have been deleted. These are When any of the objectives of rebellion is pursued but
now distinct crimes. The legal obstacle for the there is no public uprising in the legal sense, the crime
application of Article 48, therefore, has been removed. is direct assault of the first form. But if there is
Ortega says legislators want to punish these common rebellion, with public uprising, direct assault cannot be
crimes independently of rebellion. Ortega cites no case committed.
overturning Enrile v. Salazar.

In People v. Rodriguez, 107 Phil. 569, it was held that Article 134-A. Coup d' etat
an accused already convicted of rebellion may not be
prosecuted further for illegal possession of firearm and Elements
ammunition, a violation of Presidential Decree No.
1866, because this is a necessary element or 1. Offender is a person or persons belonging to
ingredient of the crime of rebellion with which the the military or police or holding any public office
accused was already convicted. or employment;

However, in People v. Tiozon, 198 SCRA 368, it was 2. It is committed by means of a swift attack
held that charging one of illegal possession of firearms accompanied by violence, intimidation, threat,
in furtherance of rebellion is proper because this is not strategy or stealth;
a charge of a complex crime. A crime under the
Revised Penal Code cannot be absorbed by a statutory 3. The attack is directed against the duly
offense. constituted authorities of the Republic of the

14
 Philippines, or any military camp or installation,
communication networks, public utilities or
other facilities needed for the exercise and Article 137. Disloyalty of Public Officers or
continued possession of power; Employees

4. The purpose of the attack is to seize or Acts punished

diminish state power.
1. By failing to resist a rebellion by all the means
in their power;
The essence of the crime is a swift attack upon the
facilities of the Philippine government, military camps 2. By continuing to discharge the duties of their
and installations, communication networks, public offices under the control of the rebels; or
utilities and facilities essential to the continued
possession of governmental powers. It may be 3. By accepting appointment to office under them.
committed singly or collectively and does not require a
multitude of people. The objective may not be to Offender must be a public officer or employee.
overthrow the government but only to destabilize or
paralyze the government through the seizure of
facilities and utilities essential to the continued Article 138. Inciting to Rebellion or Insurrection
possession and exercise of governmental powers. It
requires as principal offender a member of the AFP or Elements
of the PNP organization or a public officer with or
without civilian support. Finally, it may be carried out 1. Offender does not take arms or is not in open
not only by force or violence but also through stealth, hostility against the government;
threat or strategy.
2. He incites others to the execution of any of the
acts of rebellion;
Persons liable for rebellion, insurrection or coup d' etat
under Article 135 3. The inciting is done by means of speeches,
proclamations, writings, emblems, banners or
1. The leaders – other representations tending to the same end.

a. Any person who promotes, maintains

or heads a rebellion or insurrection; or Distinction between inciting to rebellion and proposal to
commit rebellion
b. Any person who leads, directs or
commands others to undertake a coup 1. In both crimes, offender induces another to
d' etat; commit rebellion.

2. The participants – 2. In proposal, the person who proposes has

decided to commit rebellion; in inciting to
a. Any person who participates or rebellion, it is not required that the offender has
executes the commands of others in decided to commit rebellion.
rebellion, insurrection or coup d' etat;
3. In proposal, the person who proposes the
b. Any person not in the government execution of the crime uses secret means; in
service who participates, supports, inciting to rebellion, the act of inciting is done
finances, abets or aids in undertaking a publicly.
coup d' etat.

Article 136. Conspiracy and Proposal to Commit Article 139. Sedition

Coup d' etat, Rebellion or Insurrection
Elements
Conspiracy and proposal to commit rebellion are two
different crimes, namely: 1. Offenders rise publicly and tumultuously;
1. Conspiracy to commit rebellion; and
2. Offenders employ force, intimidation, or other
2. Proposal to commit rebellion. means outside of legal methods;
There is conspiracy to commit rebellion when two or
more persons come to an agreement to rise publicly 3. Purpose is to attain any of the following objects:
and take arms against government for any of the
purposes of rebellion and decide to commit it. a. To prevent the promulgation or
execution of any law or the holding of
There is proposal to commit rebellion when the person any popular election;
who has decided to rise publicly and take arms against
the government for any of the purposes of rebellion b. To prevent the national government or
proposes its execution to some other person or any provincial or municipal
persons. government, or any public officer from
exercising its or his functions or prevent

15
 the execution of an administrative 2. He incites others to the accomplishment of any
order; of the acts which constitute sedition; and

c. To inflict any act of hate or revenge 3. Inciting is done by means of speeches,

upon the person or property of any proclamations, writings, emblems, cartoons,
public officer or employee; banners, or other representations tending
towards the same end.
d. To commit, for any political or social
end, any act of hate or revenge against Only non-participant in sedition may be liable.
private persons or any social classes;
Considering that the objective of sedition is to express
e. To despoil for any political or social protest against the government and in the process
end, any person, municipality or creating hate against public officers, any act that will
province, or the national government of generate hatred against the government or a public
all its property or any part thereof. officer concerned or a social class may amount to
Inciting to sedition. Article 142 is, therefore, quite
broad.
The crime of sedition does not contemplate the taking
up of arms against the government because the The mere meeting for the purpose of discussing hatred
purpose of this crime is not the overthrow of the against the government is inciting to sedition.
government. Notice from the purpose of the crime of Lambasting government officials to discredit the
sedition that the offenders rise publicly and create government is Inciting to sedition. But if the objective
commotion ad disturbance by way of protest to express of such preparatory actions is the overthrow of the
their dissent and obedience to the government or to the government, the crime is inciting to rebellion.
authorities concerned. This is like the so-called civil
disobedience except that the means employed, which
is violence, is illegal. Article 143. Acts Tending to Prevent the Meeting of
the Congress of the Philippines and Similar Bodies

Persons liable for sedition under Article 140 Elements

1. The leader of the sedition; and 1. There is a projected or actual meeting of

Congress or any of its committees or
2. Other person participating in the sedition. subcommittees, constitutional committees or
divisions thereof, or of any provincial board or
city or municipal council or board;
Article 141. Conspiracy to Commit Sedition
2. Offender, who may be any person, prevents
In this crime, there must be an agreement and a such meetings by force or fraud.
decision to rise publicly and tumultuously to attain any
of the objects of sedition.
Article 144. Disturbance of Proceedings
There is no proposal to commit sedition.
Elements

Article 142. Inciting to Sedition 1. There is a meeting of Congress or any of its

committees or subcommittees, constitutional
Acts punished commissions or committees or divisions
thereof, or of any provincial board or city or
1. Inciting others to the accomplishment of any of municipal council or board;
the acts which constitute sedition by means of
speeches, proclamations, writings, emblems, 2. Offender does any of the following acts:
etc.;
a. He disturbs any of such meetings;
2. Uttering seditious words or speeches which
tend to disturb the public peace; b. He behaves while in the presence of
any such bodies in such a manner as
3. Writing, publishing, or circulating scurrilous to interrupt its proceedings or to impair
libels against the government or any of the duly the respect due it.
constituted authorities thereof, which tend to
disturb the public peace.

Elements Article 145. Violation of Parliamentary Immunity

1. Offender does not take direct part in the crime Acts punished
of sedition;
1. Using force, intimidation, threats, or frauds to
prevent any member of Congress from

16
 attending the meetings of Congress or of any of 1. There is a meeting, a gathering or
its committees or subcommittees, constitutional group of persons, whether in fixed
commissions or committees or divisions place or moving;
thereof, or from expressing his opinion or
casting his vote; 2. The meeting is attended by armed
persons;
Elements
3. The purpose of the meeting is to
1. Offender uses force, intimidation, commit any of the crimes punishable
threats or fraud; under the Code.

2. The purpose of the offender is to 2. Any meeting in which the audience, whether
prevent any member of Congress from armed or not, is incited to the commission of
– the crime of treason, rebellion or insurrection,
sedition, or assault upon person in authority or
a. attending the meetings of the his agents.
Congress or of any of its
committees or constitutional 1. There is a meeting, a gathering or
commissions, etc.; group of persons, whether in a fixed
place or moving;
b. expressing his opinion; or
2. The audience, whether armed or not, is
c. casting his vote. incited to the commission of the crime
of treason, rebellion or insurrection,
2. Arresting or searching any member thereof sedition or direct assault.
while Congress is in regular or special session,
except in case such member has committed a
crime punishable under the Code by a penalty Persons liable for illegal assembly
higher than prision mayor.
1. The organizer or leaders of the meeting;
Elements
2. Persons merely present at the meeting, who
1. Offender is a public officer of must have a common intent to commit the
employee; felony of illegal assembly.

2. He arrests or searches any member of If any person present at the meeting carries an
Congress; unlicensed firearm, it is presumed that the purpose of
the meeting insofar as he is concerned is to commit
3. Congress, at the time of arrest or acts punishable under the Revised Penal Code, and he
search, is in regular or special session; is considered a leader or organizer of the meeting.

4. The member arrested or searched has

not committed a crime punishable The gravamen of the offense is mere assembly of or
under the Code by a penalty higher gathering of people for illegal purpose punishable by
than prision mayor. the Revised Penal Code. Without gathering, there is
no illegal assembly. If unlawful purpose is a crime
Under Section 11, Article VI of the Constitution, a public under a special law, there is no illegal assembly. For
officer who arrests a member of Congress who has example, the gathering of drug pushers to facilitate
committed a crime punishable by prision mayor (six drug trafficking is not illegal assembly because the
years and one day, to 12 years) is not liable Article 145. purpose is not violative of the Revised Penal Code but
of The Dangerous Drugs Act of 1972, as amended,
According to Reyes, to be consistent with the which is a special law.
Constitution, the phrase "by a penalty higher than
prision mayor" in Article 145 should be amended to Two forms of illegal assembly
read: "by the penalty of prision mayor or higher."
(1) No attendance of armed men, but persons in
the meeting are incited to commit treason,
Article 146. Illegal Assemblies rebellion or insurrection, sedition or assault
upon a person in authority. When the illegal
Acts punished purpose of the gathering is to incite people to
commit the crimes mentioned above, the
1. Any meeting attended by armed persons for the presence of armed men is unnecessary. The
purpose of committing any of the crimes mere gathering for the purpose is sufficient to
punishable under the Code; bring about the crime already.

Elements (2) Armed men attending the gathering – If the

illegal purpose is other than those mentioned
above, the presence of armed men during the

17
 gathering brings about the crime of illegal
assembly. In illegal assembly, the persons liable are (1)
the organizers or leaders of the meeting and (2)
Example: Persons conspiring to rob a bank the persons present at meeting.
were arrested. Some were with firearms.
Liable for illegal assembly, not for conspiracy,
but for gathering with armed men. Article 148. Direct Assault

Distinction between illegal assembly and illegal Acts punished

association
1. Without public uprising, by employing force or
In illegal assembly, the basis of liability is the gathering intimidation for the attainment of any of the
for an illegal purpose which constitutes a crime under purposes enumerated in defining the crimes of
the Revised Penal Code. rebellion and sedition;

In illegal association, the basis is the formation of or Elements

organization of an association to engage in an unlawful
purpose which is not limited to a violation of the 1. Offender employs force or intimidation;
Revised Penal Code. It includes a violation of a
special law or those against public morals. Meaning of 2. The aim of the offender is to attain any
public morals: inimical to public welfare; it has nothing of the purposes of the crime of rebellion
to do with decency., not acts of obscenity. or any of the objects of the crime of
sedition;

Article 147. Illegal Associations 3. There is no public uprising.

Illegal associations 2. Without public uprising, by attacking, by

employing force or by seriously intimidating or
1. Associations totally or partially organized for by seriously resisting any person in authority or
the purpose of committing any of the crimes any of his agents, while engaged in the
punishable under the Code; performance of official duties, or on occasion of
such performance.
2. Associations totally or partially organized for
some purpose contrary to public morals. Elements

1. Offender makes an attack, employs

Persons liable force, makes a serious intimidation, or
makes a serious resistance;
1. Founders, directors
and president of the association; 2. The person assaulted is a person in
authority or his agent;
2. Mere members of the association.
3. At the time of the assault, the person in
authority or his agent is engaged in the
Distinction between illegal association and illegal actual performance of official duties, or
assembly that he is assaulted by reason of the
past performance of official duties;
1. In illegal association, it is not necessary that
there be an actual meeting. 4. Offender knows that the one he is
assaulting is a person in authority or his
In illegal assembly, it is necessary that there is agent in the exercise of his duties.
an actual meeting or assembly or armed
persons for the purpose of committing any of 5. There is no public uprising.
the crimes punishable under the Code, or of
individuals who, although not armed, are incited
to the commission of treason, rebellion, The crime is not based on the material consequence of
sedition, or assault upon a person in authority the unlawful act. The crime of direct assault punishes
or his agent. the spirit of lawlessness and the contempt or hatred for
the authority or the rule of law.
2. In illegal association, it is the act of forming or
organizing and membership in the association To be specific, if a judge was killed while he was
that are punished. holding a session, the killing is not the direct assault,
but murder. There could be direct assault if the
In illegal assembly, it is the meeting and offender killed the judge simply because the judge is so
attendance at such meeting that are punished. strict in the fulfillment of his duty. It is the spirit of hate
which is the essence of direct assault.
3. In illegal association, the persons liable are (1)
the founders, directors and president; and (2) So, where the spirit is present, it is always complexed
the members. with the material consequence of the unlawful act. If

18
the unlawful act was murder or homicide committed attack, although what may have happened was a
under circumstance of lawlessness or contempt of purely private affair.
authority, the crime would be direct assault with murder
or homicide, as the case may be. In the example of the On the other hand, if the person in authority or the
judge who was killed, the crime is direct assault with agent was killed when no longer performing official
murder or homicide. functions, the crime may simply be the material
consequence of he unlawful act: murder or homicide.
The only time when it is not complexed is when For the crime to be direct assault, the attack must be by
material consequence is a light felony, that is, slight reason of his official function in the past. Motive
physical injury. Direct assault absorbs the lighter becomes important in this respect. Example, if a judge
felony; the crime of direct assault can not be separated was killed while resisting the taking of his watch, there
from the material result of the act. So, if an offender is no direct assault.
who is charged with direct assault and in another court
for the slight physical Injury which is part of the act, In the second form of direct assault, it is also important
acquittal or conviction in one is a bar to the prosecution that the offended party knew that the person he is
in the other. attacking is a person in authority or an agent of a
person in authority, performing his official functions. No
Example of the first form of direct assault: knowledge, no lawlessness or contempt.
For example, if two persons were quarreling and a
Three men broke into a National Food Authority policeman in civilian clothes comes and stops them, but
warehouse and lamented sufferings of the people. one of the protagonists stabs the policeman, there
They called on people to help themselves to all the rice. would be no direct assault unless the offender knew
They did not even help themselves to a single grain. that he is a policeman.

The crime committed was direct assault. There was no In this respect it is enough that the offender should
robbery for there was no intent to gain. The crime is know that the offended party was exercising some form
direct assault by committing acts of sedition under of authority. It is not necessary that the offender knows
Article 139 (5), that is, spoiling of the property, for any what is meant by person in authority or an agent of one
political or social end, of any person municipality or because ignorantia legis non excusat.
province or the national government of all or any its
property, but there is no public uprising.
Article 149. Indirect Assault
Person in authority is any person directly vested with
jurisdiction, whether as an individual or as a Elements
member of some court or government
corporation, board, or commission. A 1. A person in authority or his agent is the victim
barangay chairman is deemed a person in of any of the forms of direct assault defined in
authority. Article 148;

Agent of a person in authority is any person who by 2. A person comes to the aid of such authority or
direct provision of law or by election or by his agent;
appointment by competent authority, is
charged with the maintenance of public 3. Offender makes use of force or intimidation
order and the protection and security of life upon such person coming to the aid of the
and property, such as a barangay authority or his agent.
councilman, barrio policeman, barangay
leader and any person who comes to the
aid of a person in authority. The victim in indirect assault should be a private person
who comes in aid of an agent of a person in authority.
In applying the provisions of Articles 148 and 151, The assault is upon a person who comes in aid of the
teachers, professors, and persons charged with the person in authority. The victim cannot be the person in
supervision of public or duly recognized private authority or his agent.
schools, colleges and universities and lawyers in the
actual performance of their duties or on the occasion of There is no indirect assault when there is no direct
such performance, shall be deemed a person in assault.
authority.
Take note that under Article 152, as amended, when
In direct assault of the first form, the stature of the any person comes in aid of a person in authority, said
offended person is immaterial. The crime is manifested person at that moment is no longer a civilian – he is
by the spirit of lawlessness. constituted as an agent of the person in authority. If
such person were the one attacked, the crime would be
In the second form, you have to distinguish a situation direct assault.
where a person in authority or his agent was attacked
while performing official functions, from a situation Due to the amendment of Article 152, without the
when he is not performing such functions. If attack was corresponding amendment in Article 150, the crime of
done during the exercise of official functions, the crime indirect assault can only be committed when assault is
is always direct assault. It is enough that the offender upon a civilian giving aid to an agent of the person in
knew that the person in authority was performing an authority. He does not become another agent of the
official function whatever may be the reason for the person in authority.

19
 1. In resistance, the person in authority or his
agent must be in actual performance of his
Article 150. Disobedience to Summons Issued by duties.
Congress, Its Committees or Subcommittees, by
the Constitutional Commissions, Its Committees, In direct assault, the person in authority or his
Subcommittees or Divisions agent must be engaged in the performance of
official duties or that he is assaulted by reason
Acts punished thereof.

1. By refusing, without legal excuse, to obey 2. Resistance or serious disobedience is

summons of Congress, its special or standing committed only by resisting or seriously
committees and subcommittees, the disobeying a person in authority or his agent.
Constitutional Commissions and its
committees, subcommittees or divisions, or by Direct assault (the second form) is committed in
any commission or committee chairman or four ways, that is, (1) by attacking, (2) by
member authorized to summon witnesses; employing force, (3) by seriously intimidating,
and (4) by seriously resisting a persons in
2. By refusing to be sworn or placed under authority or his agent.
affirmation while being before such legislative
or constitutional body or official; 3. In both resistance against an agent of a person
in authority and direct assault by resisting an
3. By refusing to answer any legal inquiry or to agent of a person in authority, there is force
produce any books, papers, documents, or employed, but the use of force in resistance is
records in his possession, when required by not so serious, as there is no manifest intention
them to do so in the exercise of their functions; to defy the law and the officers enforcing it.

4. By restraining another from attending as a The attack or employment of force which gives
witness in such legislative or constitutional rise to the crime of direct assault must be
body; serious and deliberate; otherwise, even a case
of simple resistance to an arrest, which always
5. By inducing disobedience to a summons or requires the use of force of some kind, would
refusal to be sworn by any such body or official. constitute direct assault and the lesser offense
of resistance or disobedience in Article 151
would entirely disappear.
Article 151. Resistance and Disobedience to A
Person in Authority or the Agents of Such Person But when the one resisted is a person I
authority, the use of any kind or degree of force
Elements of resistance and serious disobedience under will give rise to direct assault.
the first paragraph
If no force is employed by the offender in
1. A person in authority or his agent is engaged in resisting or disobeying a person in authority,
the performance of official duty or gives a lawful the crime committed is resistance or serious
order to the offender; disobedience under the first paragraph of
Article 151.
2. Offender resists or seriously disobeys such
person in authority or his agent;

3. The act of the offender is not included in the Who are deemed persons in authority and agents of
provision of Articles 148, 149 and 150. persons in authority under Article 152

A person in authority is one directly vested with

Elements of simple disobedience under the second jurisdiction, that is, the power and authority to govern
paragraph and execute the laws.

1. An agent of a person in authority is engaged in An agent of a person in authority is one charged with
the performance of official duty or gives a lawful (1) the maintenance of public order and (2) the
order to the offender; protection and security of life and property.

2. Offender disobeys such agent of a person in

authority; Examples of persons in authority

3. Such disobedience is not of a serious nature. 1. Municipal mayor;

2. Division superintendent of schools;

Distinction between resistance or serious disobedience
and direct assault 3. Public and private school teachers;

4. Teacher-nurse;

20
 5. President of sanitary division;

6. Provincial fiscal; Article 154. Unlawful Use of Means of Publication

and Unlawful Utterances
7. Justice of the Peace;
Acts punished
8. Municipal councilor;
1. Publishing or causing to be published, by
9. Barrio captain and barangay chairman. means of printing, lithography or any other
means of publication, as news any false news
which may endanger the public order; or cause
Article 153. Tumults and Other Disturbances of damage to the interest or credit of the State;
Public Order
2. Encouraging disobedience to the law or to the
Acts punished constituted authorities or praising, justifying or
extolling any act punished by law, by the same
1. Causing any serious disturbance in a public means or by words, utterances or speeches;
place, office or establishment;
3. Maliciously publishing or causing to be
2. Interrupting or disturbing performances, published any official resolution or document
functions or gatherings, or peaceful meetings, if without proper authority, or before they have
the act is not included in Articles 131 and 132; been published officially;

3. Making any outcry tending to incite rebellion or 4. Printing, publishing or distributing (or causing
sedition in any meeting, association or public the same) books, pamphlets, periodicals, or
place; leaflets which do not bear the real printer’s
name, or which are classified as anonymous.
4. Displaying placards or emblems which provoke
a disturbance of public order in such place; Actual public disorder or actual damage to the credit of
the State is not necessary.
5. Burying with pomp the body of a person who
has been legally executed. Republic Act No. 248 prohibits the reprinting,
reproduction or republication of government
publications and official documents without previous
The essence is creating public disorder. This crime is authority.
brought about by creating serious disturbances in
public places, public buildings, and even in private
places where public functions or performances are Article 155. Alarms and Scandals
being held.
Acts punished
For a crime to be under this article, it must not fall
under Articles 131 (prohibition, interruption, and 1. Discharging any firearm, rocket, firecracker, or
dissolution of peaceful meetings) and 132 (interruption other explosive within any town or public place,
of religious worship). calculated to cause (which produces) alarm of
danger;
In the act of making outcry during speech tending to
incite rebellion or sedition, the situation must 2. Instigating or taking an active part in any
be distinguished from inciting to sedition or charivari or other disorderly meeting offensive
rebellion. If the speaker, even before he to another or prejudicial to public tranquility;
delivered his speech, already had the criminal
intent to incite the listeners to rise to sedition, 3. Disturbing the public peace while wandering
the crime would be inciting to sedition. about at night or while engaged in any other
However, if the offender had no such criminal nocturnal amusements;
intent, but in the course of his speech,
tempers went high and so the speaker started 4. Causing any disturbance or scandal in public
inciting the audience to rise in sedition places while intoxicated or otherwise, provided
against the government, the crime is Article 153 in not applicable.
disturbance of the public order.

The disturbance of the pubic order is tumultuous and When a person discharges a firearm in public, the act
the penalty is increased if it is brought about by armed may constitute any of the possible crimes under the
men. The term “armed” does not refer to firearms but Revised Penal Code:
includes even big stones capable of causing grave
injury. (1) Alarms and scandals
if the firearm when discharged was not directed
It is also disturbance of the public order if a convict to any particular person;
legally put to death is buried with pomp. He should not
be made out as a martyr; it might incite others to (2) Illegal discharge of firearm under Article 254 if
hatred. the firearm is directed or pointed to a particular

21
 person when discharged but intent to kill is In relation to infidelity in the custody of prisoners,
absent; correlate the crime of delivering person from
jail with infidelity in the custody of prisoners
(3) Attempted homicide, murder, or parricide if the punished under Articles 223, 224 and 225 of
firearm when discharged is directed against a the Revised Penal Code. In both acts, the
person and intent to kill is present. offender may be a public officer or a private
citizen. Do not think that infidelity in the
In this connection, understand that it is not necessary custody of prisoners can only be committed
that the offended party be wounded or hit. Mere by a public officer and delivering persons
discharge of firearm towards another with intent to kill from jail can only be committed by private
already amounts to attempted homicide or attempted person. Both crimes may be committed by
murder or attempted parricide. It can not be frustrated public officers as well as private persons.
because the offended party is not mortally wounded.
In both crimes, the person involved may be a convict or
In Araneta v. Court of Appeals, it was held that if a a mere detention prisoner.
person is shot at and is wounded, the crime is
automatically attempted homicide. Intent to kill The only point of distinction between the two crimes
is inherent in the use of the deadly weapon. lies on whether the offender is the custodian of the
prisoner or not at the time the prisoner was made to
The crime alarms and scandal is only one crime. Do escape. If the offender is the custodian at that time, the
not think that alarms and scandals are two crimes. crime is infidelity in the custody of prisoners. But if the
offender is not the custodian of the prisoner at that
Scandal here does not refer to moral scandal; that one time, even though he is a public officer, the crime he
is grave scandal in Article 200. The essence of the committed is delivering prisoners from jail.
crime is disturbance of public tranquility and public
peace. So, any kind of disturbance of public order Liability of the prisoner or detainee who escaped –
where the circumstance at the time renders the act When these crimes are committed, whether
offensive to the tranquility prevailing, the crime is infidelity in the custody of prisoners or
committed. delivering prisoners from jail, the prisoner so
escaping may also have criminal liability and
Charivari is a mock serenade wherein the supposed this is so if the prisoner is a convict serving
serenaders use broken cans, broken pots, sentence by final judgment. The crime of
bottles or other utensils thereby creating evasion of service of sentence is committed
discordant notes. Actually, it is producing noise, by the prisoner who escapes if such prisoner
not music and so it also disturbs public is a convict serving sentence by final
tranquility. Understand the nature of the crime of judgment.
alarms and scandals as one that disturbs public
tranquility or public peace. If the annoyance is If the prisoner who escapes is only a detention
intended for a particular person, the crime is prisoner, he does not incur liability from escaping if he
unjust vexation. does not know of the plan to remove him from jail. But
if such prisoner knows of the plot to remove him from
Even if the persons involved are engaged in nocturnal jail and cooperates therein by escaping, he himself
activity like those playing patintero at night, or selling becomes liable for delivering prisoners from jail as a
balut, if they conduct their activity in such a way that principal by indispensable cooperation.
disturbs public peace, they may commit the crime of
alarms and scandals. If three persons are involved – a stranger, the
custodian and the prisoner – three crimes are
committed:
Article 156. Delivering Prisoners from Jail
(1) Infidelity in the custody of prisoners;
Elements
(2) Delivery of the prisoner from jail; and
1. There is a person confined in a jail or penal
establishment; (3) Evasion of service of sentence.

2. Offender removes therefrom such person, or

helps the escape of such person. Article 157. Evasion of Service of Sentence

Penalty of arresto mayor in its maximum period to Elements

prision correccional in its minimum period is imposed if
violence, intimidation or bribery is used. 1. Offender is a convict by final judgment;

Penalty of arresto mayor if other means are used. 2. He is serving sentence which consists in the
deprivation of liberty;
Penalty decreased to the minimum period if the escape
of the prisoner shall take place outside of said
establishments by taking the guards by surprise. 3. He evades service of his sentence by escaping
during the term of his imprisonment.

22
Qualifying circumstances as to penalty imposed proclamation by the Chief Executive
announcing the passing away of such calamity.
If such evasion or escape takes place –

1. By means of unlawful entry (this should be “by The leaving from the penal establishment is not the
scaling” - Reyes); basis of criminal liability. It is the failure to
return within 48 hours after the passing of the
2. By breaking doors, windows, gates, walls, roofs calamity, conflagration or mutiny had been
or floors; announced. Under Article 158, those who
return within 48 hours are given credit or
3. By using picklock, false keys, disguise, deceit, deduction from the remaining period of their
violence or intimidation; or sentence equivalent to 1/5 of the original term
of the sentence. But if the prisoner fails to
4. Through connivance with other convicts or return within said 48 hours, an added penalty,
employees of the penal institution. 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
Evasion of service of sentence has three forms: case shall that penalty exceed six months.

(1) By simply leaving or escaping from the penal Those who did not leave the penal establishment are
establishment under Article 157; not entitled to the 1/5 credit. Only those who left and
returned within the 48-hour period.
(2) Failure to return within 48 hours after having
left the penal establishment because of a The mutiny referred to in the second form of evasion of
calamity, conflagration or mutiny and such service of sentence does not include riot.
calamity, conflagration or mutiny has been The mutiny referred to here involves
announced as already passed under Article subordinate personnel rising against the
158; supervisor within the penal establishment.
One who escapes during a riot will be subject
(3) Violating the condition of conditional pardon to Article 157, that is, simply leaving or
under Article 159. escaping the penal establishment.

In leaving or escaping from jail or prison, that the Mutiny is one of the causes which may authorize
prisoner immediately returned is immaterial. a convict serving sentence in the penitentiary to
It is enough that he left the penal leave the jail provided he has not taken part in
establishment by escaping therefrom. His the mutiny.
voluntary return may only be mitigating, being
analogous to voluntary surrender. But the The crime of evasion of service of sentence may be
same will not absolve his criminal liability. committed even if the sentence is destierro,
and this is committed if the convict sentenced
to destierro will enter the prohibited places or
Article 158. Evasion of Service of Sentence on the come within the prohibited radius of 25
Occasion of Disorders, Conflagrations, kilometers to such places as stated in the
Earthquakes, or Other Calamities judgment.

Elements If the sentence violated is destierro, the penalty upon

the convict is to be served by way of destierro also, not
1. Offender is a convict by final judgment, who is imprisonment. This is so because the penalty for the
confined in a penal institution; evasion can not be more severe than the penalty
evaded.
2. There is disorder, resulting from –

a. conflagration; Article 159. Other Cases of Evasion of Service of

Sentence
b. earthquake;
Elements of violation of conditional pardon
c. explosion; or
1. Offender was a convict;
d. similar catastrophe; or
2. He was granted pardon by the Chief Executive;
e. mutiny in which he has not participated;
3. He violated any of the conditions of such
3. He evades the service of his sentence by pardon.
leaving the penal institution where he is
confined, on the occasion of such disorder or
during the mutiny;

4. He fails to give himself up to the authorities

within 48 hours following the issuance of a

23
In violation of conditional pardon, as a rule, the violation pardon is not a substantive offense because no new
will amount to this crime only if the condition penalty is imposed for the violation.
is violated during the remaining period of the
sentence. As a rule, if the condition of the In other words, you have to qualify your
pardon is violated when the remaining answer.
unserved portion of the sentence has already
lapsed, there will be no more criminal liability The Supreme Court, however, has ruled in the
for the violation. However, the convict maybe case of Angeles v. Jose that this is not a substantive
required to serve the unserved portion of the offense. This has been highly criticized.
sentence, that is, continue serving original
penalty.
Article 160. Commission of Another Crime During
The administrative liability of the convict under the Service of Penalty Imposed for Another Previous
conditional pardon is different and has nothing to do Offense
with his criminal liability for the evasion of service of
sentence in the event that the condition of the pardon Elements
has been violated. Exception: where the violation of
the condition of the pardon will constitute evasion of 1. Offender was already convicted by final
service of sentence, even though committed beyond judgment of one offense;
the remaining period of the sentence. This is when the
conditional pardon expressly so provides or the 2. He committed a new felony before beginning to
language of the conditional pardon clearly shows the serve such sentence or while serving the same.
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 TITLE IV. CRIMES AGAINST PUBLIC INTEREST
of the sentence even though the violation has taken
place when the sentence has already lapsed.
Crimes against public interest
In order that the conditional pardon may be violated, it
is conditional that the pardonee received the 1. Counterfeiting the great seal of the Government
conditional pardon. If he is released without conformity of the Philippines (Art. 161);
to the conditional pardon, he will not be liable for the
crime of evasion of service of sentence. 2. Using forged signature or counterfeiting seal or
stamp (Art. 162);

3. Making and importing and uttering false coins

(Art. 163);

4. Mutilation of coins, importation and uttering of

mutilated coins (Art. 164);
Question & Answer
5. Selling of false or mutilated coins, without
Is the violation of conditional pardon a connivance (Art. 165);
substantive offense?
6. Forging treasury or bank notes or other
Under Article 159, there are two situations documents payable to bearer, importing and
provided: uttering of such false or forged notes and
documents (Art. 166);
(1) There is a penalty of prision correccional
minimum for the violation of the conditional 7. Counterfeiting, importing and uttering
pardon; instruments not payable to bearer (Art. 167);

(2) There is no new penalty imposed for the 8. Illegal possession and use of forged treasury or
violation of the conditional pardon. Instead, the bank notes and other instruments of credit (Art.
convict will be required to serve the unserved 168);
portion of the sentence.
9. Falsification of legislative documents (Art. 170);
If the remitted portion of the sentence is less
than six years or up to six years, there is an added 10. Falsification by public officer, employee or
penalty of prision correccional minimum for the violation notary (Art. 171);
of the conditional pardon; hence, the violation is a
substantive offense if the remitted portion of the 11. Falsification by private individuals and use of
sentence does not exceed six years because in this falsified documents (Art. 172);
case a new penalty is imposed for the violation of the
conditional pardon. 12. Falsification of wireless, cable, telegraph and
telephone messages and use of said falsified
But if the remitted portion of the sentence messages (Art. 173);
exceeds six years, the violation of the conditional

24
13. False medical certificates, false certificates of
merit or service (Art. 174); Elements

14. Using false certificates (Art. 175); 1. The great seal of the Republic was
counterfeited or the signature or stamp of the
15. Manufacturing and possession of instruments Chief Executive was forged by another person;
or implements for falsification (Art. 176);
2. Offender knew of the counterfeiting or forgery;
16. Usurpation of authority or official functions (Art.
177); 3. He used the counterfeit seal or forged signature
or stamp.
17. Using fictitious name and concealing true name
(Art. 178); Offender under this article should not be the forger.

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

Article 163. Making and Importing and Uttering
19. False testimony against a defendant (Art. 180); False Coins

20. False testimony favorable to the defendant (Art. Elements

181);
1. There be false or counterfeited coins;
21. False testimony in civil cases (Art. 182);
2. Offender either made, imported or uttered such
22. False testimony in other cases and perjury (Art. coins;
183);
3. In case of uttering such false or counterfeited
23. Offering false testimony in evidence (Art. 184); coins, he connived with the counterfeiters or
importers.
24. Machinations in public auction (Art. 185);

25. Monopolies and combinations in restraint of Kinds of coins the counterfeiting of which is punished
trade (Art. 186);
1. Silver coins of the Philippines or coins of the
26. Importation and disposition of falsely marked Central Bank of the Philippines;
articles or merchandise made of gold, silver, or
other precious metals or their alloys (Art. 187); 2. Coins of the minor coinage of the Philippines or
of the Central Bank of the Philippines;
27. Substituting and altering trade marks and trade
names or service marks (Art. 188); 3. Coin of the currency of a foreign country.

28. Unfair competition and fraudulent registration of

trade mark or trade name, or service mark; Article 164. Mutilation of Coins
fraudulent designation of origin, and false
description (Art. 189). Acts punished

1. Mutilating coins of the legal currency, with the

The crimes in this title are in the nature of fraud or further requirements that there be intent to
falsity to the public. The essence of the crime under damage or to defraud another;
this title is that which defraud the public in general.
There is deceit perpetrated upon the public. This is the 2. Importing or uttering such mutilated coins, with
act that is being punished under this title. the further requirement that there must be
connivances with the mutilator or importer in
case of uttering.
Article 161. Counterfeiting the Great Seal of the
Government of the Philippine Islands, Forging the
Signature or Stamp of the Chief Executive The first acts of falsification or falsity are –

Acts punished (1) Counterfeiting – refers to money or currency;

1. Forging the great seal of the Government of the (2) Forgery – refers to instruments of credit and
Philippines; obligations and securities issued by the
Philippine government or any banking
2. Forging the signature of the President; institution authorized by the Philippine
government to issue the same;
3. Forging the stamp of the President.
(3) Falsification – can only be committed in respect
of documents.
Article 162. Using Forged Signature or Counterfeit
Seal or Stamp

25
 In so far as coins in circulation are concerned, there are
two crimes that may be committed: (3) It has to be a coin.

(1) Counterfeiting coins -- This is the crime of Mutilation is being regarded as a crime because the
remaking or manufacturing without any coin, being of legal tender, it is still in circulation and
authority to do so. which would necessarily prejudice other people who
may come across the coin. For example, X mutilated a
In the crime of counterfeiting, the law is not concerned P 2.00 coin, the octagonal one, by converting it into a
with the fraud upon the public such that even though round one and extracting 1/10 of the precious metal
the coin is no longer legal tender, the act of imitating or dust from it. The coin here is no longer P2.00 but only
manufacturing the coin of the government is penalized. P 1.80, therefore, prejudice to the public has resulted.
In punishing the crime of counterfeiting, the law wants
to prevent people from trying their ingenuity in their There is no expertise involved here. In mutilation of
imitation of the manufacture of money. coins under the Revised Penal Code, the offender does
nothing but to scrape, pile or cut the coin and collect
It is not necessary that the coin counterfeited be legal the dust and, thus, diminishing the intrinsic value of the
tender. So that even if the coin counterfeited is of coin.
vintage, the crime of counterfeiting is committed. The
reason is to bar the counterfeiter from perfecting his Mutilation of coins is a crime only if the coin mutilated is
craft of counterfeiting. The law punishes the act in legal tender. If the coin whose metal content has been
order to discourage people from ever attempting to gain depreciated through scraping, scratching, or filing the
expertise in gaining money. This is because if people coin and the offender collecting the precious metal
could counterfeit money with impunity just because it is dust, even if he would use the coin after its intrinsic
no longer legal tender, people would try to counterfeit value had been reduced, nobody will accept the same.
non-legal tender coins. Soon, if they develop the If it is not legal tender anymore, no one will accept it, so
expertise to make the counterfeiting more or less no nobody will be defrauded. But if the coin is of legal
longer discernible or no longer noticeable, they could tender, and the offender minimizes or decreases the
make use of their ingenuity to counterfeit coins of legal precious metal dust content of the coin, the crime of
tender. From that time on, the government shall have mutilation is committed.
difficulty determining which coins are counterfeited and
those which are not. It may happen that the In the example, if the offender has collected 1/10 of the
counterfeited coins may look better than the real ones. P 2.00 coin, the coin is actually worth only P 1.80. He
So, counterfeiting is penalized right at the very start is paying only P1.80 in effect defrauding the seller of
whether the coin is legal tender or otherwise. P .20. Punishment for mutilation is brought about by
the fact that the intrinsic value of the coin is reduced.

The offender must deliberately reduce the precious

Question & Answer
metal in the coin. Deliberate intent arises only when
the offender collects the precious metal dust from the
X has in his possession a coin which was legal mutilated coin. If the offender does not collect such
tender at the time of Magellan and is considered a dust, intent to mutilate is absent, but Presidential
collector’s item. He manufactured several pieces of Decree No. 247 will apply.
that coin. Is the crime committed?

Yes. It is not necessary that the coin be of Presidential Decree No. 247 (Defacement,
legal tender. The provision punishing counterfeiting Mutilation, Tearing, Burning or Destroying Central
does not require that the money be of legal tender and Bank Notes and Coins)
the law punishes this even if the coin concerned is not
of legal tender in order to discourage people from It shall be unlawful for any person to willfully deface,
practicing their ingenuity of imitating money. If it were mutilate, tear, burn, or destroy in any manner
otherwise, people may at the beginning try their whatsoever, currency notes and coins issued by the
ingenuity in imitating money not of legal tender and Central Bank.
once they acquire expertise, they may then counterfeit
money of legal tender.
Mutilation under the Revised Penal Code is true only to
coins. It cannot be a crime under the Revised Penal
(2) Mutilation of coins -- This refers to the Code to mutilate paper bills because the idea of
deliberate act of diminishing the proper metal mutilation under the code is collecting the precious
contents of the coin either by scraping, metal dust. However, under Presidential Decree No.
scratching or filling the edges of the coin and 247, mutilation is not limited to coins.
the offender gathers the metal dust that has
been scraped from the coin.
Questions & Answers
Requisites of mutilation under the Revised Penal Code

(1) (1) Coin mutilated is of legal tender; 1. The people playing cara y cruz, before
they throw the coin in the air would rub the money to
(2) Offender gains from the precious metal dust the sidewalk thereby diminishing the intrinsic value of
abstracted from the coin; and the coin. Is the crime of mutilation committed?

26
 people writing at the back or on the edges of the paper
Mutilation, under the Revised Penal Code, is bills, such as "wanted: pen pal".
not committed because they do not collect the precious
metal content that is being scraped from the coin. So, if the act of mutilating coins does not involve
However, this will amount to violation of Presidential gathering dust like playing cara y cruz, that is not
Decree No. 247. mutilation under the Revised Penal Code because the
offender does not collect the metal dust. But by
2. When the image of Jose Rizal on a rubbing the coins on the sidewalk, he also defaces and
five-peso bill is transformed into that of Randy destroys the coin and that is punishable under
Santiago, is there a violation of Presidential Decree No. Presidential Decree No. 247.
247?

Yes. Presidential Decree No. 247 is violated Article 165. Selling of False or Mutilated Coin,
by such act. without Connivance

3. Sometime before martial law was Acts punished

imposed, the people lost confidence in banks that they
preferred hoarding their money than depositing it in 1. Possession of coin, counterfeited or mutilated
banks. Former President Ferdinand Marcos declared by another person, with intent to utter the
upon declaration of martial law that all bills without the same, knowing that it is false or mutilated;
Bagong Lipunan sign on them will no longer be
recognized. Because of this, the people had no choice Elements
but to surrender their money to banks and exchange
them with those with the Bagong Lipunan sign on them. 1. Possession;
However, people who came up with a lot of money
were also being charged with hoarding for which reason 2. With intent to utter; and
certain printing presses did the stamping of the Bagong
Lipunan sign themselves to avoid prosecution. Was
there a violation of Presidential Decree No. 247? 3. Knowledge.

Yes. This act of the printing presses is a 2. Actually uttering such false or mutilated coin,
violation of Presidential Decree No. 247. knowing the same to be false or mutilated.

4. An old woman who was a cigarette Elements

vendor in Quiapo refused to accept one-centavo coins
for payment of the vendee of cigarettes he purchased. 1. Actually uttering; and
Then came the police who advised her that she has no
right to refuse since the coins are of legal tender. On 2. Knowledge.
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 Article 166. Forging Treasury or Bank Notes or
violating Presidential Decree No. 247? Other Documents Payable to Bearer; Importing and
Uttering Such False or Forged Notes and
She was guilty of violating Presidential Decree Documents
No. 247 because if no one ever picks up the coins, her
act would result in the diminution of the coin in Acts punished
circulation.
1. Forging or falsification of treasury or bank notes
5. A certain customer in a restaurant or other documents payable to bearer;
wanted to show off and used a P 20.00 bill to light his
cigarette. Was he guilty of violating Presidential Decree 2. Importation of such false or forged obligations
No. 247? or notes;

He was guilty of arrested for violating of 3. Uttering of such false or forged obligations or
Presidential Decree No. 247. Anyone who is in notes in connivance with the forgers or
possession of defaced money is the one who is the importers.
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 Article 167. Counterfeiting, Importing, and Uttering
the act of destruction of money issued by the Central Instruments Not Payable to Bearer
Bank of the Philippines.
Elements

Note that persons making bracelets out of some coins 1. There is an instrument payable to order or
violate Presidential Decree No. 247. other documents of credit not payable to
bearer;
The primary purpose of Presidential Decree No. 247 at
the time it was ordained was to stop the practice of 2. Offender either forged, imported or uttered
such instrument;

27
 No. Forgery was not committed. The forged
3. In case of uttering, he connived with the forger instrument and currency note must be given the
or importer. appearance of a true and genuine document. The
crime committed is a violation of Presidential Decree
Article 168. Illegal Possession and Use of False No. 247. Where the currency note, obligation or
Treasury or Bank Notes and Other Instruments of security has been changed to make it appear as one
Credit which it purports to be as genuine, the crime is forgery.
In checks or commercial documents, this crime is
Elements committed when the figures or words are changed
which materially alters the document.
1. Any treasury or bank note or certificate or other
obligation and security payable to bearer, or 2. An old man, in his desire to earn
any instrument payable to order or other something, scraped a digit in a losing sweepstakes
document of credit not payable to bearer is ticket, cut out a digit from another ticket and pasted it
forged or falsified by another person; there to match the series of digits corresponding to the
winning sweepstakes ticket. He presented this ticket to
2. Offender knows that any of those instruments is the Philippine Charity Sweepstakes Office. But the
forged or falsified; alteration is so crude that even a child can notice that
the supposed digit is merely superimposed on the digit
3. He either – that was scraped. Was the old man guilty of forgery?

a. uses any of such forged or falsified Because of the impossibility of deceiving

instruments; or whoever would be the person to whom that ticket is
presented, the Supreme Court ruled that what was
b. possesses with intent to use any of committed was an impossible crime. Note, however,
such forged or falsified instruments. 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
How forgery is committed under Article 169 would be deceived, one could easily see that it is a
forgery, the crime is frustrated because he has done all
1. By giving to a treasury or bank note or any the acts of execution which would bring about the
instrument payable to bearer or to order felonious consequence but nevertheless did not result
mentioned therein, the appearance of a true in a consummation for reasons independent of his will.
and genuine document;
3. A person has a twenty-peso bill. He
2. By erasing, substituting, counterfeiting, or applied toothache drops on one side of the bill. He has
altering by any means the figures, letters, a mimeograph paper similar in texture to that of the
words, or sign contained therein. 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-
Forgery under the Revised Penal Code applies to peso bill was reproduced on the mimeo paper. He took
papers, which are in the form of obligations and the reverse side of the P20 bill, applied toothache drops
securities issued by the Philippine government as its and reversed the mimeo paper and pressed it to the
own obligations, which is given the same status as paper. After sometime, he removed it and it was
legal tender. Generally, the word “counterfeiting” is not reproduced. He cut it out, scraped it a little and went to
used when it comes to notes; what is used is “forgery.” a sari-sari store trying to buy a cigarette with that bill.
Counterfeiting refers to money, whether coins or bills. What he overlooked was that, when he placed the bill,
the printing was inverted. He was apprehended and
The Revised Penal Code defines forgery under Article was prosecuted and convicted of forgery. Was the
169. Notice that mere change on a document does not crime of forgery committed?
amount to this crime. The essence of forgery is giving
a document the appearance of a true and genuine The Supreme Court ruled that it was only
document. Not any alteration of a letter, number, figure frustrated forgery because although the offender has
or design would amount to forgery. At most, it would performed all the acts of execution, it is not possible
only be frustrated forgery. because by simply looking at the forged document, it
could be seen that it is not genuine. It can only be a
When what is being counterfeited is obligation or consummated forgery if the document which purports
securities, which under the Revised Penal Code is to be genuine is given the appearance of a true and
given a status of money or legal tender, the crime genuine document. Otherwise, it is at most frustrated.
committed is forgery.
Article 170. Falsification of Legislative Documents

Elements
Questions & Answers
1. There is a bill, resolution or ordinance enacted
or approved or pending approval by either
1. Instead of the peso sign (P), somebody
House of the Legislature or any provincial
replaced it with a dollar sign ($). Was the crime of
board or municipal council;
forgery committed?

28
2. Offender alters the same; b. Causing it to appear that persons have
participated in any act or proceeding
3. He has no proper authority therefor; when they did not in fact so participate;

4. The alteration has changed the meaning of the c. Attributing to persons who have
documents. participated in an act or proceeding
statements other than those in fact
made by them;
The words "municipal council" should include the city
council or municipal board – Reyes. d. Making untruthful statements in a
narration of facts;

The crime of falsification must involve a writing that is a e. Altering true dates;
document in the legal sense. The writing must be
complete in itself and capable of extinguishing an f. Making any alteration or intercalation in
obligation or creating rights or capable of becoming a genuine document which changes its
evidence of the facts stated therein. Until and unless meaning;
the writing has attained this quality, it will not be
considered as document in the legal sense and, g. Issuing in an authenticated form a
therefore, the crime of falsification cannot be committed document purporting to be a copy
in respect thereto. of an original document when no such
original exists, or including in such a
Five classes of falsification: copy a statement contrary to, or
different from, that of the genuine
(1) Falsification of legislative documents; original; or

(2) Falsification of a document by a public officer, h. Intercalating any instrument or note

employee or notary public; relative to the issuance thereof in a
protocol, registry, or official book.
(3) Falsification of a public or official, or
commercial documents by a private individual; 4. In case the offender is an ecclesiastical
minister who shall commit any of the offenses
(4) Falsification of a private document by any enumerated, with respect to any record or
person; document of such character that its falsification
may affect the civil status of persons.
(5) Falsification of wireless, telegraph and
telephone messages.
For example, a customer in a hotel did not write his
Distinction between falsification and forgery: name on the registry book, which was intended to be a
memorial of those who got in and out of that hotel.
Falsification is the commission of any of the eight acts There is no complete document to speak of. The
mentioned in Article 171 on legislative (only the act of document may not extinguish or create rights but it can
making alteration), public or official, commercial, or be an evidence of the facts stated therein.
private documents, or wireless, or telegraph messages.
Note that a check is not yet a document when it is not
The term forgery as used in Article 169 refers to the completed yet. If somebody writes on it, he makes a
falsification and counterfeiting of treasury or bank notes document out of it.
or any instruments payable to bearer or to order.
The document where a crime was committed or the
Note that forging and falsification are crimes under document subject of the prosecution may be totally
Forgeries. false in the sense that it is entirely spurious. This
notwithstanding, the crime of falsification is committed.

Article 171. Falsification by Public Officer, It does not require that the writing be genuine. Even if
Employee or Notary or Ecclesiastical Minister the writing was through and through false, if it appears
to be genuine, the crime of falsification is nevertheless
Elements committed.

1. Offender is a public officer, employee, or notary

public;
Questions & Answers
2. He takes advantage of his official position;
1. A is one of those selling residence
3. He falsifies a document by committing any of certificates in Quiapo. He was brought to the police
the following acts: precincts on suspicion that the certificates he was
selling to the public proceed from spurious sources and
a. Counterfeiting or imitating any not from the Bureau of Treasury. Upon verification, it
handwriting, signature or rubric; was found out that the certificates were indeed printed

29
with a booklet of supposed residence certificates. What
crime was committed? Public document is broader than the term official
document. Before a document may be considered
Crime committed is violation of Article 176 official, it must first be a public document. But not all
(manufacturing and possession of instruments or public documents are official documents. To become
implements for falsification). A cannot be charged of an official document, there must be a law which
falsification because the booklet of residence requires a public officer to issue or to render such
certificates found in his possession is not in the nature document. Example: A cashier is required to issue an
of “document” in the legal sense. They are mere forms official receipt for the amount he receives. The official
which are not to be completed to be a document in the receipt is a public document which is an official
legal sense. This is illegal possession with intent to document.
use materials or apparatus which may be used in
counterfeiting/forgery or falsification.
Article 172. Falsification by Private Individual and
2. Public officers found a traffic violation Use of Falsified Documents
receipts from a certain person. The receipts were not
issued by the Motor Vehicle Office. For what crime Acts punished
should he be prosecuted for?
1. Falsification of public, official or commercial
It cannot be a crime of usurpation of official document by a private individual;
functions. It may be the intention but no overt act was
yet performed by him. He was not arrested while 2. Falsification of private document by any
performing such overt act. He was apprehended only person;
while he was standing on the street suspiciously.
Neither can he be prosecuted for falsification because 3. Use of falsified document.
the document is not completed yet, there being no
name of any erring driver. The document remains to
be a mere form. It not being completed yet, the Elements under paragraph 1
document does not qualify as a document in the legal
sense. 1. Offender is a private individual or public officer
or employee who did not take advantage of his
4. Can the writing on the wall be official position;
considered a document?
2. He committed any act of falsification;
Yes. It is capable of speaking of the facts
stated therein. Writing may be on anything as long as it 3. The falsification was committed in a public,
is a product of the handwriting, it is considered a official, or commercial document or letter of
document. exchange.

5. In a case where a lawyer tried to

extract money from a spinster by typing on a bond Elements under paragraph 2
paper a subpoena for estafa. The spinster agreed to
pay. The spinster went to the prosecutor’s office to
verify the exact amount and found out that there was no 1. Offender committed any of the acts of
charge against her. The lawyer was prosecuted for falsification except Article 171(7), that is,
falsification. He contended that only a genuine issuing in an authenticated form a document
document could be falsified. Rule. purporting to be a copy of an original document
when no such original exists, or including in
As long as any of the acts of falsification is such a copy a statement contrary to, or
committed, whether the document is genuine or not, different from, that of the genuine original;
the crime of falsification may be committed. Even
totally false documents may be falsified. 2. Falsification was committed in any private
document;

There are four kinds of documents: 3. Falsification causes damage to a third party or
at least the falsification was committed with
(1) Public document in the execution of which, a intent to cause such damage.
person in authority or notary public has taken
part;
Elements under the last paragraph
(2) Official document in the execution of which a
public official takes part; In introducing in a judicial proceeding –

(3) Commercial document or any document 1. Offender knew that the document was falsified
recognized by the Code of Commerce or any by another person;
commercial law; and

(4) Private document in the execution of which 2. The false document is in Articles 171 or 172 (1
only private individuals take part. or 2);

30
3. He introduced said document in evidence in 3. The use resulted in the prejudice of a
any judicial proceeding. third party or at least there was intent to
cause such prejudice.
In use in any other transaction –

1. Offender knew that a document was falsified by Article 174. False Medical Certificates, False
another person; Certificates of Merits or Service, Etc.

Persons liable
2. The false document is embraced in Articles 171
or 172 (1 or 2);
1. Physician or surgeon who, in connection with
the practice of his profession, issues a false
3. He used such document; certificate (it must refer to the illness or injury of
a person);
4. The use caused damage to another or at least
used with intent to cause damage. [The crime here is false medical certificate by a
physician.]

Article 173. Falsification of Wireless, Cable, 2. Public officer who issues a false certificate of
Telegraph and Telephone Messages, and Use of merit of service, good conduct or similar
Said Falsified Messages circumstances;
Acts punished [The crime here is false certificate of merit or
service by a public officer.]
1. Uttering fictitious wireless, telegraph or
telephone message;
3. Private person who falsifies a certificate falling
Elements within the classes mentioned in the two
preceding subdivisions.
1, Offender is an officer or employee of
the government or an officer or
employee of a private corporation, Article 175. Using False Certificates
engaged in the service of sending or
receiving wireless, cable or telephone Elements
message;
1. The following issues a false certificate:
2. He utters fictitious wireless, cable,
telegraph or telephone message. a. Physician or surgeon, in connection
with the practice of his profession,
2. Falsifying wireless, telegraph or telephone issues a false certificate;
message;
b. Public officer issues a false
Elements certificate of merit of service,
good conduct or similar
1, Offender is an officer or employee of circumstances;
the government or an officer or
employee of a private corporation, c. Private person falsifies a
engaged in the service of sending or certificate falling within the
receiving wireless, cable or telephone classes mentioned in the two
message; preceding subdivisions.

2. He falsifies wireless, cable, telegraph 2. Offender knows that the certificate was
or telephone message. false;

3. Using such falsified message. 3. He uses the same.

Elements
Article 176. Manufacturing and Possession of
1. Offender knew that wireless, cable, Instruments or Implements for Falsification
telegraph, or telephone message was
falsified by an officer or employee of Acts punished
the government or an officer or
employee of a private corporation, 1. Making or introducing into the Philippines any
engaged in the service of sending or stamps, dies, marks, or other instruments or
receiving wireless, cable or telephone implements for counterfeiting or falsification;
message;
2. Possession with intent to use the instruments
2. He used such falsified dispatch; or implements for counterfeiting or falsification
made in or introduced into the Philippines by
another person.

31
 local civil registry, or with which he was registered in
the bureau of immigration upon entry; or such substitute
Article 177. Usurpation of Authority or Official name as may have been authorized by a competent
Functions court.

Acts punished Exception: Pseudonym solely for literary, cinema,

television, radio, or other entertainment and in athletic
1. Usurpation of authority; events where the use of pseudonym is a normally
accepted practice.
Elements

1. Offender knowingly and falsely Article 179. Illegal Use of Uniforms or Insignia
represents himself;
Elements
2. As an officer, agent or representative of
any department or agency of the 1. Offender makes use of insignia, uniforms or
Philippine government or of any foreign dress;
government.
2. The insignia, uniforms or dress pertains to an
2. Usurpation of official functions. office not held by such person or a class of
persons of which he is not a member;
Elements
3. Said insignia, uniform or dress is used publicly
1. Offender performs any act; and improperly.
2. Pertaining to any person in authority or
public officer of the Philippine Wearing the uniform of an imaginary office is not
government or any foreign government, punishable.
or any agency thereof;
So also, an exact imitation of a uniform or dress is
3. Under pretense of official position; unnecessary; a colorable resemblance calculated to
deceive the common run of people is sufficient.
4. Without being lawfully entitled to do so.
Article 180. False Testimony against A Defendant
Article 178. Using Fictitious Name and Concealing Elements
True Name
1. There is a criminal proceeding;
Acts punished
2. Offender testifies falsely under oath against the
1. Using fictitious name defendant therein;
Elements 3. Offender who gives false testimony knows that
it is false.
1. Offender uses a name other than his
real name; 4. Defendant against whom the false testimony is
given is either acquitted or convicted in a final
2. He uses the fictitious name publicly; judgment.
3. Purpose of use is to conceal a crime, to
evade the execution of a judgment or to Three forms of false testimony
cause damage [to public interest –
Reyes]. 1. False testimony in criminal cases under Article
180 and 181;
2. Concealing true name
2. False testimony in civil case under Article 182;
Elements
3. False testimony in other cases under Article
1. Offender conceals his true name and 183.
other personal circumstances;

2. Purpose is only to conceal his identity. Article 181. False Testimony Favorable to the
Defendant
Commonwealth Act No. 142 (Regulating the Use of Elements
Aliases)
1. A person gives false testimony;
No person shall use any name different from the one
with which he was registered at birth in the office of the 2. In favor of the defendant;

32
 1. Soliciting any gift or promise as a consideration
3. In a criminal case. for refraining from taking part in any public
auction;

Article 182. False Testimony in Civil Cases Elements

Elements 1. There is a public auction;

1. Testimony given in a civil case; 2. Offender solicits any gift or a promise

from any of the bidders;
2. Testimony relates to the issues presented in
said case; 3. Such gift or promise is the
consideration for his refraining from
3. Testimony is false; taking part in that public auction;

4. Offender knows that testimony is false; 4. Offender has the intent to cause the
reduction of the price of the thing
5. Testimony is malicious and given with an intent auctioned.
to affect the issues presented in said case.
2. Attempting to cause bidders to stay away from
an auction by threats, gifts, promises or any
Article 183. False Testimony in Other Cases and other artifice.
Perjury in Solemn Affirmation
Elements
Acts punished
1. There is a public auction;
1. By falsely testifying under oath;
2. Offender attempts to cause the bidders
2. By making a false affidavit. to stay away from that public auction;

3. It is done by threats, gifts, promises or

Elements of perjury any other artifice;

1. Offender makes a statement under oath or 4. Offender has the intent to cause the
executes an affidavit upon a material matter; reduction of the price of the thing
auctioned.
2. The statement or affidavit is made before a
competent officer, authorized to receive and
administer oaths; Article 186. Monopolies and Combinations in
Restraint of Trade
3. Offender makes a willful and deliberate
assertion of a falsehood in the statement or Acts punished
affidavit;
1. Combination to prevent free competition in the
4. The sworn statement or affidavit containing the market;
falsity is required by law, that is, it is made for a
legal purpose. Elements

1. Entering into any contract or agreement

Article 184. Offering False Testimony in Evidence or taking part in any conspiracy or
combination in the form of a trust or
Elements otherwise;

1. Offender offers in evidence a false witness or 2. In restraint of trade or commerce or to

testimony; prevent by artificial means free
competition in the market.
2 He knows that the witness or the testimony was
false; 2. Monopoly to restrain free competition in the
market;
3. The offer is made in any judicial or official
proceeding. Elements

1. By monopolizing any merchandise or

Article 185. Machinations in Public Auctions object of trade or commerce, or by
combining with any other person or
Acts punished persons to monopolize said
merchandise or object;

33
 2. In order to alter the prices thereof by
spreading false rumors or making use 4. Printing, lithographing or reproducing trade
of any other artifice; name, trademark, or service mark of one
person or a colorable imitation thereof to
3. To restrain free competition in the enable another person to fraudulently use the
market same knowing the fraudulent purpose for which
it is to be used.
3. Manufacturer, producer, or processor or
importer combining, conspiring or agreeing with
any person to make transactions prejudicial to Article 189. Unfair Competition, Fraudulent
lawful commerce or to increase the market Registration of Trade Name, Trademark, or Service
price of merchandise. Mark, Fraudulent Designation of Origin, and False
Description
Elements
Acts punished
1. Manufacturer, producer, processor or
importer of any merchandise or object 1. Unfair competition;
of commerce;
Elements
2. Combines, conspires or agrees with
any person; 1. By selling his goods;

3. Purpose is to make transactions 2. Giving them the general appearance of

prejudicial to lawful commerce or to the goods of another manufacturer or
increase the market price of any dealer;
merchandise or object of commerce
manufactured, produced, processed, 3. The general appearance is shown in
assembled or imported into the the goods themselves, or in the
Philippines. wrapping of their packages, or in the
device or words therein, or in any
feature of their appearance;
Article 187. Importation and Disposition of Falsely
Marked Articles or Merchandise Made of Gold, 4. There is actual intent to deceive the
Silver, or Other Precious Metals of Their Alloys public or defraud a competitor.

Elements 2. Fraudulent designation of origin; false

description:
1. Offender imports, sells or disposes articles
made of gold, silver, or other precious metals or Elements
their alloys;
1. By affixing to his goods or using in
2. The stamps, brands, or marks of those articles connection with his services a false
of merchandise fail to indicate the actual designation of origin, or any false
fineness or quality of said metals or alloys; description or representation; and

3. Offender knows that the stamps, brands, or 2. Selling such goods or services.
marks fail to indicate the actual fineness or
quality of the metals or alloys. 3. Fraudulent registration

Elements
Article 188. Substituting and Altering Trademarks,
Trade names, or Service Marks 1. By procuring fraudulently from the
patent office;
Acts punished
2. The registration of trade name,
1. Substituting the trade name or trademark of trademark or service mark
some other manufacturer or dealer, or a
colorable imitation thereof for the trade name or
trademark of the real manufacturer or dealer Republic Act No. 8293 (An Act Prescribing the
upon any article of commerce and selling the Intellectual Property Code and Establishing the
same; Intellectual Property Office, Providing for Its Power
and Functions, and for Other Purposes)
2. Selling or offering for sale such articles of
commerce knowing that the trade name or Section 170. Penalties. – Independent of the
trademark has been fraudulently used; civil and administrative sanctions imposed by law, a
criminal penalty of imprisonment from two (2) years to
3. Using or substituting the service mark of some five (5) years and a fine ranging from Fifty thousand
other person, or a colorable imitation of such pesos (P 50,000.00) to Two hundred thousand pesos
mark n the sale or advertising of his services; (P 200,000.00), shall be imposed on any person who is

34
found guilty of committing any of the acts mentioned in shall deceive the public and defraud another of his
Section 155, Section 168 and Subsection 169.1. legitimate trade, or any subsequent vendor of such
goods or any agent of any vendor engaged in selling
Section 155. Remedies; Infringement. – Any such goods with a like purpose; or
person who shall, without the consent of the owner of
the registered mark: (b) Any person who by any artifice, or
device, or who employs any other means calculated to
155.1. Use in commerce any reproduction, induce the false belief that such person is offering the
counterfeit, copy, or colorable imitation of a registered services of another who ahs identified such services in
mark or the same container or a dominant feature the mind of the public; or
thereof in connection with the sale, offering for sale,
distribution, advertising of any goods or services (c) Any person who shall make any false
including other preparatory steps necessary to carry out statement in the course of trade or who shall commit
the sale of any goods or services on or in connection any other act contrary to good faith of a nature
with which such use is likely to course confusion, or to calculated to discredit the goods, business or services
cause mistake, or to deceive; or of another.

155.2. Reproduce, counterfeit, copy or 168.4. The remedies provided by Section 156,
colorably imitate a registered mark or a dominant 157 and 161 shall apply mutatis mutandis.
feature thereof and apply such reproduction,
counterfeit, copy or colorable imitation to labels, signs, Section 169. False Designation or Origin;
prints, packages, wrappers, receptacles or False Description or Representation.
advertisement intended to be used in commerce upon
or in connection with the sale, offering for sale, 169.1. Any person who, on or in connection
distribution, or advertising of goods or services on or in with any goods or services, or any container for goods,
connection with which such use is likely to cause uses in commerce any word, term, name, symbol, or
confusion, or to cause mistake, or to deceive shall be device, or any combination thereof, or any false
liable in a civil action for infringement by the registrant designation of origin, false or misleading description of
for the remedies hereinafter set forth: Provided, that the fact, or false or misleading representation of fact, which:
infringement takes place at the moment any of the acts
stated in Subsection 155.1 or this subsection are (a) Is likely to cause confusion, or to cause
committed regardless of whether there is actual sale of mistake, or to deceive as to the affiliation, connection,
goods or services using the infringing material. or association of such person with another person, or
as to the origin, sponsorship, or approval of his or her
Section 168. Unfair Competition, Rights, goods, services, or commercial activities by another
Regulation and Remedies. person; or

168.1. Any person who has identified in the (b) In commercial advertising or promotion,
mind of the public the goods he manufactures or deals misrepresents the nature, characteristics, qualities, or
in, his business or services from those of others, geographic origin of his or her or another person's
whether or not a registered mark is employed, has a goods, services or commercial activities, shall be liable
property right in the goodwill of the said goods, to a civil action for damages and injunction provided in
business or service so identified, which will be Section 156 and 157 of this Act by any person who
protected in the same manner as other property rights. believes that he or she is or likely to be damaged by
such act.
168.2. Any person who shall employ deception
or any other means contrary to good faith by which he
shall pass off the goods manufactured by him or in TITLE V. CRIMES RELATIVE TO OPIUM AND
which he deals, or his business, or services for those of OTHER PROHIBITED DRUGS
the one having established such goodwill, or who shall
commit any acts calculated to produce said result, shall
be guilty of unfair competition, and shall be subject to Articles 190, 191, 192, 193 and194 of the Revised
an action therefor. Penal Code have been repealed by Republic Act No.
6425 (The Dangerous Drugs Act of 1972), as
168.3. In particular, and without in any way amended by Presidential Decree No. 1683 and further
limiting the scope of protection against unfair amended by Republic Act No. 7659.
competition, the following shall be deemed guilty of
unfair competition:
Acts punished by the Republic Act No. 6425
(a) Any person, who is selling his goods
and gives them the general appearance of goods of 1. Importation of prohibited drugs;
another manufacturer or dealer, either as to the goods
themselves or in the wrapping of the packages in which 2. Sale, administration, delivery, distribution and
they are contained, or the devices or words thereon, on transportation of prohibited drugs;
in any other feature or their appearance, which would
be likely to influence purchasers to believe that the
goods offered are those of a manufacturer or dealer, 3. Maintenance of a den, dive or resort for
other than the actual manufacturer or dealer, or who prohibited drug users;
otherwise clothes the goods with such appearance as

35
4. Being employees and visitors of prohibited drug percentage game, dog races, or any
den; other game or scheme the results of
which depend wholly or chiefly upon
5. Manufacture of prohibited drugs; chance or hazard; or wherein wagers
consisting of money, articles of value,
or representative of value are made; or
6. Possession or use of prohibited drugs;
b. the exploitation or use of any other
7. Cultivation of plants which are sources of mechanical invention or contrivance to
prohibited drugs; determine by chance the loser or
winner of money or any object or
8. Failure to comply with the provisions of the Act representative of value;
relative to the keeping of records of
prescriptions, sales, purchases, acquisitions 2. Knowingly permitting any form of gambling to
and/or deliveries of prohibited drugs; be carried on in any place owned or controlled
by the offender;
9. Unlawful prescription of prohibited drugs;
3. Being maintainer, conductor, or banker in a
10. Unnecessary prescription of prohibited drugs; game of jueteng or similar game;

4. Knowingly and without lawful purpose

11. Possession of opium pipe and other possessing lottery list, paper, or other matter
paraphernalia for prohibited drugs; containing letters, figures, signs or symbol
which pertain to or are in any manner used in
12. Unauthorized importation, manufacture, sale the game of jueteng or any similar game.
administration, dispensation, delivery,
transportation, distribution, possession or use
of regulated drugs, failure to comply with the Article 196. Importation, Sale and Possession of
provisions of the Act relative to the keeping of Lottery Tickets or Advertisements
records of prescriptions, sales, purchases,
acquisitions and/or deliveries, unlawful Acts punished
prescription, unnecessary prescription of
regulated drugs, and maintenance of a den, 1. Importing into the Philippines from any foreign
dive or resort for regulated drug users. place or port any lottery ticket or advertisement;
or
TITLE VI. CRIMES AGAINST PUBLIC MORALS
2. Selling or distributing the same in connivance
with the importer;
Crimes against public morals
3. Possessing, knowingly and with intent to use
1. Gambling (Art. 195); them, lottery tickets or advertisements; or

2. Importation, sale and possession of lottery 4. Selling or distributing the same without
tickets or advertisements (Art. 196); connivance with the importer of the same.

3. Betting in sport contests (Art. 197); Note that possession of any lottery ticket or
advertisement is prima facie evidence of an intent to
4. Illegal betting on horse races (Art. 198); sell, distribute or use the same in the Philippines.

5. Illegal cockfighting (Art. 199);

Article 197. Betting in Sport Contests
6. Grave scandal (Art. 200);
This article has been repealed by Presidential Decree
7. Immoral doctrines, obscene publications and No. 483 (Betting, Game-fixing or Point-shaving and
exhibitions (Art. 201); and Machinations in Sport Contests):

Section 2. Betting, game-fixing, point-shaving

8. Vagrancy and prostitution (Art. 202). or game machination unlawful. – Game-fixing, point-
shaving, game machination, as defined in the preceding
section, in connection with the games of basketball,
Article 195. What Acts Are Punishable in Gambling volleyball, softball, baseball; chess, boxing bouts, jai-
alia, sipa, pelota and all other sports contests, games or
Acts punished races; as well as betting therein except as may be
authorized by law, is hereby declared unlawful.
1. Taking part directly or indirectly in –

a. any game of monte, jueteng, or any Article 198. Illegal Betting on Horse Race
other form of lottery, policy, banking, or

36
 to include game fixing) and other lotteries, cara y cruz
Acts punished or pompiang and the like, black jack, lucky nine,
“pusoy” or Russian Poker, monte, baccarat and other
1. Betting on horse races during periods not card games, palk que, domino, mahjong, high and low,
allowed by law; slot machines, roulette, pinball and other mechanical
inventories or devices, dog racing, boat racing, car
2. Maintaining or employing a totalizer or other raising and other races, basketball, volleyball, boxing,
device or scheme for betting on races or seven-eleven dice games and the like and other
realizing profit therefrom during the periods not contests to include game fixing, point shaving and other
allowed by law. 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
When horse races not allowed government, wherein wagers consisting of money,
articles of value of representative of value are made;
1. July 4 (Republic Act No. 137); (b) Any person who shall knowingly permit
any form of gambling referred to in the preceding
2. December 30 (Republic Act No. 229); subdivision to be carried on in inhabited or uninhabited
places or any building, vessel or other means of
3. Any registration or voting days (Republic Act transportation owned or controlled by him. If the place
No. 180, Revised Election Code); and where gambling is carried on has a reputation of a
gambling place or that prohibited gambling is frequently
4. Holy Thursday and Good Friday (Republic Act carried on therein or the place is a public or government
No. 946). 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.
Article 199. Illegal Cockfighting
The penalty of prision correccional in its
This article has been modified or repealed by maximum degree and a fine of Six Thousand Pesos
Presidential Decree No. 449 (The Cockfighting Law shall be imposed upon the maintainer, conductor of the
of 1974): above gambling schemes.

• Only allows one cockpit per municipality, unless The penalty of prision mayor in its medium
the population exceeds 100,000 in which case degree and temporary absolute disqualification and a
two cockpits may be established; fine of Six Thousand Pesos shall be imposed if the
maintainer, conductor or banker is a government
• Cockfights can only be held in licensed cockpits official, or if a player, promoter, referee, umpire, judge
on Sundays and legal holidays and local fiestas or coach in cases of game-fixing, point-shaving and
for not more than three days; other game machination.

The penalty of prision correccional in its

• Also allowed during provincial, municipal, city,
medium degree and a fine ranging from Five Hundred
industrial, agricultural fairs, carnivals, or
pesos to Two Thousand Pesos shall be imposed upon
exposition not more than three days;
any person who shall knowingly and without lawful
purpose in any hour of any day shall have in his
• Cockfighting not allowed on December 30,
possession any lottery list, paper, or other matter
June 12, November 30, Holy Thursday, Good
containing letter, figures, signs or symbols which
Friday, Election or Referendum Day, and
pertain to or in any manner used in the game of
registration days for referendums and elections;
jueteng, jai-alai or horse racing bookies and similar
game or lottery which has taken place or about to take
• Only municipal and city mayors are allowed to place.
issue licenses for such.
Section 2. Barangay Official. – Any
barangay official in whose jurisdiction such gambling
Presidential Decree No. 1602 (Simplifying and house is found and which house has the reputation of a
Providing Stiffer Penalties for Violations of gambling place shall suffer the penalty of prision
Philippine Gambling Laws) correccional in its medium period and a fine ranging
from Five Hundred to Two Thousand Pesos and
Section 1. Violations and Penalties. -- The temporary absolute disqualifications.
penalty of prision mayor in its medium degree or a fine
ranging from Five Hundred Pesos to Two Thousand
Pesos and in case of recidivism the penalty of prision While the acts under the Revised Penal Code are still
correccional in its medium degree or a fine of ranging punished under the new law, yet the concept of
from One Thousand Pesos to Six Thousand Pesos gambling under it has been changed by the new
shall be imposed upon: gambling law.
(a) Any person other than those referred to Before, the Revised Penal Code considered the skill of
in the succeeding subsection who in any manner, shall the player in classifying whether a game is gambling or
directly or indirectly take part in any game of
cockfighting, jueteng, bookies (jai- alai or horse racing

37
not. But under the new gambling law, the skill of the lottery is a gambling game. Public is not made
players is immaterial. to pay a higher price.

Any game is considered gambling where there are bets Illustrations:

or wagers placed with the hope to win a prize
therefrom. (1) A certain supermarket wanted to increase its
sales and sponsored a lottery where valuable
Under this law, even sports contents like boxing, would prices are offered at stake. To defray the cost
be gambling insofar as those who are betting therein of the prices offered in the lottery, the
are concerned. Under the old penal code, if the skill of management increased their prices of the
the player outweighs the chance or hazard involved in merchandise by 10 cents each. Whenever
winning the game, the game is not considered someone buys from that supermarket, he pays
gambling but a sport. It was because of this that 10 cents more for each merchandise and for
betting in boxing and basketball games proliferated. his purchase, he gets a coupon which is to be
dropped at designated drop boxes to be raffled
“Unless authorized by a franchise, any form of on a certain period.
gambling is illegal.” So said the court in the recent
resolution of the case against the operation of jai-alai. The increase of the price is to answer for the
cost of the valuable prices that will be covered
There are so-called parlor games which have been at stake. The increase in the price is the
exempted from the operation of the decree like when consideration for the chance to win in the
the games are played during a wake to keep the lottery and that makes the lottery a gambling
mourners awake at night. Pursuant to a memorandum game.
circular issued by the Executive Branch, the offshoot of
the exemption is the intentional prolonging of the wake But if the increase in prices of the articles or
of the dead by gambling lords. commodities was not general, but only on
certain items and the increase in prices is not
As a general rule, betting or wagering determines the same, the fact that a lottery is sponsored
whether a game is gambling or not. Exceptions: does not appear to be tied up with the increase
These are games which are expressly prohibited even in prices, therefore not illegal.
without bets. Monte, jueteng or any form of lottery; dog
races; slot machines; these are habit-forming and Also, in case of manufacturers, you have to
addictive to players, bringing about the pernicious determine whether the increase in the price
effects to the family and economic life of the players. was due to the lottery or brought about by the
normal price increase. If the increase in price
Mere possession of lottery tickets or lottery lists is a is brought about by the normal price increase
crime punished also as part of gambling. However, it is [economic factor] that even without the lottery
necessary to make a distinction whether a ticket or list the price would be like that, there is no
refers to a past date or to a future date. consideration in favor of the lottery and the
lottery would not amount to a gambling game.
Illustration:
If the increase in the price is due particularly to
X was accused one night and found in his possession the lottery, then the lottery is a gambling game.
was a list of jueteng. If the date therein refers to the And the sponsors thereof may be prosecuted
past, X cannot be convicted of gambling or illegal for illegal gambling under Presidential Decree
possession of lottery list without proving that such No. 1602.
game was indeed played on the date stated. Mere
possession is not enough. If the date refers to the (2) The merchandise is not really saleable
future, X can be convicted by the mere possession with because of its inferior quality. A certain
intent to use. This will already bring about criminal manufacturer, Bhey Company, manufacture
liability and there is no need to prove that the game cigarettes which is not saleable because the
was played on the date stated. If the possessor was same is irritating to the throat, sponsored a
caught, chances are he will not go on with it anymore. lottery and a coupon is inserted in every pack
of cigarette so that one who buys it shall have a
There are two criteria as to when the lottery is in fact chance to participate. Due to the coupons, the
becomes a gambling game: public started buying the cigarette. Although
there was no price increase in the cigarettes,
1. If the public is made to pay not only for the the lottery can be considered a gambling game
merchandise that he is buying, but also for the because the buyers were really after the
chance to win a prize out of the lottery, lottery coupons not the low quality cigarettes.
becomes a gambling game. Public is made to
pay a higher price. If without the lottery or raffle, the public does
not patronize the product and starts to
2. If the merchandise is not saleable because of patronize them only after the lottery or raffle, in
its inferior quality, so that the public actually effect the public is paying for the price not the
does not buy them, but with the lottery the product.
public starts patronizing such merchandise. In
effect, the public is paying for the lottery and
not for the merchandise, and therefore the

38
Under this decree, a barangay captain who is
responsible for the existence of gambling dens in their (1) A man and a woman enters a movie house
own locality will be held liable and disqualified from which is a public place and then goes to the
office if he fails to prosecute these gamblers. But this darkest part of the balcony and while there the
is not being implemented. man started performing acts of lasciviousness
on the woman.
Gambling, of course, is legal when authorized by law.
If it is against the will of the woman, the crime
Fund-raising campaigns are not gambling. They are for would be acts of lasciviousness. But if there is
charitable purposes but they have to obtain a permit mutuality, this constitutes grave scandal.
from Department of Social Welfare and Development. Public view is not necessary so long as it is
This includes concerts for causes, Christmas caroling, performed in a public place.
and the like.
(2) A man and a woman went to Luneta and slept
there. They covered themselves their blanket
Article 200. Grave Scandal and made the grass their conjugal bed.

Elements This is grave scandal.

1. Offender performs an act or acts; (3) In a certain apartment, a lady tenant had the
habit of undressing in her room without shutting
2. Such act or acts be highly scandalous as the blinds. She does this every night at about
offending against decency or good customs; 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.
3. The highly scandalous conduct is not expressly She was charged of grave scandal. Her
falling within any other article of this Code; and defense was that she was doing it in her own
house.
4. The act or acts complained of be committed in
a public place or within the public knowledge or It is no defense that she is doing it in her
view. private home. It is still open to the public view.

(4) In a particular building in Makati which stands

In grave scandal, the scandal involved refers to moral right next to the house of a young lady who
scandal offensive to decency, although it does not goes sunbathing in her poolside. Every
disturb public peace. But such conduct or act must be morning several men in the upper floors would
open to the public view. stick their heads out to get a full view of said
lady while in her two-piece swimsuit. The lady
In alarms and scandals, the scandal involved refers to was then charged with grave scandal. Her
disturbances of the public tranquility and not to acts defense was that it is her own private pool and
offensive to decency. it is those men looking down at her who are
malicious.
Any act which is notoriously offensive to decency may
bring about criminal liability for the crime of grave This is an act which even though done in a
scandal provided such act does not constitute some private place is nonetheless open to public
other crime under the Revised Penal Code. Grave view.
scandal is a crime of last resort.

Distinction should be made as to the place where the Article 201. Immoral Doctrines, Obscene
offensive act was committed, whether in the Publications and Exhibitions and Indecent Shows
public place or in a private place:
Acts punished
(1) In public place, the criminal liability arises
irrespective of whether the immoral act is open 1. Those who shall publicly expound or proclaim
to the public view. In short public view is not doctrines openly contrary to public morals;
required.
2. a. The authors of obscene literature,
(2) When act offensive to decency is done in a published with their knowledge in any form, the
private place, public view or public knowledge editors publishing such literature; and the
is required. owners/operators of the establishment selling
the same;
Public view does not require numerous persons. Even
if there was only one person who witnessed the b. Those who, in theaters, fairs,
offensive act for as long as the third person was not an cinematographs, or any other place,
intruder, grave scandal is committed provided the act exhibit indecent or immoral plays,
does not fall under any other crime in the Revised scenes, acts, or shows, it being
Penal Code. understood that the obscene literature or
indecent or immoral plays, scenes, acts
Illustrations: or shows, whether live or in film, which

39
 are proscribed by virtue hereof, shall pornographic or not, if such body approves the work
include those which: (1) glorify criminals the same should not be charged under this title.
or condone crimes; (2) serve no other Because of this, the test of obscenity may be obsolete
purpose but to satisfy the market for already. If allowed by the Movies and Television
violence, lust or pornography; (3) Review and Classification Board (MTRCB), the
offend any race, or religion; (4) question is moot and academic.
tend to abet traffic in and use of
prohibited drugs; and (5) are contrary to The law is not concerned with the moral of one person.
law, public order, morals, good customs, As long as the pornographic matter or exhibition is
established policies, lawful orders, decrees and made privately, there is no crime committed under the
edicts; and Revised Penal Code because what is protected is the
morality of the public in general. Third party is there.
3. Those who shall sell, give away, or exhibit Performance of one to another is not.
films, prints, engravings, sculptures, or
literature which are offensive to morals. Illustration:

A sexy dancing performed for a 90 year old is not

Article 202. Vagrants and Prostitutes; Penalty obscene anymore even if the dancer strips naked. But
if performed for a 15 year old kid, then it will corrupt the
Vagrants kid’s mind. (Apply Kottinger Rule here.)

1. Any person having no apparent means of In some instances though, the Supreme Court did not
subsistence, who has the physical ability to stick to this test. It also considered the intention of the
work and who neglects to apply himself or performer.
herself to some lawful calling;
In People v. Aparici, the accused was a performer in
the defunct Pacific Theatre, a movie house
2. Any person found loitering about public or
which opens only at midnight. She was
semi-public buildings or places or trampling or
arrested because she was dancing in a
wandering about the country or the streets
“different kind of way.” She was not really
without visible means of support;
nude. She was wearing some sort of an
abbreviated bikini with a flimsy cloth over it.
3. Any idle or dissolute person who ledges in However, on her waist hung a string with a ball
houses of ill fame; reaching down to her private part so that every
time she gyrates, it arouses the audience when
4. Ruffians or pimps and those who habitually the ball would actually touch her private part.
associate with prostitutes; The defense set up by Aparici was that she
should not be criminally liable for as a matter of
5. Any person who, not being included in the fact, she is better dressed than the other
provisions of other articles of this Code, shall dancers. The Supreme Court ruled that it is not
be found loitering in any inhabited or only the display of the body that gives it a
uninhabited place belonging to another without depraved meaning but rather the movement of
any lawful or justifiable purpose; the body coupled with the “tom-tom drums” as
background. Nudity alone is not the real scale.
6. Prostitutes, who are women who, for money or (Reaction Test)
profit, habitually indulge in sexual intercourse or
lascivious conduct. Illustration:

A sidewalk vendor was arrested and prosecuted for

Prostitutes are women who, for money or profit, violation of Article 201. It appears that the fellow was
habitually indulge in sexual intercourse or lascivious selling a ballpen where one who buys the ballpen can
conduct, are deemed to be prostitutes. peep into the top of the pen and see a girl dancing in it.
He put up the defense that he is not the manufacturer
Test of Obscenity: Whether or not the material charged and that he was merely selling it to earn a living. The
as obscene has the tendency to deprave and corrupt fact of selling the ballpen was being done at the
the minds of those open to the influence thereof, or into expense of public morals. One does not have to be
whose hands such material may come to (Kottinger the manufacturer to be criminally liable. This holds true
Rule). for those printing or selling Playboy Magazines.

The test is objective. It is more on the effect upon the The common concept of a vagrant is a person who
viewer and not alone on the conduct of the performer. loiters n public places without any visible means of
livelihood and without any lawful purpose.
If the material has the tendency to deprave and corrupt
the mind of the viewer then the same is obscene and While this may be the most common form of vagrancy,
where such obscenity is made publicly, criminal liability yet even millionaires or one who has more that enough
arises. for his livelihood can commit vagrancy by habitually
associating with prostitutes, pimps, ruffians, or by
Because there is a government body which deliberates habitually lodging in houses of ill-repute.
whether a certain exhibition, movies and plays is

40
Vagrancy is not only a crime of the privileged or the
poor. The law punishes the act involved here as a
stepping stone to the commission of other crimes.
Without this article, law enforcers would have no way of TITLE VII. CRIMES COMMITTED BY PUBLIC
checking a person loitering in the wrong place in the OFFICERS
wrong time. The purpose of the law is not simply to
punish a person because he has no means of Crimes committed by public officers
livelihood; it is to prevent further criminality. Use this
when someone loiters in front of your house every 1. Knowingly rendering unjust judgment (Art. 204);
night.
2. Judgment rendered through negligence (Art.
Any person found wandering in an estate belonging to 205);
another whether public or private without any lawful
purpose also commits vagrancy, unless his acts 3. Unjust interlocutory order (Art. 206);
constitutes some other crime in the Revised Penal
Code. 4. Malicious delay in the administration of justice
(Art. 207);

5. Prosecution of offenses; negligence and

Question & Answer
tolerance (Art. 208);

If a person is found wandering in an estate 6. Betrayal of trust by an attorney or solicitor –

belonging to another, whether public or private, without Revelation of secrets (Art. 209);
any lawful purpose, what other crimes may be
committed? 7. Direct bribery (Art. 210);

When a person is apprehended loitering inside 8. Indirect bribery (Art. 211);

an estate belonging to another, the following crimes
may be committed: 9. Qualified bribery (Art. 211-A);

(1) Trespass to property under Article 281 if the 10. Corruption of public officials (Art. 212);
estate is fenced and there is a clear prohibition
against entering, but the offender entered 11. Frauds against the public treasury and similar
without the consent of the owner or overseer offenses (Art. 213);
thereof. What is referred to here is estate, not
dwelling. 12. Other frauds (Art. 214);

(2) Attempted theft under Article 308, paragraph 3, 13. Prohibited transactions (Art. 215);
if the estate is fenced and the offender entered
the same to hunt therein or fish from any 14. Possession of prohibited interest by a public
waters therein or to gather any farm products officer (Art. 216);
therein without the consent of the owner or
overseer thereof; 15. Malversation of public funds or property –
Presumption of malversation (Art. 217)
(3) Vagrancy under Article 202 if the estate is not
fenced or there is no clear prohibition against 16. Failure of accountable officer to render
entering. accounts (Art. 218);

17. Failure of a responsible public officer to render

Prostitution and vagrancy are both punished by the accounts before leaving the country (Art. 219);
same article, but prostitution can only be committed by
a woman. 18. Illegal use of public funds or property (Art. 220);

The term prostitution is applicable to a woman who for 19. Failure to make delivery of public funds or
profit or money habitually engages in sexual or property (Art. 221);
lascivious conduct. A man if he engages in the same
conduct – sex for money – is not a prostitute, but a 20. Conniving with or consenting to evasion (Art.
vagrant. 223);

In law the mere indulging in lascivious conduct 21. Evasion through negligence (Art. 224);
habitually because of money or gain would amount to
prostitution, even if there is no sexual intercourse. 22. Escape of prisoner under the custody of a
Virginity is not a defense. Habituality is the controlling person not a public officer (Art. 225);
factor; is has to be more than one time.
23. Removal, concealment or destruction of
There cannot be prostitution by conspiracy. One who documents (Art. 226);
conspires with a woman in the prostitution business like
pimps, taxi drivers or solicitors of clients are guilty of 24. Officer breaking seal (Art. 227);
the crime under Article 341 for white slavery.

41
25. Opening of closed documents (Art. 228); 2. His authority to take part in the performance of
public functions or to perform public duties
26. Revelation of secrets by an officer (Art. 229); must be –

27. Public officer revealing secrets of private

individual (Art. 230); a. By direct provision of the law;

28. Open disobedience (Art. 231); b. By popular election; or

29. Disobedience to order of superior officer when c. By appointment by competent

said order was suspended by inferior officer authority.
(Art. 232);

30. Refusal of assistance (Art. 233); Originally, Title VII used the phrase “public officer or
employee” but the latter word has been held
31. Refusal to discharge elective office (Art. 234); meaningless and useless because in criminal law,
“public officer” covers all public servants, whether an
32. Maltreatment of prisoners (Art. 235); official or an employee, from the highest to the lowest
position regardless of rank or class; whether appointed
33. Anticipation of duties of a public office (Art. by competent authority or by popular election or by
236); direct provision of law.

34. Prolonging performance of duties and powers Under Republic Act No. 3019 (The Anti-Graft and
(Art. 237); Corrupt Practices Act), the term public officer is broader
and more comprehensive because it includes all
35. Abandonment of office or position (Art. 238); persons whether an official or an employee, temporary
or not, classified or not, contractual or otherwise. Any
36. Usurpation of legislative powers (Art. 239); person who receives compensation for services
rendered is a public officer.
37. Usurpation of executive functions (Art. 240);
Breach of oath of office partakes of three forms:
38. Usurpation of judicial functions (Art. 241);
(1) Malfeasance - when a public officer performs in
39. Disobeying request for disqualification (Art. his public office an act prohibited by law.
242);
Example: bribery.
40. Orders or requests by executive officers to any
judicial authority (Art. 243); (2) Misfeasance - when a public officer performs
official acts in the manner not in accordance
41. Unlawful appointments (Art. 244); and with what the law prescribes.

42. Abuses against chastity (Art. 245). (3) Nonfeasance - when a public officer willfully
refrains or refuses to perform an official duty
which his office requires him to perform.
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 Article 204. Knowingly Rendering Unjust Judgment
with a public officer, or an accomplice, or accessory to
the crime. The public officer has to be the principal. 1. Offender is a judge;

In some cases, it can even be committed by a private 2. He renders a judgment in a case submitted to
citizen alone such as in Article 275 (infidelity in the him for decision;
custody of a prisoner where the offender is not a public
officer) or in Article 222 (malversation).
3. Judgment is unjust;

Requsites to be a public officer under Article 203 4. The judge knows that his judgment is unjust .

1. Taking part in the performance of public

functions in the government; Article 205. Judgment Rendered through
Negligence
or
1. Offender is a judge;
Performing in said government or in any of its
branches public duties as an employee, agent 2. He renders a judgment in a case submitted to
or subordinate official, or any rank or class; him for decision;

3. The judgment is manifestly unjust;

42
4. It is due to his inexcusable negligence or 2. Maliciously tolerating the commission of
ignorance. offenses.

Article 206. Unjust Interlocutory Order Elements of dereliction of duty in the prosecution of
offenses
1. Offender is a judge;
1. Offender is a public officer or officer of the law
2. He performs any of the following acts: who has a duty to cause the prosecution of, or
to prosecute, offenses;
a. Knowingly rendering an unjust
interlocutory order or decree; or 2. There is a dereliction of the duties of his office,
that is, knowing the commission of the crime,
b. Rendering a manifestly unjust he does not cause the prosecution of the
interlocutory order or decree through criminal, or knowing that a crime is about to be
inexcusable negligence or ignorance. committed, he tolerates its commission;

3. Offender acts with malice and deliberate intent

The crime of knowingly rendering an unjust judgment, to favor the violator of the law.
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 A public officer engaged in the prosecution of offenders
appellate court, not only one magistrate renders or shall maliciously tolerate the commission of crimes or
issues the interlocutory order. An appellate court refrain from prosecuting offenders or violators of the
functions as a division and the resolutions thereof are law.
handed down only after deliberations among the
members of a division so that it cannot be said that This crime can only be committed by a public officer
there is malice or inexcusable negligence or ignorance whose official duty is to prosecute offenders, that is,
in the rendering of a judgment or order that is state prosecutors. Hence, those officers who are not
supposedly unjust as held by the Supreme Court in one duty bound to perform these obligations cannot commit
administrative case. this crime in the strict sense.

There is more injustice done in cases of judgment than When a policeman tolerates the commission of a crime
mere interlocutory order that is why the penalty is or otherwise refrains from apprehending the offender,
higher in the first case. such peace officer cannot be prosecuted for this crime
but they can be prosecuted as:

Article 207. Malicious Delay in the Administration (1) An accessory to the crime committed by the
of Justice principal in accordance with Article 19,
paragraph 3; or
1. Offender is a judge;
(2) He may become a fence if the crime committed
2. There is a proceeding in his court; is robbery or theft, in which case he violates the
Anti-Fencing Law; or
3. He delays in the administration of justice; (3) He may be held liable for violating the Anti-
Graft and Corrupt Practices Act.
4. The delay is malicious, that is, with deliberate
intent to inflict damage on either party in the However, in distant provinces or municipalities where
case. 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
Malice must be proven. Malice is present where the offenders to escape, he can be prosecuted under this
delay is sought to favor one party to the prejudice of the article.
other.
This is also true in the case of a barangay chairman.
These have been interpreted by the Supreme Court to They are supposed to prosecute violators of laws within
refer only to judges of the trial court. their jurisdiction. If they do not do so, they can be
prosecuted for this crime.

Article 208. Prosecution of Offenses; Negligence Prevaricacion

and Tolerance
This used to be a crime under the Spanish Codigo
Acts Punished Penal, wherein a public officer regardless of his duty
violates the oath of his office by not carrying out the
1. Maliciously refraining from instituting duties of his office for which he was sworn to office,
prosecution against violators of the law; thus, amounting to dereliction of duty.

43
But the term prevaricacion is not limited to dereliction of If the crime was qualified bribery, the dereliction of the
duty in the prosecution of offenders. It covers any duty punished under Article 208 of the Revised Penal
dereliction of duty whereby the public officer involved Code should be absorbed because said article
violates his oath of office. The thrust of prevaricacion is punishes the public officer who “maliciously refrains
the breach of the oath of office by the public officer who from instituting prosecution for the punishment of
does an act in relation to his official duties. violators of the law or shall tolerate the commission of
offenses”. The dereliction of duty referred to is
While in Article 208, dereliction of duty refers only to necessarily included in the crime of qualified bribery.
prosecuting officers, the term prevaricacion applies to
public officers in general who is remiss or who is On the other hand, if the crime was direct bribery under
maliciously refraining from exercising the duties of his Article 210 of the Revised Penal Code, the public
office. officer involved should be prosecuted also for the
dereliction of duty, which is a crime under Article 208 of
Illustration: the Revised Penal Code, because the latter is not
absorbed by the crime of direct bribery. This is
The offender was caught for white slavery. The because in direct bribery, where the public officer
policeman allowed the offender to go free for some agreed to perform an act constituting a crime in
consideration. The policeman does not violate Article connection with the performance of his official duties,
208 but he becomes an accessory to the crime of white Article 210 expressly provides that the liabilty
slavery. thereunder shall be “in addition to the penalty
corresponding to the crime agreed upon, if the crime
But in the crime of theft or robbery, where the shall have been committed.
policeman shared in the loot and allowed the offender
to go free, he becomes a fence. Therefore, he is Illustration:
considered an offender under the Anti-Fencing Law.
A fiscal, for a sum of money, refrains from prosecuting
Relative to this crime under Article 208, consider the a person charged before him. If the penalty for the
crime of qualified bribery. Among the amendments crime involved is reclusion perpetua, the fiscal commits
made by Republic Act No. 7659 on the Revised Penal qualified bribery. If the crime is punishable by a penalty
Code is a new provision which reads as follows: lower than reclusion perpetua, the crime is direct
bribery.
Article. 211-A. Qualified
Bribery – If any public officer is In the latter situation, three crimes are committed:
entrusted with law enforcement and he direct bribery and dereliction of duty on the part of the
refrains from arresting or prosecuting fiscal; and corruption of a public officer by the giver.
an offender who has committed a
crime punishable by Reclusion
Perpetua and/or death in consideration Article 209. Betrayal of Trust by An Attorney or
of any offer, promise, gift, or present, Solicitor – Revelation of Secrets
he shall suffer the penalty for the
offense which was not prosecuted. Acts punished

If it is the public officer who 1. Causing damage to his client, either—

asks or demands such gift or present,
he shall suffer the penalty of death. a. By any malicious breach of
professional duty;

Actually the crime is a kind of direct bribery where the b. By inexcusable negligence or
bribe, offer, promise, gift or present has a consideration ignorance.
on the part of the public officer, that is refraining from
arresting or prosecuting the offender in consideration Note: When the attorney acts with malicious
for such offer, promise, gift or present. In a way, this abuse of his employment or inexcusable
new provision modifies Article 210 of the Revised Penal negligence or ignorance, there must be
Code on direct bribery. damage to his client.

However, the crime of qualified bribery may be 2. Revealing any of the secrets of his client
committed only by public officers “entrusted with learned by him in his professional capacity;
enforcement” whose official duties authorize then to
arrest or prosecute offenders. Apparently, they are 3. Undertaking the defense of the opposing party
peace officers and public prosecutors since the in the same case, without the consent of his
nonfeasance refers to “arresting or prosecuting.” But first client, after having undertaken the defense
this crime arises only when the offender whom such of said first client of after having received
public officer refrains from arresting or prosecuting, has confidential information from said client.
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 Under the rules on evidence, communications made
would amount to direct bribery, not qualified bribery. with prospective clients to a lawyer with a view to
engaging his professional services are already
privileged even though the client-lawyer relationship did

44
not eventually materialize because the client cannot (5) Undertaking the defense of the opposite party
afford the fee being asked by the lawyer. The lawyer in a case without the consent of the first client
and his secretary or clerk cannot be examined thereon. whose defense has already been undertaken.

That this communication with a prospective client is Note that only numbers 1, 2 and 3 must approximate
considered privileged, implies that the same is malice.
confidential. Therefore, if the lawyer would reveal the
same or otherwise accept a case from the adverse A lawyer who had already undertaken the case of a
party, he would already be violating Article 209. Mere client cannot later on shift to the opposing party. This
malicious breach without damage is not violative of cannot be done.
Article 209; at most he will be liable administratively as
a lawyer, e.g., suspension or disbarment under the Under the circumstances, it is necessary that the
Code of Professional Responsibility. confidential matters or information was confided to the
lawyer in the latter’s professional capacity.
Illustration:
It is not the duty of the lawyer to give advice on the
B, who is involved in the crime of seduction wanted A, commission of a future crime. It is, therefore, not
an attorney at law, to handle his case. A received privileged in character. The lawyer is not bound by the
confidential information from B. However, B cannot mandate of privilege if he reports such commission of a
pay the professional fee of A. C, the offended party, future crime. It is only confidential information relating
came to A also and the same was accepted. to crimes already committed that are covered by the
crime of betrayal of trust if the lawyer should undertake
A did not commit the crime under Article 209, although the case of opposing party or otherwise divulge
the lawyer’s act may be considered unethical. The confidential information of a client.
client-lawyer relationship between A and B was not yet
established. Therefore, there is no trust to violate Under the law on evidence on privileged
because B has not yet actually engaged the services of communication, it is not only the lawyer who is
the lawyer A. A is not bound to B. However, if A would protected by the matter of privilege but also the office
reveal the confidential matter learned by him from B, staff like the secretary.
then Article 209 is violated because it is enough that
such confidential matters were communicated to him in The nominal liability under this article may be
his professional capacity, or it was made to him with a constituted either from breach of professional duties in
view to engaging his professional services. the handling of the case or it may arise out of the
confidential relation between the lawyer and the client.
Here, matters that are considered confidential must
have been said to the lawyer with the view of engaging Breach of professional duty
his services. Otherwise, the communication shall not be
considered privileged and no trust is violated. Tardiness in the prosecution of the case for which
reason the case was dismissed for being non-
Illustration: prosecuted; or tardiness on the part of the defense
counsel leading to declaration of default and adverse
A went to B, a lawyer/notary public, to have a judgment.
document notarized. A narrated to B the detail of the
criminal case. If B will disclose what was narrated to Professional duties – Lawyer must appear on time. But
him there is no betrayal of trust since B is acting as a the client must have suffered damage due to the
notary public and not as a counsel. The lawyer must breach of professional duty. Otherwise, the lawyer
have learned the confidential matter in his professional cannot be held liable.
capacity.
If the prosecutor was tardy and the case was dismissed
Several acts which would make a lawyer criminally as non-prosecuted, but he filed a motion for
liable: consideration which was granted, and the case was
continued, the lawyer is not liable, because the client
(1) Maliciously causing damage to his client did not suffer damage.
through a breach of his professional duty. The
breach of professional duty must be malicious. If lawyer was neglectful in filing an answer, and his
If it is just incidental, it would not give rise to client declared in default, and there was an adverse
criminal liability, although it may be the subject judgment, the client suffered damages. The lawyer is
of administrative discipline; liable.

(2) Through gross ignorance, causing damage to Breach of confidential relation

the client;
Revealing information obtained or taking advantage
(3) Inexcusable negligence; thereof by accepting the engagement with the adverse
party. There is no need to prove that the client suffered
(4) Revelation of secrets learned in his damages. The mere breach of confidential relation is
professional capacity; punishable.

In a conjugal case, if the lawyer disclosed the

confidential information to other people, he would be

45
 criminally liable even though the client did not suffer If he simply accepts a gift or present given to him by
any damage. reason of his public position, the crime is indirect
bribery. Bear in mind that the gift is given "by reason of
The client who was suing his wife disclosed that he his office", not "in consideration" thereof. So never use
also committed acts of unfaithfulness. The lawyer the term “consideration.” The public officer in Indirect
talked about this to a friend. He is, thus, liable. bribery is not to perform any official act.

Note however that what may begin as an indirect

Article 210. Direct Bribery bribery may actually ripen into direct bribery.

Acts punished Illustration:

1. Agreeing to perform, or performing, in Without any understanding with the public officer, a taxi
consideration of any offer, promise, gift or operator gave an expensive suiting material to a BLT
present – an act constituting a crime, in registrar. Upon receipt by the BLT registrar of his
connection with the performance of his official valuable suiting material, he asked who the giver was.
duties; He found out that he is a taxi operator. As far as the
giver is concerned, he is giving this by reason of the
2. Accepting a gift in consideration of the office or position of the public officer involved. It is just
execution of an act which does not constitute a indirect bribery
crime, in connection with the performance of .
his official duty; If the BLT registrar calls up his subordinates and said
to take care of the taxis of the taxi operator so much so
3. Agreeing to refrain, or by refraining, from doing that the registration of the taxis is facilitated ahead of
something which it is his official duty to do, in the others, what originally would have been indirect
consideration of gift or promise. bribery becomes direct bribery.

In direct bribery, consider whether the official act, which

Elements the public officer agreed to do, is a crime or
not.
1. Offender is a public officer within the scope of
Article 203; If it will amount to a crime, it is not necessary that the
corruptor should deliver the consideration or the doing
2. Offender accepts an offer or a promise or of the act. The moment there is a meeting of the
receives a gift or present by himself or through minds, even without the delivery of the consideration,
another; even without the public officer performing the act
amounting to a crime, bribery is already committed on
3. Such offer or promise be accepted, or gift or the part of the public officer. Corruption is already
present received by the public officer – committed on the part of the supposed giver. The
reason is that the agreement is a conspiracy involving
a. With a view to committing some crime; the duty of a public officer. The mere agreement is a
or felony already.

If the public officer commits the act which constitutes

b. In consideration of the execution of an the crime, he, as well as the corruptor shall be liable
act which does not constitute a crime, but the act must also for that other crime.
be unjust; or
Illustrations:
c. To refrain from doing something which
it is his official duty to do. (1) If the corruptor offers a consideration to a
custodian of a public record to remove certain
4. The act which offender agrees to perform or files, the mere agreement, without delivery of
which he executes be connected with the the consideration, brings about the crime of
performance of his official duties. direct bribery and corruption of public official.

If the records were actually removed, both the

It is a common notion that when you talk of bribery, you public officer and the corruptor will in addition
refer to the one corrupting the public officer. Invariably, to the two felonies above, will also be liable for
the act refers to the giver, but this is wrong. Bribery the crime committed, which is infidelity in the
refers to the act of the receiver and the act of the giver custody of the public records for which they
is corruption of public official. shall be liable as principals; one as principal by
inducement, the other as principal by direct
Distinction between direct bribery and indirect bribery participation.

Bribery is direct when a public officer is called upon to (2) A party litigant approached the court’s
perform or refrain from performing an official act in stenographer and proposed the idea of altering
exchange for the gift, present or consideration given to the transcript of stenographic notes. The court
him. stenographer agreed and he demanded P
2,000.00.

46
 performed all the acts of execution to produce the
Unknown to them, there were law enforcers felony without consummating the same.
who already had a tip that the court
stenographer had been doing this before. So Actually, you cannot have a giver unless there is one
they were waiting for the chance to entrap him. who is willing to receive and there cannot be a receiver
They were apprehended and they said they unless there is one willing to give. So this crime
have not done anything yet. requires two to commit. It cannot be said, therefore,
that one has performed all the acts of execution which
Under Article 210, the mere agreement to would produce the felony as a consequence but for
commit the act, which amounts to a crime, is reasons independent of the will, the crime was not
already bribery. That stenographer becomes committed.
liable already for consummated crime of bribery
and the party who agreed to give that money is It is now settled, therefore, that the crime of bribery and
already liable for consummated corruption, corruption of public officials cannot be committed in the
even though not a single centavo is delivered frustrated stage because this requires two to commit
yet and even though the stenographer had not and that means a meeting of the minds.
yet made the alterations.
Illustrations:
If he changed the transcript, another crime is
committed: falsification. (1) If the public official accepted the corrupt
consideration and turned it over to his superior
as evidence of the corruption, the offense is
The same criterion will apply with respect to a public attempted corruption only and not frustrated.
officer who agrees to refrain from performing his official The official did not agree to be corrupted.
duties. If the refraining would give rise to a crime, such
as refraining to prosecute an offender, the mere If the public officer did not report the same to
agreement to do so will consummate the bribery and his superior and actually accepted it, he
the corruption, even if no money was delivered to him. allowed himself to be corrupted. The corruptor
If the refraining is not a crime, it would only amount to becomes liable for consummated corruption of
bribery if the consideration be delivered to him. public official. The public officer also becomes
equally liable for consummated bribery.
If it is not a crime, the consideration must be delivered
by the corruptor before a public officer can be (2) If a public official demanded something from a
prosecuted for bribery. Mere agreement, is not enough taxpayer who pretended to agree and use
to constitute the crime because the act to be done in marked money with the knowledge of the
the first place is legitimate or in the performance of the police, the crime of the public official is
official duties of the public official. attempted bribery. The reason is that because
the giver has no intention to corrupt her and
Unless the public officer receives the consideration for therefore, he could not perform all the acts of
doing his official duty, there is no bribery. It is execution.
necessary that there must be delivery of monetary
consideration. This is so because in the second Be sure that what is involved is a crime of
situation, the public officer actually performed what he bribery, not extortion. If it were extortion, the
is supposed to perform. It is just that he would not crime is not bribery, but robbery. The one who
perform what he is required by law to perform without yielded to the demand does not commit
an added consideration from the public which gives rise corruption of a public officer because it was
to the crime. involuntary.

The idea of the law is that he is being paid salary for

being there. He is not supposed to demand additional Article 211. Indirect Bribery
compensation from the public before performing his
public service. The prohibition will apply only when the Elements
money is delivered to him, or if he performs what he is
supposed to perform in anticipation of being paid the 1. Offender is a public officer;
money.
2. He accepts gifts;
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 3. The gifts are offered to him by reason of his
crime is not committed. office.

Direct bribery may be committed only in the attempted

and consummated stages because, in frustrated felony, The public official does not undertake to perform an act
the offender must have performed all the acts of or abstain from doing an official duty from what he
execution which would produce the felony as a received. Instead, the official simply receives or
consequence. In direct bribery, it is possible only if the accepts gifts or presents delivered to him with no other
corruptor concurs with the offender. Once there is reason except his office or public position. This is
concurrence, the direct bribery is already always in the consummated stage. There is no
consummated. In short, the offender could not have attempted much less frustrated stage in indirect bribery.

47
The Supreme Court has laid down the rule that for (2) He must willingly testify against the public
indirect bribery to be committed, the public officer must officer involved in the case to be filed against
have performed an act of appropriating of the gift for the latter.
himself, his family or employees. It is the act of
appropriating that signifies acceptance. Merely Before the bribe-giver may be dropped from the
delivering the gift to the public officer does not bring information, he has to be charged first with the receiver.
about the crime. Otherwise it would be very easy to Before trial, prosecutor may move for dropping bribe-
remove a public officer: just deliver a gift to him. giver from information and be granted immunity. But
first, five conditions have to be met:

Article 211-A. Qualified Bribery (1) Information must refer to consummated bribery;

Elements (2) Information is necessary for the proper

conviction of the public officer involved;
1. Offender is a public officer entrusted with law
enforcement; (3) That the information or testimony to be given is
not yet in the possession of the government or
2. He refrains from arresting or prosecuting an known to the government;
offender who has committed a crime;
(4) That the information can be corroborated in its
material points;
3. Offender has committed a crime punishable by
reclusion perpetua and/or death; (5) That the information has not been convicted
previously for any crime involving moral
4. Offender refrains from arresting or prosecuting turpitude.
in consideration of any offer, promise, gift, or
present. These conditions are analogous to the conditions under
the State Witness Rule under Criminal Procedure.

Note that the penalty is qualified if the public officer is The immunity granted the bribe-giver is limited only to
the one who asks or demands such present. the illegal transaction where the informant gave
voluntarily the testimony. If there were other
transactions where the informant also participated, he is
Presidential Decree No. 46 not immune from prosecution. The immunity in one
transaction does not extend to other transactions.
Presidential Decree No. 46 prohibits giving and
acceptance of gifts by a public officer or to a public The immunity attaches only if the information given
officer, even during anniversary, or when there is an turns out to be true and correct. If the same is false,
occasion like Christmas, New Year, or any gift-giving the public officer may even file criminal and civil actions
anniversary. The Presidential Decree punishes both against the informant for perjury and the immunity
receiver and giver. under the decree will not protect him.

The prohibition giving and receiving gifts given by

reason of official position, regardless of whether or not Republic Act No. 7080 (Plunder)
the same is for past or future favors.
Plunder is a crime defined and penalized under
The giving of parties by reason of the promotion of a Republic Act No. 7080, which became effective in 1991.
public official is considered a crime even though it may This crime somehow modified certain crimes in the
call for a celebration. The giving of a party is not limited Revised Penal Code insofar as the overt acts by which
to the public officer only but also to any member of his a public officer amasses, acquires, or accumulates ill-
family. 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
Presidential Decree No. 749 (Article 214), malversation (Article 217), when the ill-
gotten wealth amounts to a total value of
The decree grants immunity from prosecution to a P50,000,000.00. The amount was reduced from
private person or public officer who shall voluntarily give P75,000,000.00 by Republic Act No. 7659 and the
information and testify in a case of bribery or in a case penalty was changed from life imprisonment to
involving a violation of the Anti-graft and Corrupt reclusion perpetua to death.
Practices Act.
Short of the amount, plunder does not arise. Any
It provides immunity to the bribe-giver provided he does amount less than P50,000,000.00 is a violation of the
two things: Revised Penal Code or the Anti-Graft and Corrupt
Practices Act.
(1) He voluntarily discloses the transaction he had
with the public officer constituting direct or Under the law on plunder, the prescriptive period is 20
indirect bribery, or any other corrupt years commencing from the time of the last overt act.
transaction;

48
Plunder is committed through a combination or series of corrupt practices. Some of them are mere repetitions
overt acts: of the act already penalized under the Revised Penal
Code, like prohibited transactions under Article 215 and
(1) Through misappropriation, conversion, misuse, 216. In such a case, the act or omission remains to be
or malversation of public funds or raids on the mala in se.
public treasury;
But there are acts penalized under the Anti-Graft and
(2) By receiving, directly or indirectly, any Corrupt Practices Act which are not penalized under
commission, gift, share, percentage, kickbacks the Revised Penal Code. Those acts may be
or any other form of pecuniary benefit from any considered as mala prohibita. Therefore, good faith is
person and/or entity in connection with any not a defense.
government contract or project by reason of the
office or position of the public officer; Illustration:

(3) By illegal or fraudulent conveyance or Section 3 (e) of the Anti-Graft and Corrupt Practices
disposition of asset belonging to the national Act – causing undue injury to the government or a
government or any of its subdivisions, agencies private party by giving unwarranted benefit to the party
or instrumentalities or government-owned or whom does not deserve the same.
controlled corporations and their subsidiaries;
In this case, good faith is not a defense because it is in
(4) By obtaining, receiving, or accepting directly or the nature of a malum prohibitum. Criminal intent on
indirectly any shares of stock, equity or any the part of the offender is not required. It is enough
other form of interest or participation including that he performed the prohibited act voluntarily. Even
the promise of future employment in any though the prohibited act may have benefited the
business or undertaking; government. The crime is still committed because the
law is not after the effect of the act as long as the act is
(5) By establishing agricultural, industrial, or prohibited.
commercial monopolies or other combinations
and/or implementations of decrees and orders Section 3 (g) of the Anti-Graft and Corrupt Practices
intended to benefit particular persons or special Act – where a public officer entered into a contract for
interests; or the government which is manifestly disadvantageous to
the government even if he did not profit from the
(6) By taking undue advantage of official position, transaction, a violation of the Anti-Graft and Corrupt
authority, relationship, connection or influence Practices Act is committed.
to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of If a public officer, with his office and a private enterprise
the Filipino people, and the Republic of the had a transaction and he allows a relative or member of
Philippines. 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
While the crime appears to be malum prohibitum, performed.
Republic Act No. 7080 provides that “in the imposition
of penalties, the degree of participation and the Where the public officer is a member of the board,
attendance of mitigating and aggravating panel or group who is to act on an application of a
circumstances shall be considered by the court”. 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
Republic Act No. 3019 (Anti-Graft and Corrupt the application, as long as he has an interest in that
Practices Act) business enterprise whose application is pending
before that board, panel or group, the public officer
The mere act of a public officer demanding an amount concerned shall be liable for violation of the Anti-Graft
from a taxpayer to whom he is to render public service and Corrupt Practices Act. His only course of action to
does not amount to bribery, but will amount to a avoid prosecution under the Anti-graft and Corrupt
violation of the Anti-graft and Corrupt Practices Act. Practices Act is to sell his interest in the enterprise
which has filed an application before that board, panel
Illustration: or group where he is a member. Or otherwise, he
should resign from his public position.
A court secretary received P500 .00 from a litigant to
set a motion for an early hearing. This is direct bribery Illustration:
even if the act to be performed is within his official duty
so long as he received a consideration therefor. Sen. Dominador Aytono had an interest in the Iligan
Steel Mills, which at that time was being subject of an
If the secretary persuaded the judge to make a investigation by the Senate Committee of which he was
favorable resolution, even if the judge did not do so, a chairman. He was threatened with prosecution under
this constitutes a violation of Anti-Graft and Corrupt Republic Act No. 3019 so he was compelled to sell all
Practices Act, Sub-Section A. his interest in that steel mill; there is no defense.
Because the law says so, even if he voted against it, he
Under the Anti-Graft and Corrupt Practices Act, commits a violation thereof.
particularly Section 3, there are several acts defined as

49
These cases are filed with the Ombudsman and not a matter pending before him for the purpose of
with the regular prosecutor’s office. Jurisdiction is obtaining any pecuniary or material benefit or
exclusively with the Sandiganbayan. The accused advantage in favor of or discriminating against another
public officer must be suspended when the case is interested party.
already filed with the Sandiganbayan.
The law itself additionally requires that the accused’s
Under the Anti-Graft and Corrupt Practices Act, the dereliction, besides being without justification, must be
public officer who is accused should not be for the purpose of obtaining from any person interested
automatically suspended upon the filing of the in the matter some pecuniary or material benefit or for
information in court. It is the court which will order the the purpose of favoring any interested party, or
suspension of the public officer and not the superior of discriminating against another interested party. This
that public officer. As long as the court has not ordered element is indispensable.
the suspension of the public officer involved, the
superior of that public officer is not authorized to order In other words, the neglect or refusal to act must
the suspension simply because of the violation of the motivated by gain or benefit, or purposely to favor the
Anti-Graft and Corrupt Practices Act. The court will not other interested party as held in Coronado v. SB,
order the suspension of the public officer without first decided on August 18, 1993.
passing upon the validity of the information filed in
court. Without a hearing, the suspension would be null Republic Act No. 1379 (Forfeiture of Ill-gotten
and void for being violative of due process. Wealth)

Illustration: Correlate with RA 1379 -- properly under Remedial

Law. This provides the procedure for forfeiture of the ill-
A public officer was assigned to direct traffic in a very gotten wealth in violation of the Anti-Graft and Corrupt
busy corner. While there, he caught a thief in the act of Practices Act. The proceedings are civil and not
lifting the wallet of a pedestrian. As he could not leave criminal in nature.
his post, he summoned a civilian to deliver the thief to
the precinct. The civilian agreed so he left with the thief. Any taxpayer having knowledge that a public officer has
When they were beyond the view of the policeman, the amassed wealth out of proportion to this legitimate
civilian allowed the thief to go home. What would be income may file a complaint with the prosecutor’s office
the liability of the public officer? of the place where the public officer resides or holds
office. The prosecutor conducts a preliminary
The liability of the traffic policeman would be merely investigation just like in a criminal case and he will
administrative. The civilian has no liability at all. forward his findings to the office of the Solicitor
Firstly, the offender is not yet a prisoner so there is no General. The Solicitor General will determine whether
accountability yet. The term “prisoner” refers to one there is reasonable ground to believe that the
who is already booked and incarcerated no matter how respondent has accumulated an unexplained wealth.
short the time may be.
If the Solicitor General finds probable cause, he would
The policeman could not be said as having assisted the file a petition requesting the court to issue a writ
escape of the offender because as the problem says, commanding the respondent to show cause why the ill-
he is assigned to direct traffic in a busy corner street. gotten wealth described in the petition should not be
So he cannot be considered as falling under the third forfeited in favor of the government. This is covered by
3rd paragraph of Article 19 that would constitute his as the Rules on Civil Procedure. The respondent is given
an accessory. 15 days to answer the petition. Thereafter trial would
proceed. Judgment is rendered and appeal is just like in
The same is true with the civilian because the crime a civil case. Remember that this is not a criminal
committed by the offender, which is snatching or a kind proceeding. The basic difference is that the preliminary
of robbery or theft as the case may be, is not one of investigation is conducted by the prosecutor.
those crimes mentioned under the third paragraph of
Article 19 of the Revised Penal Code.
Article 212. Corruption of Public Officials
Where the public officer is still incumbent, the
prosecution shall be with the Ombudsman.

Where the respondent is separated from service and

the period has not yet prescribed, the information shall
be filed in any prosecution’s 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

50
 intention to defraud the government. Also when certain
Elements supplies for the government are purchased for the high
price but its quantity or quality is low.
1. Offender makes offers or promises or gives
gifts or presents to a public officer; Illustrations:

2. The offers or promises are made or the gifts or (1) A public official who is in charge of procuring
presents given to a public officer, under supplies for the government obtained funds for
circumstances that will make the public officer the first class materials and buys inferior quality
liable for direct bribery or indirect bribery. products and pockets the excess of the funds.
This is usually committed by the officials of the
Department of Public Works and Highways.
Article 213. Frauds against the Public Treasury and
Similar Offenses (2) Poorest quality of ink paid as if it were of
superior quality.
Acts punished
(3) One thousand pieces of blanket for certain unit
1. Entering into an agreement with any interested of the Armed Forces of the Philippines were
party or speculator or making use of any other paid for but actually, only 100 pieces were
scheme, to defraud the government, in dealing bought.
with any person with regard to furnishing
supplies, the making of contracts, or the (4) The Quezon City government ordered 10,000
adjustment or settlement of accounts relating to but what was delivered was only 1,000 T-shirts,
public property or funds; the public treasury is defrauded because the
government is made to pay that which is not
2. Demanding, directly or indirectly, the payment due or for a higher price.
of sums different from or larger than those
authorized by law, in collection of taxes, Not all frauds will constitute this crime. There must be
licenses, fees, and other imposts; no fixed allocation or amount on the matter acted upon
by the public officer.
3. Failing voluntarily to issue a receipt, as
provided by law, for any sum of money The allocation or outlay was made the basis of
collected by him officially, in the collection of fraudulent quotations made by the public officer
taxes, licenses, fees, and other imposts; involved.

4. Collecting or receiving, directly or indirectly, by For example, there was a need to put some additional
way of payment or otherwise, things or objects lighting along the a street and no one knows how much
of a nature different from that provided by law, it will cost. An officer was asked to canvass the cost
in the collection of taxes, licenses, fees, and but he connived with the seller of light bulbs, pricing
other imposts. each light bulb at P550.00 instead of the actual price of
P500.00. This is a case of fraud against public
treasury.
Elements of frauds against public treasury under
paragraph 1 If there is a fixed outlay of P20,000.00 for the lighting
apparatus needed and the public officer connived with
1. Offender is a public officer; the seller so that although allocation was made a lesser
number was asked to be delivered, or of an inferior
2. He has taken advantage of his office, that is, he quality, or secondhand. In this case there is no fraud
intervened in the transaction in his official against the public treasury because there is a fixed
capacity; allocation. The fraud is in the implementation of
procurement. That would constitute the crime of “other
3. He entered into an agreement with any fraud” in Article 214, which is in the nature of swindling
interested party or speculator or made use of or estafa.
any other scheme with regard to furnishing
supplies, the making of contracts, or the Be sure to determine whether fraud is against public
adjustment or settlement of accounts relating to treasury or one under Article 214.
public property or funds;

4. He had intent to defraud the government. Elements of illegal exactions under paragraph 2

1. Offender is a public officer entrusted with the

The essence of this crime is making the government collection of taxes, licenses, fees and other
pay for something not received or making it pay more imposts;
than what is due. It is also committed by refunding
more than the amount which should properly be 2. He is guilty of any of the following acts or
refunded. This occurs usually in cases where a public omissions:
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

51
 a. Demanding, directly or indirectly, the demanded P500.00. By that demand alone,
payment of sums different from or the crime of illegal exaction is already
larger than those authorized by law; or committed even though the taxpayer does not
pay the P500.00.
b. Failing voluntarily to issue a receipt, as
provided by law, for any sum of money (2) Suppose the taxpayer came across with
collected by him officially; or P500.00. But the municipal treasurer, thinking
that he would abstract the P100.00, issued a
c. Collecting or receiving, directly or receipt for only P400.00. The taxpayer would
indirectly, by way of payment or naturally ask the municipal treasurer why the
otherwise, things or objects of a nature receipt was only for P400.00. The treasurer
different from that provided by law. answered that the P100.00 is supposed to be
for documentary stamps. The taxpayer left.

This can only be committed principally by a public He has a receipt for P400.00. The municipal
officer whose official duty is to collect taxes, license treasurer turned over to the government coffers
fees, import duties and other dues payable to the P400.00 because that is due the government
government. and pocketed the P100.00.

Not any public officer can commit this crime. The mere fact that there was a demand for an
Otherwise, it is estafa. Fixers cannot commit this crime amount different from what is due the
unless he conspires with the public officer authorized to government, the public officer already
make the collection. committed the crime of illegal exaction.

Also, public officers with such functions but are in the On the P100.00 which the public officer
service of the Bureau of Internal Revenue and the pocketed, will it be malversation or estafa?
Bureau of Customs are not to be prosecuted under the
Revised Penal Code but under the Revised In the example given, the public officer did not
Administrative Code. These officers are authorized to include in the official receipt the P100.00 and,
make impositions and to enter into compromises. therefore, it did not become part of the public
Because of this discretion, their demanding or funds. It remained to be private. It is the
collecting different from what is necessary is legal. taxpayer who has been defrauded of his
P100.00 because he can never claim a refund
This provision of the Revised Penal Code was provided from the government for excess payment since
before the Bureau of Internal Revenue and the Tariff the receipt issued to him was only P400.00
and Customs Code. Now, we have specific Code which is due the government. As far as the
which will apply to them. In the absence of any P100.00 is concerned, the crime committed is
provision applicable, the Revised Administrative Code estafa.
will apply.
(3) A taxpayer pays his taxes. What is due the
The essence of the crime is not misappropriation of any government is P400.00 and the public officer
of the amounts but the improper making of the issues a receipt for P500.00 upon payment of
collection which would prejudice the accounting of the taxpayer of said amount demanded by the
collected amounts by the government. public officer involved. But he altered the
duplicate to reflect only P400.00 and he
On the first form of illegal exaction extracted the difference of P100.00.

In this form, mere demand will consummate the crime, In this case, the entire P500.00 was covered by
even if the taxpayer shall refuse to come across with an official receipt. That act of covering the
the amount being demanded. That will not affect the whole amount received from the taxpayer in an
consummation of the crime. official receipt will have the characteristics of
becoming a part of the public funds. The
In the demand, it is not necessary that the amount crimes committed, therefore, are the following:
being demanded is bigger than what is payable to the
government. The amount being demanded maybe less (a) Illegal exaction – for collecting more
than the amount due the government. than he is authorized to collect. The
mere act of demanding is enough to
Note that this is often committed with malversation or constitute this crime.
estafa because when a public officer shall demand an
amount different from what the law provides, it can be (b) Falsification – because there was an
expected that such public officer will not turn over his alteration of official document which is
collection to the government. the duplicate of the official receipt to
show an amount less than the actual
Illustrations: amount collected.

(1) A taxpayer goes to the local municipal (c) Malversation – because of his act of
treasurer to pay real estate taxes on his land. misappropriating the P100.00 excess
Actually, what is due the government is which was covered by an official
P400.00 only but the municipal treasurer receipt already, even though not

52
 payable to the government. The entire (b) Estafa – for deceiving the taxpayer;
P500.00 was covered by the receipt, and
therefore, the whole amount became
public funds. So when he appropriated (c) Malversation – for getting the P100.00
the P100 for his own benefit, he was from the vault.
not extracting private funds anymore
but public funds. Although the excess P100.00 was not covered
by the Official Receipt, it was commingled with
Should the falsification be complexed with the the other public funds in the vault; hence, it
malversation? became part of public funds and subsequent
extraction thereof constitutes malversation.
As far as the crime of illegal exaction is
concerned, it will be the subject of separate
accusation because there, the mere demand Note that numbers 1 and 2 are complexed as illegal
regardless of whether the taxpayer will pay or exaction with estafa, while in number 3, malversation is
not, will already consummate the crime of a distinct offense.
illegal exaction. It is the breach of trust by a
public officer entrusted to make the collection The issuance of the Official Receipt is the operative
which is penalized under such article. The fact to convert the payment into public funds. The
falsification or alteration made on the duplicate payor may demand a refund by virtue of the Official
can not be said as a means to commit Receipt.
malversation. At most, the duplicate was
altered in order to conceal the malversation. In cases where the payor decides to let the official to
So it cannot be complexed with the “keep the change”, if the latter should pocket the
malversation. excess, he shall be liable for malversation. The official
has no right but the government, under the principle of
It cannot also be said that the falsification is a accretion, as the owner of the bigger amount becomes
necessary means to commit the malversation the owner of the whole.
because the public officer can misappropriate
the P100.00 without any falsification. All that On the second form of illegal exaction
he has to do is to get the excess of P100.00
and misappropriate it. So the falsification is a The act of receiving payment due the government
separate accusation. without issuing a receipt will give rise to illegal exaction
even though a provisional receipt has been issued.
However, illegal exaction may be complexed What the law requires is a receipt in the form
with malversation because illegal exaction is a prescribed by law, which means official receipt.
necessary means to be able to collect the
P100.00 excess which was malversed. Illustration:

In this crime, pay attention to whether the If a government cashier or officer to whom payment is
offender is the one charged with the collection made issued a receipt in his own private form, which he
of the tax, license or impost subject of the calls provisional, even though he has no intention of
misappropriation. If he is not the one misappropriating the amount received by him, the mere
authorized by disposition to do the collection, fact that he issued a receipt not in the form prescribed
the crime of illegal exaction is not committed. by law, the crime of illegal exaction is committed.
There must be voluntary failure to issue the Official
If it did not give rise to the crime of illegal Receipt.
exaction, the funds collected may not have
become part of the public funds. If it had not On the third form of illegal exaction
become part of the public funds, or had not
become impressed with being part of the public Under the rules and regulations of the government,
funds, it cannot be the subject of malversation. payment of checks not belonging to the taxpayer, but
It will give rise to estafa or theft as the case that of checks of other persons, should not be accepted
may be. to settle the obligation of that person.

(3) The Municipal Treasurer demanded P500.00 Illustration:

when only P400.00 was due. He issued the
receipt at P400.00 and explained to taxpayer A taxpayer pays his obligation with a check not his own
that the P100 was for documentary stamps. but pertaining to another. Because of that, the check
The Municipal Treasurer placed the entire bounced later on.
P500.00 in the vault of the office. When he
needed money, he took the P100.00 and spent The crime committed is illegal exaction because the
it. payment by check is not allowed if the check does not
pertain to the taxpayer himself, unless the check is a
The following crimes were committed: manager’s check or a certified check, amended already
as of 1990. (See the case of Roman Catholic.)
(a) Illegal exaction – for demanding a
different amount; Under Article 213, if any of these acts penalized as
illegal exaction is committed by those employed in the

53
Bureau of Customs or Bureau of Internal Revenue, the before any office of the government for his pecuniary
law that will apply to them will be the Revised benefit or where he may be called upon to act on
Administrative Code or the Tariff and Customs Code or account of his office.
National Revenue Code.

This crime does not require damage to the government. Section 13, Article VII of the Constitution

The President, Vice-President, the Members of

Article 214. Other Frauds the Cabinet and their deputies or assistant shall not,
unless otherwise provided in this Constitution, hold any
Elements other office or employment during their tenure. They
shall not, during said tenure, directly or indirectly,
1. Offender is a public officer; practice any other profession, participate in any
business, or be financially interested in any contract
2. He takes advantage of his official with, or in any franchise, or special privilege granted by
position; the Government or any subdivision, agency or
instrumentality thereof, including government-owned or
3. He commits any of the frauds or deceits controlled corporations or their subsidiaries. They shall
enumerated in Article 315 to 318. strictly avoid conflict of interest in the conduct of their
office.

Article 215. Prohibited Transactions

Section 2, Article IX-A of the Constitution
Elements
No member of a Constitutional Commission
1. Offender is an appointive public officer; shall, during his tenure, hold any office or employment.
Neither shall he engage in the practice of any
2. He becomes interested, directly or indirectly, in profession or in the active management or control of
any transaction of exchange or speculation; any business which in any way may be affected by the
functions of his office, nor shall he be financially
3. The transaction takes place within the territory interested, directly or indirectly, in any contract with, or
subject to his jurisdiction; in any franchise or privilege granted by the government,
or any of its subdivisions, agencies, or instrumentalities,
4. He becomes interested in the transaction including government-owned or controlled corporations
during his incumbency. or their subsidiaries.

Article 216. Possession of Prohibited Interest By A Article 217. Malversation of Public Funds or
Public Officer Property – Presumption of Malversation

Persons liable Acts punished

1. Public officer who, directly or indirectly, became 1. Appropriating public funds or property;
interested in any contracts or business in which
it was his official duty to intervene; 2. Taking or misappropriating the same;

2. Experts, arbitrators, and private accountants 3. Consenting, or through abandonment or

who, in like manner, took part in any contract or negligence, permitting any other person to take
transaction connected with the estate or such public funds or property; and
property in the appraisal, distribution or
adjudication of which they had acted; 4. Being otherwise guilty of the misappropriation
or malversation of such funds or property.
3. Guardians and executors with respect to the
property belonging to their wards or the estate.
Elements common to all acts of malversation under
Article 217
Section 14, Article VI of the Constitution
1. Offender is a public officer;
No Senator or Member of the House of
Representatives may personally appear as counsel 2. He had the custody or control of funds or
before any court of justice or before the Electoral property by reason of the duties of his office;
Tribunals, or quasi-judicial and other administrative
bodies. Neither shall he, directly or indirectly, be 3. Those funds or property were public funds or
interested financially in any contract with, or in any property for which he was accountable;
franchise or special privilege granted by the
Government or any subdivision, agency or 4. He appropriated, took, misappropriated or
instrumentality thereof, including any government- consented or, through abandonment or
owned or controlled corporation or its subsidiary, during negligence, permitted another person to take
his term of office. He shall not intervene in any matter them.

54
 offender, the policeman sold the firearm. What crime
was committed?
This crime is predicated on the relationship of the
offender to the property or funds involved. The The crime committed is malversation because
offender must be accountable for the property that firearm is subject to his accountability. Having
misappropriated. If the fund or property, though public taken custody of the firearm, he is supposed to account
in character is the responsibility of another officer, for it as evidence for the prosecution of the offender.
malversation is not committed unless there is
conspiracy. 2. Can the buyer be liable under the Anti-
fencing law?
It is not necessary that the offender profited because
somebody else may have misappropriated the funds in No. The crime is neither theft nor robbery, but
question for as long as the accountable officer was malversation.
remiss in his duty of safekeeping public funds or
property. He is liable for malversation if such funds 3. A member of the Philippine National
were lost or otherwise misappropriated by another. Police went on absence without leave. He was charged
with malversation of the firearm issued to him. After
There is no malversation through simple negligence or two years, he came out of hiding and surrendered the
reckless imprudence, whether deliberately or firearm. What crime was committed?
negligently. This is one crime in the Revised Penal
Code where the penalty is the same whether The crime committed was malversation.
committed with dolo or culpa. Payment of the amount misappropriated or restitution
of property misappropriated does not erase criminal
liability but only civil liability.

Question & Answer

When private property is attached or seized by public
authority and the public officer accountable therefor
What crime under the Revised Penal Code misappropriates the same, malversation is committed
carries the same penalty whether committed also.
intentionally or through negligence?
Illustration:
Malversation under Article 217. There is no
crime of malversation through negligence. The crime is If a sheriff levied the property of the defendants and
malversation, plain and simple, whether committed absconded with it, he is not liable of qualified theft but
through dolo or culpa. There is no crime of of malversation even though the property belonged to a
malversation under Article 365 – on criminal negligence private person. The seizure of the property or fund
– because in malversation under Article 217, the same impressed it with the character of being part of the
penalty is imposed whether the malversation results public funds it being in custodia legis. For as long as
from negligence or was the product of deliberate act. 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
The crime of malversation can be committed only by an crime could be theft, simple or qualified.
officer accountable for the funds or property which is
appropriated. This crime, therefore, bears a relation
between the offender and the funds or property
Question & Answer
involved.

The offender, to commit malversation, must be There was a long line of payors on the last day
accountable for the funds or property misappropriated of payment for residence certificates. Employee A of
by him. If he is not the one accountable but somebody the municipality placed all his collections inside his
else, the crime committed is theft. It will be qualified table and requested his employee B to watch over his
theft if there is abuse of confidence. table while he goes to the restroom. B took advantage
of A’s absence and took P50.00 out of the collections.
Accountable officer does not refer only to cashier, A returned and found his money short. What crimes
disbursing officers or property custodian. Any public have been committed?
officer having custody of public funds or property for
which he is accountable can commit the crime of A is guilty of malversation through negligence
malversation if he would misappropriate such fund or because he did not exercise due diligence in the
property or allow others to do so. safekeeping of the funds when he did not lock the
drawer of his table. Insofar as B is concerned, the
crime is qualified theft.
Questions & Answers
Under jurisprudence, when the public officer leaves his
1. An unlicensed firearm was confiscated post without locking his drawer, there is negligence.
by a policeman. Instead of turning over the firearm to Thus, he is liable for the loss.
the property custodian for the prosecution of the
Illustration:

55
 (2) An accountable public officer, out of laziness,
A government cashier did not bother to put the public declares that the payment was made to him
fund in the public safe/vault but just left it in the drawer after he had cleaned his table and locked his
of his table which has no lock. The next morning when safe for the collection of the day. A taxpayer
he came back, the money was already gone. He was came and he insisted that he pay the amount
held liable for malversation through negligence so that he will not return the next day. So he
because in effect, he has abandoned the fund or accepted the payment but is too lazy to open
property without any safety. the combination of the public safe. He just
pocketed the money. When he came home,
A private person may also commit malversation under the money was still in his pocket. The next
the following situations: day, when he went back to the office, he
changed clothes and he claims that he forgot to
(1) Conspiracy with a public officer in committing put the money in the new funds that he would
malversation; collect the next day. Government auditors
came and subjected him to inspection. He
(2) When he has become an accomplice or was found short of that amount. He claimed
accessory to a public officer who commits that it is in his house -- with that alone, he was
malversation; charged with malversation and was convicted.

(3) When the private person is made the custodian Any overage or excess in the collection of an
in whatever capacity of public funds or accountable public officer should not be extracted by
property, whether belonging to national or local him once it is commingled with the public funds.
government, and he misappropriates the same;
Illustration:
(4) When he is constituted as the depositary or
administrator of funds or property seized or When taxpayers pay their accountabilities to the
attached by public authority even though said government by way of taxes or licenses like registration
funds or property belong to a private individual. of motor vehicles, the taxpayer does not bother to
collect loose change. So the government cashier
Illustration: accumulates the loose change until this amounts to a
sizable sum. In order to avoid malversation, the
Municipal treasurer connives with outsiders to make it cashier did not separate what is due the government
appear that the office of the treasurer was robbed. He which was left to her by way of loose change. Instead,
worked overtime and the co-conspirators barged in, he gets all of these and keeps it in the public vault/safe.
hog-tied the treasurer and made it appear that there After the payment of the taxes and licenses is through,
was a robbery. Crime committed is malversation he gets all the official receipts and takes the sum total
because the municipal treasurer was an accountable of the payment. He then opens the public vault and
officer. counts the cash. Whatever will be the excess or the
overage, he gets. In this case, malversation is
Note that damage on the part of the government is not committed.
considered an essential element. It is enough that the
proprietary rights of the government over the funds Note that the moment any money is commingled with
have been disturbed through breach of trust. the public fund even if not due the government, it
becomes impressed with the characteristic of being
It is not necessary that the accountable public officer part of public funds. Once they are commingled, you
should actually misappropriate the fund or property do not know anymore which belong to the government
involved. It is enough that he has violated the trust and which belong to the private persons. So that a
reposed on him in connection with the property. public vault or safe should not be used to hold any fund
other that what is due to the government.
Illustration:
When does presumption of misappropriation arise?
(1) It is a common practice of government cashiers
to change the checks of their friends with cash When a demand is made upon an accountable officer
in their custody, sometimes at a discount. The and he cannot produce the fund or property involved,
public officer knows that the check is good there is a prima facie presumption that he had
because the issuer thereof is a man of name. converted the same to his own use. There must be
So he changed the same with cash. The check indubitable proof that thing unaccounted for exists.
turned out to be good. Audit should be made to determine if there was
shortage. Audit must be complete and trustworthy. If
With that act of changing the cash of the there is doubt, presumption does not arise.
government with the check of a private person,
even though the check is good, malversation is Presumption arises only if at the time the demand to
committed. The reason is that a check is produce the public funds was made, the accountability
cleared only after three days. During that of the accused is already determined and liquidated. A
period of three days, the government is being demand upon the accused to produce the funds in his
denied the use of the public fund. With more possession and a failure on his part to produce the
reason if that check bounce because the same will not bring about this presumption unless and
government suffers. until the amount of his accountability is already known.

56
In Dumagat v. Sandiganbayan, 160 SCRA 483, it was Technical malversation is not included in the crime of
held that the prima facie presumption under the malversation. In malversation, the offender
Revised Penal Code arises only if there is no misappropriates public funds or property for his own
issue as to the accuracy, correctness and personal use, or allows any other person to take such
regularity of the audit findings and if the fact funds or property for the latter’s own personal use. In
that public funds are missing is indubitably technical malversation, the public officer applies the
established. The audit must be thorough and public funds or property under his administration to
complete down to the last detail, establishing another public use different from that for which the
with absolute certainty the fact that the funds public fund was appropriated by law or ordinance.
are indeed missing. Recourse: File the proper information.

In De Guzman v. People, 119 SCRA 337, it was held

that in malversation, all that is necessary to Article 218. Failure of Accountable Officer to
prove is that the defendant received in his Render Accounts
possession the public funds and that he could
not account for them and that he could not give Elements
a reasonable excuse for their disappearance.
An accountable public officer may be convicted 1. Offender is public officer, whether in the service
of malversation even if there is no direct or separated therefrom by resignation or any
evidence of misappropriation and the only other cause;
evidence is the shortage in the accounts which
he has not been able to explain satisfactorily. 2. He is an accountable officer for public funds or
property;
In Cabello v. Sandiganbaya, 197 SCRA 94, it was
held it was held that malversation may be
committed intentionally or by negligence. The
dolo or culpa bringing about the offences is 3. He is required by law or regulation to render
only a modality in the perpetration of the account to the Commission on Audit, or to a
offense. The same offense of malversation is provincial auditor;
involved, whether the mode charged differs
from the mode established in the commission 4. He fails to do so for a period of two months
of the crime. An accused charged with willful after such accounts should be rendered.
malversation may be convicted of Malversation
through her negligee.
Article 219. Failure of A Responsible Public Officer
In Quizo v. Sandiganbayan, the accused incurred to Render Accounts before Leaving the Country
shortage (P1.74) mainly because the auditor
disallowed certain cash advances the accused Elements
granted to employees. But on the same date
that the audit was made, he partly reimbursed 1. Offender is a public officer;
the amount and paid it in full three days later.
The Supreme Court considered the 2. He is an accountable officer for public funds or
circumstances as negative of criminal intent. property;
The cash advances were made in good faith
and out of good will to co-employees which 3. He unlawfully leaves or attempts to leave the
was a practice tolerated in the office. The Philippine Islands without securing a certificate
actual cash shortage was only P1.74 and from the Commission on Audit showing that his
together with the disallowed advances were accounts have been finally settled.
fully reimbursed within a reasonable time.
There was no negligence, malice, nor intent to
defraud. When an accountable officer leaves the country without
first settling his accountability or otherwise securing a
In Ciamfranca Jr. v. Sandiganbayan, where the clearance from the Commission on Audit regarding
accused in malversation could not give such accountability, the implication is that he left the
reasonable and satisfactory explanation or country because he has misappropriated the funds
excuse for the missing funds or property under his accountability.
accountable by him, it was held that the return
of the funds or property is not a defense and Who can commit this crime? A responsible public
does not extinguish criminal liability. officer, not necessarily an accountable one, who leaves
the country without first securing clearance from the
In Parungao v. Sandiganbayan, 197 SCRA 173, it Commission on Audit.
was held that a public officer charged with
malversation cannot be convicted of technical The purpose of the law is to discourage responsible or
malversation (illegal use of public funds under accountable officers from leaving without first
Article 220). To do so would violate accused’s liquidating their accountability.
right to be informed of nature of accusation
against him. Mere leaving without securing clearance constitutes
violation of the Revised Penal Code. It is not

57
necessary that they really misappropriated public house, Olive, agreed. So the bags of cement were
funds. 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
Article 220. Illegal use of public funds or property owner of the garage started using some of the cement
in paving his own garage. The crime of technical
Elements malversation is also committed.

1. Offender is a public officer;

Note that when a private person is constituted as the
2. There are public funds or property under his custodian in whatever capacity, of public funds or
administration; property, and he misappropriates the same, the crime
of malversation is also committed. See Article 222.
3. Such fund or property were appropriated by law Illustration:
or ordinance;
The payroll money for a government infrastructure
4. He applies such public fund or property to any project on the way to the site of the project, the officers
public use other than for which it was bringing the money were ambushed. They were all
appropriated for. wounded. One of them, however, 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
Illegal use of public funds or property is also known as safeguard the amount because it is the payroll money
technical malversation. The term technical of the government laborers of a particular project. The
malversation is used because in this crime, the fund or occupant of the house accepted the money for his own
property involved is already appropriated or earmarked use. The crime is not theft but malversation as long as
for a certain public purpose. he knew that what was entrusted in his custody is
public fund or property.
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 Question & Answer
by law, the public officer applied it to another purpose.
The sheriff, after having levied on the property
Since damage is not an element of malversation, even subject of a judgment, conducted a public auction sale.
though the application made proved to be more He received the proceeds of the public auction.
beneficial to public interest than the original purpose for Actually, the proceeds are to be delivered to the
which the amount or property was appropriated by law, plaintiff. The sheriff, after deducting the sheriff’s fees
the public officer involved is still liable for technical due to the office, spent part of that amount. He gave
malversation. the balance to the plaintiff and executed a promissory
note to pay the plaintiff the amount spent by him. Is
If public funds were not yet appropriated by law or there a crime committed?
ordinance, and this was applied to a public purpose by
the custodian thereof, the crime is plain and simple The Supreme Court ruled that the sheriff
malversation, not technical malversation. If the funds committed the crime of malversation because the
had been appropriated for a particular public purpose, proceeds of the auction sale was turned over to the
but the same was applied to private purpose, the crime plaintiff, such proceeds is impressed with the
committed is simple malversation only. characteristic of being part of public funds. The sheriff
is accountable therefore because he is not supposed to
Illustration: use any part of such proceeds.

The office lacked bond papers. What the government

cashier did was to send the janitor, get some money Article 221. Failure to Make Delivery of Public
from his collection, told the janitor to buy bond paper so Funds of Property
that the office will have something to use. The amount
involved maybe immaterial but the cashier commits Acts punished
malversation pure and simple.
1. Failing to make payment by a public officer who
This crime can also be committed by a private person. is under obligation to make such payment from
government funds in his possession;
Illustration:
2. Refusing to make delivery by a public officer
A certain road is to be cemented. Bags of cement were who has been ordered by competent authority
already being unloaded at the side. But then, rain to deliver any property in his custody or under
began to fall so the supervisor of the road building went his administration.
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 Elements of failure to make payment

58
 convict or a detention prisoner, is not the custodian, the
1. Public officer has government funds in his crime is delivering prisoners from jail under Article156.
possession;
The crime of infidelity in the custody of prisoners can
2. He is under obligation to make payment from be committed only by the custodian of a prisoner.
such funds;
If the jail guard who allowed the prisoner to escape is
3. He fails to make the payment maliciously. 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.
Article 223. Conniving with or Consenting to
Evasion Note that you do not apply here the principle of
conspiracy that the act of one is the act of all. The
1. Offender is a public officer; party who is not the custodian who conspired with the
custodian in allowing the prisoner to escape does not
2. He had in his custody or charge a prisoner, commit infidelity in the custody of the prisoner. He
either detention prisoner or prisoner by final commits the crime of delivering prisoners from jail.
judgment;

3. Such prisoner escaped from his custody;

Question & Answer
4. He was in connivance with the prisoner in the
latter’s escape. 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
Classes of prisoners involved prisoner to escape. What crime had been committed?

1. If the fugitive has been sentenced by final It is not infidelity in the custody of prisoners
judgment to any penalty; because as far as the private person is concerned, this
crime is delivering prisoners from jail. The infidelity is
2. If the fugitive is held only as detention prisoner only committed by the custodian.
for any crime or violation of law or municipal
ordinance. This crime can be committed also by a private person if
the custody of the prisoner has been confided to a
private person.
Article 224. Evasion through Negligence
Illustration:
Elements
A policeman escorted a prisoner to court. After the
1. Offender is a public officer; court hearing, this policeman was shot at with a view to
liberate the prisoner from his custody. The policeman
2. He is charged with the conveyance or custody fought the attacker but he was fatally wounded. When
of a prisoner or prisoner by final judgment; he could no longer control the prisoner, he went to a
nearby house, talked to the head of the family of that
3. Such prisoner escapes through negligence. 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.
Article 225. Escape of Prisoner under the Custody Thereafter, the head of the family of that private house
of a Person not a Public Officer asked the prisoner if he could afford to give something
so that he would allow him to go. The prisoner said,
Elements “Yes, if you would allow me to leave, you can come
with me and I will give the money to you.” This private
1. Offender is a private person; persons went with the prisoner and when the money
was given, he allowed him to go. What crime/s had
2. The conveyance or custody of a prisoner or been committed?
person under arrest is confided to him;
Under Article 225, the crime can be committed by a
3. The prisoner or person under arrest escapes; private person to whom the custody of a prisoner has
been confided.
4. Offender consents to the escape, or that the
escape takes place through his negligence. 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
The crime is infidelity in the custody of prisoners if the confided to him, Bribery is also committed. So the
offender involved is the custodian of the prisoner. crime committed by him is infidelity in the custody of
prisoners and bribery.
If the offender who aided or consented to the prisoner’s
escaping from confinement, whether the prisoner is a If the crime is delivering prisoners from jail, bribery is
just a means, under Article 156, that would call for the

59
imposition of a heavier penalty, but not a separate and currency note is considered to be within the term
charge of bribery under Article 156. paper although it is not a document.

But under Article 225 in infidelity, what is basically With respect to official documents, infidelity is
punished is the breach of trust because the offender is committed by destroying the document, or removing
the custodian. For that, the crime is infidelity. If he the document or concealing the document.
violates the trust because of some consideration,
bribery is also committed. Damage to public interest is necessary. However,
material damage is not necessary.
A higher degree of vigilance is required. Failure to do
so will render the custodian liable. The prevailing ruling Illustration:
is against laxity in the handling of prisoners.
If any citizen goes to a public office, desiring to go over
Illustration: public records and the custodian of the records had
concealed the same so that this citizen is required to go
A prison guard accompanied the prisoner in the toilet. back for the record to be taken out, the crime of
While answering the call of nature, police officer waiting infidelity is already committed by the custodian who
there, until the prisoner escaped. Police officer was removed the records and kept it in a place where it is
accused of infidelity. not supposed to be kept. Here, it is again the breach of
public trust which is punished.
There is no criminal liability because it does not
constitute negligence. Negligence contemplated here Although there is no material damage caused, mere
refers to deliberate abandonment of duty. delay in rendering public service is considered damage.

Note, however, that according to a recent Supreme Removal of public records by the custodian does not
Court ruling, failure to accompany lady prisoner in the require that the record be brought out of the premises
comfort room is a case of negligence and therefore the where it is kept. It is enough that the record be
custodian is liable for infidelity in the custody of removed from the place where it should be and
prisoner. transferred to another place where it is not supposed to
be kept. If damage is caused to the public service, the
Prison guard should not go to any other place not public officer is criminally liable for infidelity in the
officially called for. This is a case of infidelity in the custody of official documents.
custody of prisoner through negligence under Article
224. Distinction between infidelity in the custody of public
document, estafa and malicious mischief

Article 226. Removal, Concealment, or Destruction • In infidelity in the custody of public document,
of Documents the offender is the custodian of the official
document removed or concealed.
Elements
• In estafa, the offender is not the custodian of
1. Offender is a public officer; the document removed or concealed.

2. He abstracts, destroys or conceals a document • In malicious mischief, the offender purposely

or papers; destroyed and damaged the
property/document.
3. Said document or papers should have been
entrusted to such public officer by reason of his Where in case for bribery or corruption, the monetary
office; considerations was marked as exhibits, such
considerations acquires the nature of a document such
4. Damage, whether serious or not, to a third that if the same would be spent by the custodian the
party or to the public interest has been caused. crime is not malversation but Infidelity in the custody of
public records, because the money adduced as exhibits
Crimes falling under the section on infidelity in the partake the nature of a document and not as money.
custody of public documents can only be committed by Although such monetary consideration acquires the
the public officer who is made the custodian of the nature of a document, the best evidence rule does not
document in his official capacity. If the officer was apply here. Example, photocopies may be presented
placed in possession of the document but it is not his in evidence.
duty to be the custodian thereof, this crime is not
committed.
Article 227. Officer Breaking Seal
Illustration:
Elements
A letter is entrusted to a postmaster for transmission of
a registered letter to another. The postmaster opened 1. Offender is a public officer;
the letter and finding the money, extracted the same.
The crime committed is infidelity in the custody of the 2. He is charged with the custody of papers or
public document because under Article 226, the law property;
refers also to papers entrusted to public officer involved

60
3. These papers or property are sealed by proper
authority; Article 229. Revelation of Secrets by An Officer

4. He breaks the seal or permits them to be Acts punished

broken.
1. Revealing any secrets known to the offending
public officer by reason of his official capacity;
If the official document is sealed or otherwise placed in
an official envelope, the element of damage is not Elements
required. The mere breaking of the seal or the mere
opening of the document would already bring about 1. Offender is a public officer;
infidelity even though no damage has been suffered by
anyone or by the public at large. The offender does not 2. He knows of a secret by reason of his
have to misappropriate the same. Just trying to official capacity;
discover or look what is inside is infidelity already.
3. He reveals such secret without
The act is punished because if a document is entrusted authority or justifiable reasons;
to the custody of a public officer in a sealed or closed
envelope, such public officer is supposed not to know 4. Damage, great or small, is caused to
what is inside the same. If he would break the seal or the public interest.
open the closed envelop, indications would be that he
tried to find out the contents of the document. For that 2. Delivering wrongfully papers or copies of
act, he violates the confidence or trust reposed on him. papers of which he may have charge and which
should not be published.
A crime is already committed regardless of whether the
contents of the document are secret or private. It is Elements
enough that it is entrusted to him in a sealed form or in
a closed envelope and he broke the seal or opened the 1. Offender is a public officer;
envelop. Public trust is already violated if he managed
to look into the contents of the document. 2. He has charge of papers;

Distinction between infidelity and theft 3. Those papers should not be published;

• There is infidelity if the offender opened the 4. He delivers those papers or copies
letter but did not take the same. thereof to a third person;

• There is theft if there is intent to gain when the 5. The delivery is wrongful;
offender took the money.
6. Damage is caused to public interest.
Note that he document must be complete in legal
sense. If the writings are mere form, there is no crime.
Article 230. Public Officer Revealing Secrets of
Illustration: Private individual

As regard the payroll, which has not been signed by the Elements
Mayor, no infidelity is committed because the document
is not yet a payroll in the legal sense since the 1. Offender is a public officer;
document has not been signed yet.
2. He knows of the secrets of a private individual
In "breaking of seal", the word "breaking" should not be by reason of his office;
given a literal meaning. Even if actually, the seal was
not broken, because the custodian managed to open 3. He reveals such secrets without authority or
the parcel without breaking the seal. justifiable reason.

Article 228. Opening of Closed Documents Article 231. Open Disobedience

Elements Elements

1. Offender is a public officer; 1. Officer is a judicial or executive officer;

2. Any closed papers, documents, or object are 2. There is a judgment, decision or order of a
entrusted to his custody; superior authority;

3. He opens or permits to be opened said closed 3. Such judgment, decision or order was made
papers, documents or objects; within the scope of the jurisdiction of the
superior authority and issued with all the legal
4. He does not have proper authority. formalities;

61
4. He, without any legal justification, openly when demanded by competent public authority, as long
refuses to execute the said judgment, decision as the assistance requested from them is within their
or order, which he is duty bound to obey. duty to render and that assistance is needed for public
service, the public officers who are refusing deliberately
may be charged with refusal of assistance.
Article 232. Disobedience to Order of Superior
Officer When Said Order Was Suspended by Note that the request must come from one public officer
Inferior Officer to another.

Elements Illustration:

1. Offender is a public officer; A fireman was asked by a private person for services
but was refused by the former for lack of
2. An order is issued by his superior for execution; “consideration”.

3. He has for any reason suspended the It was held that the crime is not refusal of assistance
execution of such order; because the request did not come from a public
authority. But if the fireman was ordered by the
4. His superior disapproves the suspension of the authority to put out the fire and he refused, the crime is
execution of the order; refusal of assistance.

5. Offender disobeys his superior despite the If he receives consideration therefore, bribery is
disapproval of the suspension. committed. But mere demand will fall under the
prohibition under the provision of Republic Act No.
3019 (Anti-Graft and Corrupt Practices Act).
Article 233. Refusal of Assistance

1. Offender is a public officer; Article 234. Refusal to Discharge Elective Office

2. A competent authority demands from the Elements

offender that he lend his cooperation towards
the administration of justice or other public 1. Offender is elected by popular election to a
service; public office;

3. Offender fails to do so maliciously. 2. He refuses to be sworn in or to discharge the

duties of said office;

Any public officer who, upon being requested to render 3. There is no legal motive for such refusal to be
public assistance within his official duty to render and sworn in or to discharge the duties of said
he refuses to render the same when it is necessary in office.
the administration of justice or for public service, may
be prosecuted for refusal of assistance.
Article 235. Maltreatment of Prisoners
This is a crime, which a policeman may commit when,
being subpoenaed to appear in court in connection with Elements
a crime investigated by him but because of some
arrangement with the offenders, the policeman does 1. Offender is a public officer or employee;
not appear in court anymore to testify against the
offenders. He tried to assail the subpoena so that 2. He has under his charge a prisoner or
ultimately the case would be dismissed. It was already detention prisoner;
held that the policeman could be prosecuted under this
crime of refusal of assistance and not that of dereliction 3. He maltreats such prisoner in either of the
of duty. following manners:

Illustration: a. By overdoing himself in the correction

or handling of a prisoner or detention
A government physician, who had been subpoenaed to prisoner under his charge either –
appear in court to testify in connection with physical
injury cases or cases involving human lives, does not (1) By the imposition of
want to appear in court to testify. He may be charged punishment not authorized by
for refusal of assistance. As long as they have been the regulations; or
properly notified by subpoena and they disobeyed the
subpoena, they can be charged always if it can be (2) By inflicting such punishments
shown that they are deliberately refusing to appear in (those authorized) in a cruel
court. and humiliating manner; or

It is not always a case or in connection with the b. By maltreating such prisoners to extort
appearance in court that this crime may be committed. a confession or to obtain some
Any refusal by the public officer to render assistance information from the prisoner.

62
 After having been booked, the prisoner was made to
show any sign on his arm, hand or his neck; “Do not
This is committed only by such public officer charged follow my footsteps, I am a thief.” That is maltreatment
with direct custody of the prisoner. Not all public officer of prisoner if the offended party had already been
can commit this offense. booked and incarcerated no matter how short, as a
prisoner.
If the public officer is not the custodian of the prisoner,
and he manhandles the latter, the crime is physical Before this point in time, when he is not yet a prisoner,
injuries. the act of hanging a sign on his neck will only amount
to slander because the idea is to cast dishonor. Any
The maltreatment does not really require physical injury inflicted upon him will only give rise to the crime
injuries. Any kind of punishment not authorized or of physical injuries.
though authorized if executed in excess of the
prescribed degree.
Article 236. Anticipation of Duties of A Public
Illustration: Office

Make him drink dirty water, sit on ice, eat on a can, Elements
make him strip, hang a sign on his neck saying
“snatcher”. 1. Offender is entitled to hold a public office or
employment, either by election or appointment;
But if as a result of the maltreatment, physical injuries
were caused to the prisoner, a separate crime for the 2. The law requires that he should first be sworn
physical injuries shall be filed. You do not complex the in and/or should first give a bond;
crime of physical injuries with the maltreatment
because the way Article 235 is worded, it prohibits the 3. He assumes the performance of the duties and
complexing of the crime. powers of such office;

If the maltreatment was done in order to extort 4. He has not taken his oath of office and/or given
confession, therefore, the constitutional right of the the bond required by law.
prisoner is further violated. The penalty is qualified to
the next higher degree.
Article 237. Prolonging Performance of Duties and
The offended party here must be a prisoner in the legal Powers
sense. The mere fact that a private citizen had been
apprehended or arrested by a law enforcer does not Elements
constitute him a prisoner. To be a prisoner, he must
have been booked and incarcerated no matter how 1. Offender is holding a public office;
short it is.
2. The period provided by law, regulations or
Illustration: special provision for holding such office, has
already expired;
A certain snatcher was arrested by a law enforcer,
brought to the police precinct, turned over to the 3. He continues to exercise the duties and powers
custodian of that police precinct. Every time a of such office.
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, Article 238. Abandonment of Office or Position
“This fellow is a snatcher.” So every time a policeman
would come in, he would inflict injury to him. This is not Elements
maltreatment of prisoner because the offender is not
the custodian. The crime is only physical injuries. 1. Offender is a public officer;

But if the custodian is present there and he allowed it, 2. He formally resigns from his position;
then he will be liable also for the physical injuries
inflicted, but not for maltreatment because it was not 3. His resignation has not yet been accepted;
the custodian who inflicted the injury.
4. He abandons his office to the detriment of the
But if it is the custodian who effected the maltreatment, public service.
the crime will be maltreatment of prisoners plus a
separate charge for physical injuries.
Article 239. Usurpation of Legislative Powers
If a prisoner who had already been booked was make
to strip his clothes before he was put in the detention Elements
cell so that when he was placed inside the detention
cell, he was already naked and he used both of his 1. Offender is an executive or judicial officer;
hands to cover his private part, the crime of
maltreatment of prisoner had already been committed. 2. He (a) makes general rules or regulations
beyond the scope of his authority or (b)

63
 attempts to repeal a law or (c) suspends the 2. He nominates or appoints a person to a public
execution thereof. office;

3. Such person lacks the legal qualifications

Article 240. Usurpation of Executive Functions therefore;

Elements 4. Offender knows that his nominee or appointee

lacks the qualification at the time he made the
1. Offender is a judge; nomination or appointment.

2. He (a) assumes a power pertaining to the

executive authorities, or (b) obstructs the Article 245. Abuses against Chastity
executive authorities in the lawful exercise of
their powers. Acts punished

1. Soliciting or making immoral or indecent

Article 241. Usurpation of Judicial Functions advances to a woman interested in matters
pending before the offending officer for
Elements decision, or with respect to which he is required
to submit a report to or consult with a superior
1. Offender is an officer of the executive branch of officer;
the government;
2. Soliciting or making immoral or indecent
2. He (a) assumes judicial powers, or (b) advances to a woman under the offender’s
obstructs the execution of any order or decision custody;
rendered by any judge within his jurisdiction.
3. Soliciting or making immoral or indecent
advances to the wife, daughter, sister or
Article 242. Disobeying Request for relative within the same degree by affinity of
Disqualification any person in the custody of the offending
warden or officer.
Elements

1. Offender is a public officer; Elements:

2. A proceeding is pending before such public 1. Offender is a public officer;

officer;
2. He solicits or makes immoral or indecent
3. There is a question brought before the proper advances to a woman;
authority regarding his jurisdiction, which is not
yet decided; 3. Such woman is –

4. He has been lawfully required to refrain form a. interested in matters pending before
continuing the proceeding; the offender for decision, or with
respect to which he is required to
5. He continues the proceeding. submit a report to or consult with a
superior officer; or

Article 243. Orders or Request by Executive b. under the custody of the offender who
Officers to Any Judicial Authority is a warden or other public officer
directly charged with the care and
Elements custody of prisoners or persons under
arrest; or
1. Offender is an executive officer;
c. the wife, daughter, sister or relative
2. He addresses any order or suggestion to any within the same degree by affinity of
judicial authority; the person in the custody of the
offender.
3. The order or suggestion relates to any case or
business coming within the exclusive
jurisdiction of the courts of justice. The name of the crime is misleading. It implies that the
chastity of the offended party is abused but this is not
really the essence of the crime because the essence of
Article 244. Unlawful Appointments the crime is mere making of immoral or indecent
solicitation or advances.
Elements
Illustration:
1. Offender is a public officer;

64
Mere indecent solicitation or advances of a woman Immoral or indecent advances contemplated
over whom the public officer exercises a certain here must be persistent. It must be
influence because the woman is involved in a case determined. A mere joke would not suffice.
where the offender is to make a report of result with
superiors or otherwise a case which the offender was Illustrations:
investigating.
(1) An investigating prosecutor where the
This crime is also committed if the woman is a prisoner woman is charged with estafa as the
and the offender is her jail warden or custodian, or respondent, made a remark to the
even if the prisoner may be a man if the jail warden woman, thus: “You know, the way of
would make the immoral solicitations upon the wife, deciding this case depends on me. I
sister, daughter, or relative by affinity within the same can just say this is civil in character. I
degree of the prisoner involved. want to see a movie tonight and I want
a companion.” Such a remark, which
Three instances when this crime may arise: is not discerned if not persistent will not
give rise to this crime. However, if the
(1) The woman, who is the offended party, is the prosecutor kept on calling the woman
party in interest in a case where the offended is and inviting her, that makes the act
the investigator or he is required to render a determined and the crime is
report or he is required to consult with a committed.
superior officer.
(2) A jailer was prosecuted for abuse
against chastity. The jailer said, “It was
This does not include any casual or incidental mutual on their part. I did not really
interest. This refers to interest in the subject of force my way upon the woman. The
the case under investigation. woman fell in love with me, I fell in love
with the woman.” The woman became
If the public officer charged with the pregnant. The woman admitted that
investigation or with the rendering of the report she was not forced. Just the same, the
or with the giving of advice by way of jailer was convicted of abuse against
consultation with a superior, made some chastity.
immoral or indecent solicitation upon such
woman, he is taking advantage of his position Legally, a prisoner is an accountability of the
over the case. For that immoral or indecent government. So the custodian is not supposed
solicitation, a crime is already committed even to interfere. Even if the prisoner may like it, he
if the woman did not accede to the solicitation. is not supposed to do that. Otherwise, abuse
against chastity is committed.
Even if the woman may have lied with the Being responsible for the pregnancy is itself
hearing officer or to the public officer and taking advantage the prisoner.
acceded to him, that does not change the crime
because the crime seeks to penalize the taking If he forced himself against the will of the
advantage of official duties. woman, another crime is committed, that is,
rape aside from abuse against chastity.
It is immaterial whether the woman did not
agree or agreed to the solicitation. If the You cannot consider the abuse against chastity
woman did not agree and the public officer as absorbed in the rape because the basis of
involved pushed through with the advances, penalizing the acts is different from each other.
attempted rape may have been committed.
(3) The crime is committed upon a female relative
(2) The woman who is the offended party in the of a prisoner under the custody of the offender,
crime is a prisoner under the custody of a where the woman is the daughter, sister or
warden or the jailer who is the offender. relative by affinity in the same line as of the
prisoner under the custody of the offender who
If the warden or jailer of the woman should made the indecent or immoral solicitation.
make immoral or indecent advances to such
prisoner, this crime is committed. The mother is not included so that any immoral
or indecent solicitation upon the mother of the
This crime cannot be committed if the warden prisoner does not give rise to this crime, but the
is a woman and the prisoner is a man. Men offender may be prosecuted under the Section
have no chastity. 28 of Republic Act No. 3019 (Anti-graft and
Corrupt Practices Act).
If the warden is also a woman but is a lesbian,
it is submitted that this crime could be Why is the mother left out? Because it is the
committed, as the law does not require that the mother who easily succumbs to protect her
custodian be a man but requires that the child.
offended be a woman.
If the offender were not the custodian, then
crime would fall under Republic Act No. 3019
(The Anti-Graft and Corrupt Practices Act).

65
Republic Act No. 7877 (Anti-Sexual Harassment 17. Administering injurious substances or
Act) beverages (Art. 264);

Committed by any person having authority, influence or 18. Less serious physical injuries (Art. 265);
moral ascendancy over another in a work, training or
education environment when he or she demands, 19. Slight physical injuries and maltreatment (Art.
requests, or otherwise requires any sexual favor from 266); and
the other regardless of whether the demand, request or
requirement for submission is accepted by the object of 20. Rape (Art. 266-A).
the said act (for a passing grade, or granting of
scholarship or honors, or payment of a stipend,
allowances, benefits, considerations; favorable The essence of crime here involves the taking of
compensation terms, conditions, promotions or when human life, destruction of the fetus or inflicting injuries.
the refusal to do so results in a detrimental
consequence for the victim). As to the taking of human life, you have:

Also holds liable any person who directs or induces (1) Parricide;
another to commit any act of sexual harassment, or
who cooperates in the commission, the head of the (2) Murder;
office, educational or training institution solidarily.
(3) Homicide;
Complaints to be handled by a committee on decorum,
which shall be determined by rules and regulations on (4) Infanticide; and
such.
(5) Giving assistance to suicide.
Administrative sanctions shall not be a bar to
prosecution in the proper courts for unlawful acts of Note that parricide is premised on the relationship
sexual harassment. between the offender and the offended. The victim is
three days old or older. A stranger who conspires with
the parent is guilty of murder.
TITLE VIII. CRIMES AGAINST PERSONS
In infanticide, the victim is younger than three days or
Crimes against persons 72 hours old; can be committed by a stranger. If a
stranger who conspires with parent, both commit the
1. Parricide (Art. 246); crime of infanticide.

2. Murder (Art. 248);

Article 246. Parricide
3. Homicide (Art. 249);
Elements
4. Death caused in a tumultuous affray (Art. 251);
1. A person is killed;
5. Physical injuries inflicted in a tumultuous affray
(Art. 252); 2. The deceased is killed by the accused;

6. Giving assistance to suicide (Art. 253); 3. The deceased is the father, mother, or child,
whether legitimate or illegitimate, or a legitimate
7. Discharge of firearms (Art. 254); other ascendant or other descendant, or the
legitimate spouse, of the accused.
8. Infanticide (Art. 255);

9. Intentional abortion (Art. 256); This is a crime committed between people who are
related by blood. Between spouses, even though they
10. Unintentional abortion (Art. 257); are not related by blood, it is also parricide.

11. Abortion practiced by the woman herself or by The relationship must be in the direct line and not in the
her parents (Art. 258); collateral line.

12. Abortion practiced by a physician or midwife The relationship between the offender and the offended
and dispensing of abortives (Art. 259); party must be legitimate, except when the offender and
the offended party are related as parent and child.
13. Duel (Art. 260);
If the offender and the offended party, although related
14. Challenging to a duel (Art. 261); by blood and in the direct line, are separated by an
intervening illegitimate relationship, parricide can no
15. Mutilation (Art. 262); longer be committed. The illegitimate relationship
between the child and the parent renders all relatives
16. Serious physical injuries (Art. 263); after the child in the direct line to be illegitimate too.

66
 crime is infanticide and intent to conceal her dishonor is
The only illegitimate relationship that can bring about considered mitigating.
parricide is that between parents and illegitimate
children as the offender and the offended parties.
Article 247. Death or Physical Injuries Inflicted
Illustration: under Exceptional Circumstances

A is the parent of B, the illegitimate daughter. B Elements

married C and they begot a legitimate child D. If D,
daughter of B and C, would kill A, the grandmother, the 1. A legally married person, or a parent, surprises
crime cannot be parricide anymore because of the his spouse or his daughter, the latter under 18
intervening illegitimacy. The relationship between A years of age and living with him, in the act of
and D is no longer legitimate. Hence, the crime committing sexual intercourse with another
committed is homicide or murder. person;

Since parricide is a crime of relationship, if a stranger 2. He or she kills any or both of them, or inflicts
conspired in the commission of the crime, he cannot be upon any or both of them any serious physical
held liable for parricide. His participation would make injury in the act or immediately thereafter;
him liable for murder or for homicide, as the case may
be. The rule of conspiracy that the act of one is the act 3. He has not promoted or facilitated the
of all does not apply here because of the personal prostitution of his wife or daughter, or that he or
relationship of the offender to the offended party. she has not consented to the infidelity of the
other spouse.
Illustration:

A spouse of B conspires with C to kill B. C is the Two stages contemplated before the article will apply:
stranger in the relationship. C killed B with treachery.
The means employed is made known to A and A (1) When the offender surprised the other spouse
agreed that the killing will be done by poisoning. with a paramour or mistress. The attack must
take place while the sexual intercourse is going
As far as A is concerned, the crime is based on his on. If the surprise was before or after the
relationship with B. It is therefore parricide. The intercourse, no matter how immediate it may
treachery that was employed in killing Bong will only be be, Article 247 does not apply. The offender in
generic aggravating circumstance in the crime of this situation only gets the benefit of a
parricide because this is not one crime that requires a mitigating circumstance, that is, sufficient
qualifying circumstance. provocation immediately preceding the act.

But that same treachery, insofar as C is concerned, as (2) When the offender kills or inflicts serious
a stranger who cooperated in the killing, makes the physical injury upon the other spouse and/or
crime murder; treachery becomes a qualifying paramour while in the act of intercourse, or
circumstance. immediately thereafter, that is, after surprising.

In killing a spouse, there must be a valid subsisting You have to divide the stages because as far as the
marriage at the time of the killing. Also, the information first stage is concerned, it does not admit of any
should allege the fact of such valid marriage between situation less than sexual intercourse.
the accused and the victim.
So if the surprising took place before any actual sexual
In a ruling by the Supreme Court, it was held that if the intercourse could be done because the parties are only
information did not allege that the accused was legally in their preliminaries, the article cannot be invoked
married to the victim, he could not be convicted of anymore.
parricide even if the marriage was established during
the trial. In such cases, relationship shall be If the surprising took place after the actual sexual
appreciated as generic aggravating circumstance. intercourse was finished, even if the act being
performed indicates no other conclusion but that sexual
The Supreme Court has also ruled that Muslim intercourse was had, the article does not apply.
husbands with several wives can be convicted of
parricide only in case the first wife is killed. There is no As long as the surprising took place while the sexual
parricide if the other wives are killed although their intercourse was going on, the second stage becomes
marriage is recognized as valid. This is so because a immaterial.
Catholic man can commit the crime only once. If a
Muslim husband could commit this crime more than It is either killing or inflicting physical injuries while in
once, in effect, he is being punished for the marriage that act or immediately thereafter. If the killing was
which the law itself authorized him to contract. done while in that act, no problem. If the killing was
done when sexual intercourse is finished, a problem
That the mother killed her child in order to conceal her arises. First, were they surprised in actual sexual
dishonor is not mitigating. This is immaterial to the intercourse? Second, were they killed immediately
crime of parricide, unlike in the case of infanticide. If thereafter?
the child is less than three days old when killed, the

67
The phrase “immediately thereafter” has been In the case of People v. Abarca, 153 SCRA 735, two
interpreted to mean that between the persons suffered physical injuries as they were caught
surprising and the killing of the inflicting of in the crossfire when the accused shot the victim. A
the physical injury, there should be no break complex crime of double frustrated murder was not
of time. In other words, it must be a committed as the accused did not have the intent to kill
continuous process. the two victims. Here, the accused did not commit
murder when he fired at the paramour of his wife.
The article presumes that a legally married person who Inflicting death under exceptional circumstances is not
surprises his or her better half in actual sexual murder. The accused was held liable for negligence
intercourse would be overcome by the obfuscation he under the first part, second paragraph of Article 365,
felt when he saw them in the act that he lost his head. that is, less serious physical injuries through simple
The law, thus, affords protection to a spouse who is negligence. No aberratio ictus because he was acting
considered to have acted in a justified outburst of lawfully.
passion or a state of mental disequilibrium. The
offended spouse has no time to regain his self-control. A person who acts under Article 247 is not committing
a crime. Since this is merely an exempting
If there was already a break of time between the sexual circumstance, the accused must first be charged with:
act and the killing or inflicting of the injury, the law
presupposes that the offender regained his reason and (1) Parricide – if the spouse is killed;
therefore, the article will not apply anymore.
(2) Murder or homicide – depending on how the
As long as the act is continuous, the article still applies. killing was done insofar as the paramour or the
mistress is concerned;
Where the accused surprised his wife and his
paramour in the act of illicit intercourse, as a (3) Homicide – through simple negligence, if a third
result of which he went out to kill the paramour party is killed;
in a fit of passionate outburst. Although about
one hour had passed between the time the (4) Physical injuries – through reckless
accused discovered his wife having sexual imprudence, if a third party is injured.
intercourse with the victim and the time the
latter was actually killed, it was held in People If death results or the physical injuries are serious,
v. Abarca, 153 SCRA 735, that Article 247 was there is criminal liability although the penalty is only
applicable, as the shooting was a continuation destierro. The banishment is intended more for the
of the pursuit of the victim by the accused. protection of the offender rather than a penalty.
Here, the accused, after the discovery of the
act of infidelity of his wife, looked for a firearm If the crime committed is less serious physical injuries
in Tacloban City. or slight physical injuries, there is no criminal liability.

Article 247 does not provide that the victim is to be The article does not apply where the wife was not
killed instantly by the accused after surprising his surprised in flagrant adultery but was being abused by
spouse in the act of intercourse. What is required is a man as in this case there will be defense of relation.
that the killing is the proximate result of the outrage
overwhelming the accused upon the discovery of the If the offender surprised a couple in sexual intercourse,
infidelity of his spouse. The killing should have been and believing the woman to be his wife, killed them, this
actually motivated by the same blind impulse. article may be applied if the mistake of facts is proved.

Illustration: The benefits of this article do not apply to the person

who consented to the infidelity of his spouse or who
A upon coming home, surprised his wife, B, together facilitated the prostitution of his wife.
with C. The paramour was fast enough to jump out of
the window. A got the bolo and chased C but he The article is also made available to parents who shall
disappeared among the neighborhood. So A started surprise their daughter below 18 years of age in actual
looking around for about an hour but he could not find sexual intercourse while “living with them.” The act
the paramour. A gave up and was on his way home. should have been committed by the daughter with a
Unfortunately, the paramour, thinking that A was no seducer. The two stages also apply. The parents
longer around, came out of hiding and at that moment, cannot invoke this provision if, in a way, they have
A saw him and hacked him to death. There was a encouraged the prostitution of the daughter.
break of time and Article 247 does not apply anymore
because when he gave up the search, it is a The phrase “living with them” is understood to be in
circumstance showing that his anger had already died their own dwelling, because of the
down. embarrassment and humiliation done not
only to the parent but also to the parental
Article 247, far from defining a felony merely grants a abode.
privilege or benefit, more of an exempting circumstance
as the penalty is intended more for the protection of the If it was done in a motel, the article does not apply.
accused than a punishment. Death under exceptional
character can not be qualified by either aggravating or Illustration:
mitigating circumstances.

68
A abandoned his wife B for two years. To support their In murder, any of the following qualifying circumstances
children, A had to accept a relationship with another is present:
man. A learned of this, and surprised them in the act of
sexual intercourse and killed B. A is not entitled to (1) Treachery, taking advantage of superior
Article 248. Having abandoned his family for two years, strength, aid or armed men, or employing
it was natural for her to feel some affection for others, means to waken the defense, or of means or
more so of a man who could help her. persons to insure or afford impunity;

Homicide committed under exceptional circumstances, There is treachery when the offender commits
although punished with destierro, is within the any of the crimes against the person employing
jurisdiction of the Regional Trial Court and not the MTC means, methods or forms in the execution
because the crime charged is homicide or murder. The thereof that tend directly and especially to
exceptional circumstances, not being elements of the insure its execution without risk to himself
crime but a matter of defense, are not pleaded. It arising from the defense which the offended
practically grants a privilege amounting to an party might make.
exemption for adequate punishment.
This circumstance involves means, methods,
form in the execution of the killing which may
Article 248. Murder actually be an aggravating circumstance also,
in which case, the treachery absorbs the same.
Elements
Illustration:
1. A person was killed;
A person who is determined to kill resorted to
2. Accused killed him; the cover of darkness at nighttime to insure the
killing. Nocturnity becomes a means that
3. The killing was attended by any of the following constitutes treachery and the killing would be
qualifying circumstances – murder. But if the aggravating circumstance of
nocturnity is considered by itself, it is not one of
a. With treachery, taking advantage of those which qualify a homicide to murder. One
superior strength, with the aid or armed might think the killing is homicide unless
men, or employing means to waken the nocturnity is considered as constituting
defense, or of means or persons to treachery, in which case the crime is murder.
insure or afford impunity;
The essence of treachery is that the offended
b. In consideration of a price, reward or party was denied the chance to defend himself
promise; because of the means, methods, form in
executing the crime deliberately adopted by the
c. By means of inundation, fire, poison, offender. It is a matter of whether or not the
explosion, shipwreck, stranding of a offended party was denied the chance of
vessel, derailment or assault upon a defending himself.
railroad, fall of an airship, by means of
motor vehicles, or with the use of any If the offended was denied the chance to
other means involving great waste and defend himself, treachery qualifies the killing to
ruin; murder. If despite the means resorted to by the
offender, the offended was able to put up a
d. On occasion of any of the calamities defense, although unsuccessful, treachery is
enumerated in the preceding not available. Instead, some other
paragraph, or of an earthquake, circumstance may be present. Consider now
eruption of a volcano, destructive whether such other circumstance qualifies the
cyclone, epidemic, or any other public killing or not.
calamity;
Illustration:
e. With evident premeditation;
If the offender used superior strength and the
f. With cruelty, by deliberately and victim was denied the chance to defend
inhumanly augmenting the suffering of himself, there is treachery. The treachery must
the victim, or outraging or scoffing at be alleged in the information. But if the victim
his person or corpse. was able to put up an unsuccessful resistance,
there is no more treachery but the use of
4. The killing is not parricide or infanticide. superior strength can be alleged and it also
qualifies the killing to murder.

Homicide is qualified to murder if any of the qualifying One attendant qualifying circumstance is
circumstances under Article 248 is present. It is the enough. If there are more than one qualifying
unlawful killing of a person not constituting murder, circumstance alleged in the information for
parricide or infanticide. murder, only one circumstance will qualify the
killing to murder and the other circumstances
will be taken as generic.

69
To be considered qualifying, the particular So long as the means, methods and form in the
circumstance must be alleged in the execution is deliberately adopted, even if there
information. If what was alleged was not was no intent to kill, there is treachery.
proven and instead another circumstance, not
alleged, was established during the trial, even if (2) In consideration of price, reward or promises;
the latter constitutes a qualifying circumstance
under Article 248, the same can not qualify the (3) Inundation, fire, poison, explosion, shipwreck,
killing to murder. The accused can only be stranding of a vessel, derailment or assault
convicted of homicide. upon a street car or locomotive, fall of an
airship, by means of a motor vehicle, or with
Generally, murder cannot be committed if at the use of other means involving great waste
the beginning, the offended had no intent to kill and ruin;
because the qualifying circumstances must be
resorted to with a view of killing the offended The only problem insofar as the killing by fire is
party. So if the killing were at the “spur of the concerned is whether it would be arson with
moment”, even though the victim was denied homicide, or murder.
the chance to defend himself because of the
suddenness of the attack, the crime would only When a person is killed by fire, the primordial
be homicide. Treachery contemplates that the criminal intent of the offender is considered. If
means, methods and form in the execution the primordial criminal intent of the offender is
were consciously adopted and deliberately to kill and fire was only used as a means to do
resorted to by the offender, and were not so, the crime is only murder. If the primordial
merely incidental to the killing. criminal intent of the offender is to destroy
property with the use of pyrotechnics and
If the offender may have not intended to kill the incidentally, somebody within the premises is
victim but he only wanted to commit a crime killed, the crime is arson with homicide. But
against him in the beginning, he will still be this is not a complex crime under Article 48.
liable for murder if in the manner of committing This is single indivisible crime penalized under
the felony there was treachery and as a Article 326, which is death as a consequence
consequence thereof the victim died. This is of arson. That somebody died during such fire
based on the rule that a person committing a would not bring about murder because there is
felony shall be liable for the consequences no intent to kill in the mind of the offender. He
thereof although different from that which he intended only to destroy property. However, a
intended. higher penalty will be applied.

Illustration: In People v. Pugay and Samson, 167 SCRA

439, there was a town fiesta and the two
The accused, three young men, resented the accused were at the town plaza with their
fact that the victim continued to visit a girl in companions. All were uproariously happy,
their neighborhood despite the warning they apparently drenched with drink. Then, the
gave him. So one evening, after the victim had group saw the victim, a 25 year old retard
visited the girl, they seized and tied him to a walking nearby and they made him dance by
tree, with both arms and legs around the tree. tickling his sides with a piece of wood. The
They thought they would give him a lesson by victim and the accused Pugay were friends
whipping him with branches of gumamela until and, at times, slept in the same place together.
the victim fell unconscious. The accused left Having gotten bored with their form of
not knowing that the victim died. entertainment, accused Pugay went and got a
can of gasoline and poured it all over the
The crime committed was murder. The retard. Then, the accused Samson lit him up,
accused deprived the victim of the chance to making him a frenzied, shrieking human torch.
defend himself when the latter was tied to a The retard died.
tree. Treachery is a circumstance referring to
the manner of committing the crime. There It was held that Pugay was guilty of homicide
was no risk to the accused arising from the through reckless imprudence. Samson only
defense by the victim. guilty of homicide, with the mitigating
circumstance of no intention to commit so
Although what was initially intended was grave a wrong. There was no animosity
physical injury, the manner adopted by the between the two accused and the victim such
accused was treacherous and since the victim that it cannot be said that they resort to fire to
died as a consequence thereof, the crime is kill him. It was merely a part of their fun
murder -- although originally, there was no making but because their acts were felonious,
intent to kill. they are criminally liable.

When the victim is already dead, intent to kill (4) On occasion of any of the calamities
becomes irrelevant. It is important only if the enumerated in the preceding paragraph c, or
victim did not die to determine if the felony is an earthquake, eruption of volcano, destructive
physical injury or attempted or frustrated cyclone, epidemic or any other public calamity;
homicide.

70
(5) Evident premeditation; and (6) Killing of the victims hit by hand grenade
thrown at them is murder qualified by explosion
(6) Cruelty, by deliberately and inhumanly not by treachery.
augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse. (7) Where the accused housemaid gagged a three
year old boy, son of her master, with stockings,
Cruelty includes the situation where the victim placed him in a box with head down and legs
is already dead and yet, acts were committed upward and covered the box with some sacks
which would decry or scoff the corpse of the and other boxes, and the child instantly died
victim. The crime becomes murder. because of suffocation, and then the accused
demanded ransom from the parents, such did
Hence, this is not actually limited to cruelty. It not convert the offense into kidnapping with
goes beyond that because even if the victim is murder. The accused was well aware that the
already a corpse when the acts deliberately child could be suffocated to death in a few
augmenting the wrong done to him were minutes after she left. Ransom was only a part
committed, the killing is still qualified to murder of the diabolical scheme to murder the child, to
although the acts done no longer amount to conceal his body and then demand money
cruelty. before discovery of the body.

Under Article 14, the generic aggravating The essence of kidnapping or serious illegal detention
circumstance of cruelty requires that the victim is the actual confinement or restraint of the victim or
be alive, when the cruel wounds were inflicted deprivation of his liberty. If there is no showing that the
and, therefore, must be evidence to that effect. accused intended to deprive their victims of their liberty
Yet, in murder, aside from cruelty, any act that for some time and there being no appreciable interval
would amount to scoffing or decrying the between their being taken and their being shot, murder
corpse of the victim will qualify the killing to and not kidnapping with murder is committed.
murder.

Illustration:
Article 249. Homicide
Two people engaged in a quarrel and they
hacked each other, one killing the other. Up to Elements
that point, the crime is homicide. However, if
the killer tried to dismember the different parts 1. A person was killed;
of the body of the victim, indicative of an
intention to scoff at or decry or humiliate the 2. Offender killed him without any justifying
corpse of the victim, then what would have circumstances;
murder because this circumstance is
recognized under Article 248, even though it 3. Offender had the intention to kill, which is
was inflicted or was committed when the victim presumed;
was already dead.
4. The killing was not attended by any of the
The following are holdings of the Supreme Court with qualifying circumstances of murder, or by that
respect to the crime of murder: of parricide or infanticide.

(1) Killing of a child of tender age is murder

qualified by treachery because the weakness of Homicide is the unlawful killing of a person not
the child due to his tender age results in the constituting murder, parricide or infanticide.
absence of any danger to the aggressor.
Distinction between homicide and physical injuries:
(2) Evident premeditation is absorbed in price,
reward or promise, if without the premeditation In attempted or frustrated homicide, there is intent to
the inductor would not have induced the other kill.
to commit the act but not as regards the one
induced. In physical injuries, there is none. However, if as a
result of the physical injuries inflicted, the victim died,
(3 Abuse of superior strength is inherent in and the crime will be homicide because the law punishes
comprehended by the circumstance of the result, and not the intent of the act.
treachery or forms part of treachery.
The following are holdings of the Supreme Court with
(4) Treachery is inherent in poison. respect to the crime of homicide:

(5) Where one of the accused, who were charged (1) Physical injuries are included as one of the
with murder, was the wife of the deceased but essential elements of frustrated homicide.
here relationship to the deceased was not
alleged in the information, she also should be (2) If the deceased received two wounds from two
convicted of murder but the relationship should persons acting independently of each other and
be appreciated as aggravating. the wound inflicted by either could have caused
death, both of them are liable for the death of

71
 the victim and each of them is guilty of To be considered death in a tumultuous affray, there
homicide. must be:

(3) If the injuries were mortal but were only due to (1) a quarrel, a free-for-all, which should not
negligence, the crime committed will be serious involve organized group; and
physical injuries through reckless imprudence
as the element of intent to kill in frustrated (2) someone who is injured or killed because of the
homicide is incompatible with negligence or fight.
imprudence.
As long as it cannot be determined who killed the
(4) Where the intent to kill is not manifest, the victim, all of those persons who inflicted serious
crime committed has been generally physical injuries will be collectively answerable for the
considered as physical injuries and not death of that fellow.
attempted or frustrated murder or homicide.
The Revised Penal Code sets priorities as to who may
(5) When several assailants not acting in be liable for the death or physical injury in tumultuous
conspiracy inflicted wounds on a victim but it affray:
cannot be determined who inflicted which
would which caused the death of the victim, all (1) The persons who inflicted serious physical
are liable for the victim’s death. injury upon the victim;

Note that while it is possible to have a crime of (2) If they could not be known, then anyone who
homicide through reckless imprudence, it is not may have employed violence on that person
possible to have a crime of frustrated homicide through will answer for his death.
reckless imprudence.
(3) If nobody could still be traced to have
employed violence upon the victim, nobody will
Article 251. Death Caused in A Tumultuous Affray answer. The crimes committed might be
disturbance of public order, or if participants
Elements are armed, it could be tumultuous disturbance,
or if property was destroyed, it could be
1. There are several persons; malicious mischief.

2. They do not compose groups organized for the The fight must be tumultuous. The participants must
common purpose of assaulting and attacking not be members of an organized group. This is
each other reciprocally; different from a rumble which involves organized
groups composed of persons who are to attack others.
3. These several persons quarreled and assaulted If the fight is between such groups, even if you cannot
one another in a confused and tumultuous identify who, in particular, committed the killing, the
manner; adverse party composing the organized group will be
collectively charged for the death of that person.
4. Someone was killed in the course of the affray;
Illustration:
5. It can not be ascertained who actually killed the
deceased; If a fight ensued between 20 Sigue-Sigue Gang men
and 20 Bahala-Na- Gang men, and in the course
6. The person or persons who inflicted serious thereof, one from each group was killed, the crime
physical injuries or who used violence can be would be homicide or murder; there will be collective
identified. responsibility on both sides. Note that the person killed
need not be a participant in the fight.

Tumultuous affray simply means a commotion in a

tumultuous and confused manner, to such an Article 252. Physical Injuries Inflicted in A
extent that it would not be possible to identify Tumultuous Affray
who the killer is if death results, or who
inflicted the serious physical injury, but the Elements
person or persons who used violence are
known. 1. There is a tumultuous affray;

It is not a tumultuous affray which brings about the 2. A participant or some participants thereof
crime; it is the inability to ascertain actual perpetrator. suffered serious physical injuries or physical
It is necessary that the very person who caused the injuries of a less serious nature only;
death can not be known, not that he can not be
identified. Because if he is known but only his identity 3. The person responsible thereof can not be
is not known, then he will be charged for the crime of identified;
homicide or murder under a fictitious name and not
death in a tumultuous affray. If there is a conspiracy, 4. All those who appear to have used violence
this crime is not committed. upon the person of the offended party are
known.

72
 (2) The person attempting to commit suicide is not
liable if he survives. The accused is liable if he
If in the course of the tumultuous affray, only serious or kills the victim, his sweetheart, because of a
less serious physical injuries are inflicted upon a suicide pact.
participant, those who used violence upon the person
of the offended party shall be held liable. In other penal codes, if the person who wanted to die
did not die, there is liability on his part because there is
In physical injuries caused in a tumultuous affray, the public disturbance committed by him. Our Revised
conditions are also the same. But you do not have a Penal Code is silent but there is no bar against
crime of physical injuries resulting from a tumultuous accusing the person of disturbance of public order if
affray if the physical injury is only slight. The physical indeed serious disturbance of public peace occurred
injury should be serious or less serious and resulting due to his attempt to commit suicide. If he is not
from a tumultuous affray. So anyone who may have prosecuted, this is out of pity and not because he has
employed violence will answer for such serious or less not violated the Revised Penal Code.
serious physical injury.
In mercy killing, the victim is not in a position to commit
If the physical injury sustained is only slight, this is suicide. Whoever would heed his advice is not really
considered as inherent in a tumultuous affray. The giving assistance to suicide but doing the killing
offended party cannot complain if he cannot identify himself. In giving assistance to suicide, the principal
who inflicted the slight physical injuries on him. actor is the person committing the suicide.

Both in euthanasia and suicide, the intention to the end

Article 253. Giving Assistance to Suicide life comes from the victim himself; otherwise the article
does not apply. The victim must persistently induce the
Acts punished offender to end his life. If there is only slight
persuasion to end his life, and the offender readily
1. Assisting another to commit suicide, whether assented thereto.
the suicide is consummated or not;

2. Lending his assistance to another to commit Article 254. Discharge of Firearms

suicide to the extent of doing the killing himself.
1. Offender discharges a firearm against or at
another person;
Giving assistance to suicide means giving means
(arms, poison, etc.) or whatever manner of positive and 2. Offender had no intention to kill that person.
direct cooperation (intellectual aid, suggestions
regarding the mode of committing suicide, etc.).
This crime cannot be committed through imprudence
In this crime, the intention must be for the person who because it requires that the discharge must be directed
is asking the assistance of another to commit suicide. at another.
If the intention is not to commit suicide, as when he just If the firearm is directed at a person and the trigger was
wanted to have a picture taken of him to impress upon pressed but did not fire, the crime is frustrated
the world that he is committing suicide because he is discharge of firearm.
not satisfied with the government, the crime is held to
be inciting to sedition. If the discharge is not directed at a person, the crime
may constitute alarm and scandal.
He becomes a co-conspirator in the crime of inciting to
sedition, but not of giving assistance to suicide because The following are holdings of the Supreme Court with
the assistance must be given to one who is really respect to this crime:
determined to commit suicide.
(1) If serious physical injuries resulted from
If the person does the killing himself, the penalty is discharge, the crime committed is the complex
similar to that of homicide, which is reclusion temporal. crime of serious physical injury with illegal
There can be no qualifying circumstance because the discharge of firearm, or if less serious physical
determination to die must come from the victim. This injury, the complex crime of less serious
does not contemplate euthanasia or mercy killing physical injury with illegal discharge of firearm
where the crime is homicide (if without consent; with will apply.
consent, covered by Article 253).
(2) Firing a gun at a person even if merely to
frighten him constitutes illegal discharge of
The following are holdings of the Supreme Court with firearm.
respect to this crime:

(1) The crime is frustrated if the offender gives the Article 255. Infanticide
assistance by doing the killing himself as firing
upon the head of the victim but who did not die Elements
due to medical assistance.
1. A child was killed by the accused;

73
 3. Acting (by administering drugs or beverages),
2. The deceased child was less than 72 hours with the consent of the pregnant woman.
old.

Elements
This is a crime based on the age of the victim. The
victim should be less than three days old. 1. There is a pregnant woman;

The offender may actually be the parent of the child. 2. Violence is exerted, or drugs or beverages
But you call the crime infanticide, not parricide, if the administered, or that the accused otherwise
age of the victim is less than three days old. If the acts upon such pregnant woman;
victim is three days old or above, the crime is parricide.
3. As a result of the use of violence or drugs or
Illustration: beverages upon her, or any other act of the
accused, the fetus dies, either in the womb or
An unmarried woman, A, gave birth to a child, B. To after having been expelled therefrom;
conceal her dishonor, A conspired with C to dispose of
the child. C agreed and killed the child B by burying 4. The abortion is intended.
the child somewhere.

If the child was killed when the age of the child was Abortion is the violent expulsion of a fetus from the
three days old and above already, the crime of A is maternal womb. If the fetus has been delivered but it
parricide. The fact that the killing was done to conceal could not subsist by itself, it is still a fetus and not a
her dishonor will not mitigate the criminal liability person. Thus, if it is killed, the crime committed is
anymore because concealment of dishonor in killing the abortion not infanticide.
child is not mitigating in parricide.
Distinction between infanticide and abortion
If the crime committed by A is parricide because the
age of the child is three days old or above, the crime of It is infanticide if the victim is already a person less that
the co-conspirator C is murder. It is not parricide three days old or 72 hours and is viable or capable of
because he is not related to the victim. living separately from the mother’s womb.

If the child is less than three days old when killed, both It is abortion if the victim is not viable but remains to be
the mother and the stranger commits infanticide a fetus.
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 Abortion is not a crime against the woman but against
motive for the mother to have the child killed is the fetus. If mother as a consequence of abortion
mitigating. suffers death or physical injuries, you have a complex
crime of murder or physical injuries and abortion.
Concealment of dishonor is not an element of
infanticide. It merely lowers the penalty. If the child is In intentional abortion, the offender must know of the
abandoned without any intent to kill and death results pregnancy because the particular criminal intention is
as a consequence, the crime committed is not to cause an abortion. Therefore, the offender must
infanticide but abandonment under Article 276. have known of the pregnancy for otherwise, he would
not try an abortion.
If the purpose of the mother is to conceal her dishonor,
infanticide through imprudence is not committed If the woman turns out not to be pregnant and someone
because the purpose of concealing the dishonor is performs an abortion upon her, he is liable for an
incompatible with the absence of malice in culpable impossible crime if the woman suffers no physical
felonies. injury. If she does, the crime will be homicide, serious
physical injuries, etc.
If the child is born dead, or if the child is already dead,
infanticide is not committed. 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
Article 256. Intentional Abortion personality separate from the mother.

Acts punished But even though the umbilical cord has been cut,
Article 41 of the Civil Code provides that if the fetus had
1. Using any violence upon the person of the an intra-uterine life of less than seven months, it must
pregnant woman; survive at least 24 hours after the umbilical cord is cut
for it to be considered born.
2. Acting, but without using violence, without the
consent of the woman. (By administering drugs Illustration:
or beverages upon such pregnant woman
without her consent.) A mother delivered an offspring which had an intra-
uterine life of seven months. Before the umbilical cord
is cut, the child was killed.

74
 If the pregnant woman was killed by violence by her
If it could be shown that had the umbilical cord been husband, the crime committed is the complex crime of
cut, that child, if not killed, would have survived beyond parricide with unlawful abortion.
24 hours, the crime is infanticide because that
conceived child is already considered born. Unintentional abortion may be committed through
negligence as it is enough that the use of violence be
If it could be shown that the child, if not killed, would not voluntary.
have survived beyond 24 hours, the crime is abortion
because what was killed was a fetus only. Illustration:

In abortion, the concealment of dishonor as a motive of A quarrel ensued between A, husband, and B, wife. A
the mother to commit the abortion upon herself is became so angry that he struck B, who was then
mitigating. It will also mitigate the liability of the pregnant, with a soft drink bottle on the hip. Abortion
maternal grandparent of the victim – the mother of the resulted and B died.
pregnant woman – if the abortion was done with the
consent of the pregnant woman. In US v. Jeffry, 15 Phil. 391, the Supreme Court said
that knowledge of pregnancy of the offended party is
If the abortion was done by the mother of the pregnant not necessary. In People v. Carnaso, decided on
woman without the consent of the woman herself, even April 7, 1964, however, the Supreme Court held that
if it was done to conceal dishonor, that circumstance knowledge of pregnancy is required in unintentional
will not mitigate her criminal liability. abortion.

But if those who performed the abortion are the parents Criticism:
of the pregnant woman, or either of them, and the
pregnant woman consented for the purpose of Under Article 4, paragraph 1 of the Revised Penal
concealing her dishonor, the penalty is the same as Code, any person committing a felony is criminally
that imposed upon the woman who practiced the liable for all the direct, natural, and logical
abortion upon herself . consequences of his felonious acts although it may be
different from that which is intended. The act of
Frustrated abortion is committed if the fetus that is employing violence or physical force upon the woman
expelled is viable and, therefore, not dead as abortion is already a felony. It is not material if offender knew
did not result despite the employment of adequate and about the woman being pregnant or not.
sufficient means to make the pregnant woman abort. If
the means are not sufficient or adequate, the crime If the act of violence is not felonious, that is, act of self-
would be an impossible crime of abortion. In defense, and there is no knowledge of the woman’s
consummated abortion, the fetus must be dead. pregnancy, there is no liability. If the act of violence is
not felonious, but there is knowledge of the woman’s
One who persuades her sister to abort is a co-principal, pregnancy, the offender is liable for unintentional
and one who looks for a physician to make his abortion.
sweetheart abort is an accomplice. The physician will
be punished under Article 259 of the Revised Penal Illustration:
Code.
The act of pushing another causing her to fall is a
felonious act and could result in physical injuries.
Article 257. Unintentional Abortion Correspondingly, if not only physical injuries were
sustained but abortion also resulted, the felonious act
1. There is a pregnant woman; of pushing is the proximate cause of the unintentional
abortion.
2. Violence is used upon such pregnant woman
without intending an abortion;
Questions & Answers
3. The violence is intentionally exerted;

4. As a result of the violence, the fetus dies, either 1. A pregnant woman decided to commit
in the womb or after having been expelled suicide. She jumped out of a window of a building but
therefrom. she landed on a passerby. She did not die but an
abortion followed. Is she liable for unintentional
abortion?
Unintentional abortion requires physical violence
inflicted deliberately and voluntarily by a third person No. What is contemplated in unintentional
upon the person of the pregnant woman. Mere abortion is that the force or violence must come from
intimidation is not enough unless the degree of another. If it was the woman doing the violence upon
intimidation already approximates violence. herself, it must be to bring about an abortion, and
therefore, the crime will be intentional abortion. In this
If the pregnant woman aborted because of intimidation, case, where the woman tried to commit suicide, the act
the crime committed is not unintentional abortion of trying to commit suicide is not a felony under the
because there is no violence; the crime committed is Revised Penal Code. The one penalized in suicide is
light threats. the one giving assistance and not the person trying to
commit suicide.

75
 None. This is a case of therapeutic abortion
2. If the abortive drug used in abortion is a which is done out of a state of necessity. Therefore, the
prohibited drug or regulated drug under Presidential requisites under Article 11, paragraph 4, of the Revised
Decree No. 6425 (The Dangerous Drugs Act of 1972), Penal Code must be present. There must be no other
as amended, what are the crimes committed? practical or less harmful means of saving the life of the
mother to make the killing justified.
The crimes committed are (1) intentional
abortion; and (2) violation of the Dangerous Drugs Act
of 1972. Article 260. Responsibility of Participants in A Duel

Acts punished
Article 258. Abortion Practiced by the Woman
Herself or by Her Parents 1. Killing one’s adversary in a duel;

Elements 2. Inflicting upon such adversary physical injuries;

1. There is a pregnant woman who has suffered 3. Making a combat although no physical injuries
an abortion; have been inflicted.

2. The abortion is intended;

Persons liable
3. Abortion is caused by –
1. The person who killed or inflicted physical
a. The pregnant woman herself; injuries upon his adversary, or both combatants
in any other case, as principals.
b. Any other person, with her consent; or
2. The seconds, as accomplices.
c. Any of her parents, with her consent for
the purpose of concealing her
dishonor. There is no such crime nowadays because people hit
each other even without entering into any pre-
conceived agreement. This is an obsolete provision.
Article 259. Abortion Practiced by A Physician or
Midwife and Dispensing of Abortives A duel may be defined as a formal or regular combat
previously consented to by two parties in the presence
Elements of two or more seconds of lawful age on each side, who
make the selection of arms and fix all the other
1. There is a pregnant woman who has suffered conditions of the fight to settle some antecedent
an abortion; quarrel.

2. The abortion is intended; If these are not the conditions of the fight, it is not a
duel in the sense contemplated in the Revised Penal
3. Offender, who must be a physician or midwife, Code. It will be a quarrel and anyone who killed the
caused or assisted in causing the abortion; other will be liable for homicide or murder, as the case
may be.
4. Said physician or midwife took advantage of his
or her scientific knowledge or skill. The concept of duel under the Revised Penal Code is a
classical one.

If the abortion is produced by a physician to save the

life of the mother, there is no liability. This is known as Article 261. Challenging to A Duel
a therapeutic abortion. But abortion without medical
necessity to warrant it is punishable even with the Acts punished
consent of the woman or her husband.
1. Challenging another to a duel;
Illustration:
2. Inciting another to give or accept a challenge to
A woman who is pregnant got sick. The doctor a duel;
administered a medicine which resulted in Abortion.
The crime committed was unintentional abortion 3. Scoffing at or decrying another publicly for
through negligence or imprudence. having refused to accept a challenge to fight a
duel.

Illustration:
Question & Answer
If one challenges another to a duel by shouting “Come
What is the liability of a physician who aborts down, Olympia, let us measure your prowess. We will
the fetus to save the life of the mother? see whose intestines will come out. You are a coward if
you do not come down”, the crime of challenging to a

76
duel is not committed. What is committed is the crime offended party, he can not be guilty of serious physical
of light threats under Article 285, paragraph 1 of the injuries.
Revised Penal Code.

Serious physical injuries

Article 262. Mutilation
1. When the injured person becomes insane,
Acts punished imbecile, impotent or blind in consequence of
the physical injuries inflicted;
1. Intentionally mutilating another by depriving
him, either totally or partially, of some essential 2. When the injured person –
organ for reproduction;
a. Loses the use of speech or the power
Elements to hear or to smell, or loses an eye, a
hand, afoot, an arm, or a leg;
1. There be a castration, that is, mutilation
of organs necessary for generation, b. Loses the use of any such member; or
such as the penis or ovarium;
c. Becomes incapacitated for the work in
2. The mutilation is caused purposely and which he was theretofore habitually
deliberately, that is, to deprive the engaged, in consequence of the
offended party of some essential organ physical injuries inflicted;
for reproduction
3. When the person injured –
2. Intentionally making other mutilation, that is, by
lopping or clipping off any part of the body of a. Becomes deformed; or
the offended party, other than the essential
organ for reproduction, to deprive him of that b. Loses any other member of his body;
part of his body. or

c. Loses the use thereof; or

Mutilation is the lopping or clipping off of some part of
the body. d. Becomes ill or incapacitated for the
performance of the work in which he
The intent to deliberately cut off the particular part of was habitually engaged for more than
the body that was removed from the offended party 90 days in consequence of the physical
must be established. If there is no intent to deprive injuries inflicted;
victim of particular part of body, the crime is only
serious physical injury. 4. When the injured person becomes ill or
incapacitated for labor for more than 30 days
The common mistake is to associate this with the (but must not be more than 90 days), as a
reproductive organs only. Mutilation includes any part result of the physical injuries inflicted.
of the human body that is not susceptible to grow
again.
The crime of physical injuries is a crime of result
If what was cut off was a reproductive organ, the because under our laws the crime of physical injuries is
penalty is much higher than that for homicide. based on the gravity of the injury sustained. So this
crime is always consummated, notwithstanding the
This cannot be committed through criminal negligence. opinion of Spanish commentators like Cuello Calon,
Viada, etc., that it can be committed in the attempted or
frustrated stage.
Article 263. Serious Physical Injuries
If the act does not give rise to injuries, you will not be
How committed able to say whether it is attempted slight physical
injuries, attempted less serious physical injuries, or
1. By wounding; attempted serious physical injuries unless the result is
there.
2. By beating;
The reason why there is no attempted or frustrated
3. By assaulting; or physical injuries is because the crime of physical
injuries is determined on the gravity of the injury. As
4. By administering injurious substance. long as the injury is not there, there can be no
attempted or frustrated stage thereof.

In one case, the accused, while conversing with the Classification of physical injuries:
offended party, drew the latter’s bolo from its scabbard.
The offended party caught hold of the edge of the blade (1) Between slight physical injuries and less
of his bolo and wounded himself. It was held that since serious physical injuries, you have a duration of
the accused did not wound, beat or assault the one to nine days if slight physical injuries; or 10

77
 days to 20 days if less serious physical injuries.
Consider the duration of healing and treatment. The offender threw acid on the face of the
offended party. Were it not for timely medical attention,
The significant part here is between slight a deformity would have been produced on the face of
physical injuries and less serious physical the victim. After the plastic surgery, the offended party
injuries. You will consider not only the healing was more handsome than before the injury. What
duration of the injury but also the medical crime was committed? In what stage was it committed?
attendance required to treat the injury. So the
healing duration may be one to nine days, but if The crime is serious physical injuries because
the medical treatment continues beyond nine the problem itself states that the injury would have
days, the physical injuries would already qualify produced a deformity. The fact that the plastic surgery
as less serious physical injuries. The medical removed the deformity is immaterial because in law
treatment may have lasted for nine days, but if what is considered is not the artificial treatment but the
the offended party is still incapacitated for labor natural healing process.
beyond nine days, the physical injuries are
already considered less serious physical In a case decided by the Supreme Court, accused was
injuries. charged with serious physical injuries because the
injuries produced a scar. He was convicted under
(2) Between less serious physical injuries and Article 263 (4). He appealed because, in the course of
serious physical injuries, you do not consider the trial, the scar disappeared. It was held that
the period of medical treatment. You only accused can not be convicted of serious physical
consider the period when the offended party is injuries. He is liable only for slight physical injuries
rendered incapacitated for labor. because the victim was not incapacitated, and there
was no evidence that the medical treatment lasted for
If the offended party is incapacitated to work for more than nine days.
less than 30 days, even though the treatment
continued beyond 30 days, the physical injuries Serious physical injuries is punished with higher
are only considered less serious because for penalties in the following cases:
purposes of classifying the physical injuries as
serious, you do not consider the period of (1) If it is committed against any of the persons
medical treatment. You only consider the referred to in the crime of parricide under
period of incapacity from work. Article 246;

(3) When the injury created a deformity upon the (2) If any of the circumstances qualifying murder
offended party, you disregard the healing attended its commission.
duration or the period of medical treatment
involved. At once, it is considered serious Thus, a father who inflicts serious physical injuries
physical injuries. upon his son will be liable for qualified 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 Republic Act No. 8049 (The Anti-Hazing Law)
beyond nine days, that deformity will bring
about the crime of serious physical injuries. Hazing -- This is any initiation rite or practice which is a
prerequisite for admission into membership in a
Deformity requires the concurrence of the fraternity or sorority or any organization which places
following conditions: the neophyte or applicant in some embarrassing or
humiliating situations or otherwise subjecting him to
(1) The injury must produce ugliness; physical or psychological suffering of injury. These do
not include any physical, mental, psychological testing
(2) It must be visible; and training procedure and practice to determine and
enhance the physical and psychological fitness of the
(3) The ugliness will not disappear through prospective regular members of the below.
natural healing process.
Organizations include any club or AFP, PNP, PMA or
Illustration: officer or cadet corps of the CMT or CAT.

Loss of molar tooth – This is not deformity as it Section 2 requires a written notice to school authorities
is not visible. from the head of the organization seven days prior to
the rites and should not exceed three days in duration.
Loss of permanent front tooth – This is
deformity as it is visible and permanent. Section 3 requires supervision by head of the school or
the organization of the rites.
Loss of milk front tooth – This is not deformity
as it is visible but will be naturally replaced. 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
Question & Answer
power to hear or smell or an eye, a foot, an arm or a

78
leg, or the use of any such member or any of the If the physical injuries do not incapacitate the offended
serious physical injuries or the less serious physical party nor necessitate medical attendance, slight
injuries. Also if the victim is below 12, or becomes physical injuries is committed. But if the physical
incapacitated for the work he habitually engages in for injuries heal after 30 days, serious physical injuries is
30, 10, 1-9 days. committed under Article 263, paragraph 4.

It holds the parents, school authorities who consented Article 265 is an exception to Article 48 in relation to
or who had actual knowledge if they did nothing to complex crimes as the latter only takes place in cases
prevent it, officers and members who planned, where the Revised Penal Code has no specific
knowingly cooperated or were present, present alumni provision penalizing the same with a definite, specific
of the organization, owner of the place where such penalty. Hence, there is no complex crime of slander by
occurred liable. deed with less serious physical injuries but only less
serious physical injuries if the act which was committed
Makes presence a prima facie presumption of guilt for produced the less serious physical injuries with the
such. manifest intent to insult or offend the offended party, or
under circumstances adding ignominy to the offense.

Article 264. Administering Injurious Substances or

Beverages Article 266. Slight Physical Injuries and
Maltreatment
Elements
Acts punished
1. Offender inflicted upon another any serious
physical injury; 1. Physical injuries incapacitated the offended
party for labor from one to nine days, or
2. It was done by knowingly administering to him required medical attendance during the same
any injurious substance or beverages or by period;
taking advantage of his weakness of mind or
credulity; 2. Physical injuries which did not prevent the
offended party from engaging in his habitual
3. He had no intent to kill. work or which did not require medical
attendance;

Article 265. Less Serious Physical Injuries 3. Ill-treatment of another by deed without causing
any injury.
Matters to be noted in this crime
This involves even ill-treatment where there is no sign
1. Offended party is incapacitated for labor for 10 of injury requiring medical treatment.
days or more (but not more than 30 days), or
needs medical attendance for the same period Slapping the offended party is a form of ill-treatment
of time; which is a form of slight physical injuries.

2. The physical injuries must not be those But if the slapping is done to cast dishonor upon the
described in the preceding articles. 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
Qualified as to penalty party out of a quarrel or anger, the crime is still ill-
treatment or slight physical injuries.
1. A fine not exceeding P 500.00, in addition to
arresto mayor, shall be imposed for less Illustration:
serious physical injuries when –
If Hillary slaps Monica and told her “You choose your
a. There is a manifest intent to insult or seconds . Let us meet behind the Quirino Grandstand
offend the injured person; or and see who is the better and more beautiful between
the two of us”, the crime is not ill-treatment, slight
b. There are circumstances adding physical injuries or slander by deed; it is a form of
ignominy to the offense. challenging to a duel. The criminal intent is to challenge
a person to a duel.
2. A higher penalty is imposed when the victim is
either – The crime is slight physical injury if there is no proof as
to the period of the offended party’s incapacity for labor
a. The offender’s parents, ascendants, or of the required medical attendance.
guardians, curators or teachers; or

b. Persons of rank or person in authority, Republic Act No. 7610 (Special Protection of
provided the crime is not direct assault. Children against Child Abuse, Exploitation and
Discrimination Act), in relation to murder, mutilation or
injuries to a child

79
The last paragraph of Article VI of Republic Act No. a. By inserting his penis into another
7610, provides: person's mouth or anal orifice; or

“For purposes of this Act, the penalty for the b. By inserting any instrument or object
commission of acts punishable under Articles 248, 249, into the genital or anal orifice of another
262 (2) and 263 (1) of Act No 3815, as amended of the person;
Revised Penal Code for the crimes of murder,
homicide, other intentional mutilation, and serious 3. The act of sexual assault is accomplished
physical injuries, respectively, shall be reclusion under any of the following circumstances:
perpetua when the victim is under twelve years of age.”
a. By using force or intimidation; or
The provisions of Republic Act No. 7160 modified the
provisions of the Revised Penal Code in so far as the b. When the woman is deprived of reason
victim of the felonies referred to is under 12 years of or otherwise unconscious; or
age. The clear intention is to punish the said crimes
with a higher penalty when the victim is a child of tender c. By means of fraudulent machination or
age. Incidentally, the reference to Article 249 of the grave abuse of authority; or
Code which defines and penalizes the crime of
homicide were the victim is under 12 years old is an d. When the woman is under 12 years of
error. Killing a child under 12 is murder, not homicide, age or demented.
because the victim is under no position to defend
himself as held in the case of People v. Ganohon, 196
SCRA 431. Republic Act No. 8353 (An Act Expanding the
Definition of the Crime of Rape, Reclassifying the
For murder, the penalty provided by the Code, as Same as A Crime against Persons, Amending for
amended by Republic Act No. 7659, is reclusion the Purpose the Revised Penal Code) repealed
perpetua to death – higher than what Republic Act no. Article335 on rape and added a chapter on Rape under
7610 provides. Accordingly, insofar as the crime is Title 8.
murder, Article 248 of the Code, as amended, shall
govern even if the victim was under 12 years of age. It Classification of rape
is only in respect of the crimes of intentional mutilation
in paragraph 2 of Article 262 and of serious physical (1) Traditional concept under Article 335 – carnal
injuries in paragraph 1 of Article 263 of the Code that knowledge with a woman against her will. The
the quoted provision of Republic Act No. 7160 may be offended party is always a woman and the
applied for the higher penalty when the victim is under offender is always a man.
12 years old.
(2) Sexual assault - committed with an instrument
or an object or use of the penis with penetration
Article 266-A. Rape, When and How Committed of mouth or anal orifice. The offended party or
the offender can either be man or woman, that
Elements under paragraph 1 is, if a woman or a man uses an instrument on
anal orifice of male, she or he can be liable for
1. Offender is a man; rape.

2. Offender had carnal knowledge of a woman; Rape is committed when a man has carnal knowledge
of a woman under the following
3. Such act is accomplished under any of the circumstances:
following circumstances:
(1) Where intimidation or violence is employed with
a. By using force or intimidation; a view to have carnal knowledge of a woman;

b. When the woman is deprived of reason (2) Where the victim is deprived of reason or
or otherwise unconscious; otherwise unconscious;

c. By means of fraudulent machination or (3) Where the rape was made possible because of
grave abuse of authority; or fraudulent machination or abuse of authority; or

d. When the woman is under 12 years of (4) Where the victim is under 12 years of age, or
age or demented. demented, even though no intimidation nor
violence is employed.

Elements under paragraph 2 Sexual assault is committed under the following

circumstances:
1. Offender commits an act of sexual assault;
(1) Where the penis is inserted into the anal or oral
2. The act of sexual assault is committed by any orifice; or
of the following means:
(2) Where an instrument or object is inserted into
the genital or oral orifice.

80
If the crime of rape / sexual assault is committed with (h) Where the victim has suffered
the following circumstances, the following penalties are permanent physical mutilation;
imposed:
(i) Where the pregnancy of the offended
(1) Reclusion perpetua to death/ prision mayor to party is known to the rapist at the time
reclusion temporal -- of the rape; or

(a) Where rape is perpetrated by the (j) Where the rapist is aware of the
accused with a deadly weapon; or victim’s mental disability, emotional
disturbance or physical handicap.
(b) Where it is committed by two or more
persons.
Prior to the amendment of the law on rape, a complaint
(2) Reclusion perpetua to death/ reclusion must be filed by the offended woman. The persons
temporal -- who may file the same in behalf of the offended woman
if she is a minor or if she was incapacitated to file, were
(a) Where the victim of the rape has as follows: a parent; in default of parents, a
become insane; or grandparent; in default or grandparent, the judicial
guardian.
(b) Where the rape is attempted but a
killing was committed by the offender Since rape is not a private crime anymore, it can be
on the occasion or by reason of the prosecuted even if the woman does not file a
rape. complaint.

(3) Death / reclusion perpetua -- If carnal knowledge was made possible because of
fraudulent machinations and grave abuse of authority,
Where homicide is committed by reason or on the crime is rape. This absorbs the crime of qualified
occasion of a consummated rape. and simple seduction when no force or violence was
used, but the offender abused his authority to rape the
(4) Death/reclusion temporal -- victim.

(a) Where the victim is under 18 years of Under Article 266-C, the offended woman may pardon
age and the offender is her ascendant, the offender through a subsequent valid marriage, the
stepfather, guardian, or relative by effect of which would be the extinction of the offender’s
affinity or consanguinity within the 3rd liability. Similarly, the legal husband may be pardoned
civil degree, or the common law by forgiveness of the wife provided that the marriage is
husband of the victim’s mother; or not void ab initio. Obviously, under the new law, the
husband may be liable for rape if his wife does not want
(b) Where the victim was under the to have sex with him. It is enough that there is
custody of the police or military indication of any amount of resistance as to make it
authorities, or other law enforcement rape.
agency;
Incestuous rape was coined in Supreme Court
(c) Where the rape is committed in full decisions. It refers to rape committed by an ascendant
view of the victim’s husband, the of the offended woman. In such cases, the force and
parents, any of the children or relatives intimidation need not be of such nature as would be
by consanguinity within the 3rd civil required in rape cases had the accused been a
degree; stranger. Conversely, the Supreme Court expected
that if the offender is not known to woman, it is
(d) Where the victim is a religious, that is, necessary that there be evidence of affirmative
a member of a legitimate religious resistance put up by the offended woman. Mere “no,
vocation and the offender knows the no” is not enough if the offender is a stranger, although
victim as such before or at the time of if the rape is incestuous, this is enough.
the commission of the offense;
The new rape law also requires that there be a physical
(e) Where the victim is a child under 7 yrs overt act manifesting resistance, if the offended party
of age; was in a situation where he or she is incapable of
giving valid consent, this is admissible in evidence to
(f) Where the offender is a member of the show that carnal knowledge was against his or her will.
AFP, its paramilitary arm, the PNP, or
any law enforcement agency and the When the victim is below 12 years old, mere sexual
offender took advantage of his position; intercourse with her is already rape. Even if it was she
who wanted the sexual intercourse, the crime will be
(g) Where the offender is afflicted with rape. This is referred to as statutory rape.
AIDS or other sexually transmissible
diseases, and he is aware thereof In other cases, there must be force, intimidation, or
when he committed the rape, and the violence proven to have been exerted to bring about
disease was transmitted;

81
carnal knowledge or the woman must have been underwear and placed himself on top of the woman and
deprived of reason or otherwise unconscious. started performing sexual movements. Thereafter,
when he was finished, he stood up and left. The crime
Where the victim is over 12 years old, it must be shown committed is only acts of lasciviousness and not
that the carnal knowledge with her was obtained attempted rape. The fact that he did not remove the
against her will. It is necessary that there be evidence underwear of the victim indicates that he does not have
of some resistance put up by the offended woman. It is a real intention to effect a penetration. It was only to
not, however, necessary that the offended party should satisfy a lewd design.
exert all her efforts to prevent the carnal intercourse. It
is enough that from her resistance, it would appear that Is there a complex crime under Article 48 of kidnapping
the carnal intercourse is against her will. with rape? Read kidnapping.

Mere initial resistance, which does not indicate refusal

on the part of the offended party to the sexual TITLE IX. CRIMES AGAINST PERSONAL LIBERTY
intercourse, will not be enough to bring about the crime AND SECURITY
of rape.
Crimes against liberty
Note that it has been held that in the crime of rape,
conviction does not require medico-legal finding of any 1. Kidnapping and serious illegal detention (Art.
penetration on the part of the woman. A medico-legal 267);
certificate is not necessary or indispensable to convict
the accused of the crime of rape. 2. Slight illegal detention (Art. 268);

It has also been held that although the offended woman 3. Unlawful arrest (Art. 269);
who is the victim of the rape failed to adduce evidence
regarding the damages to her by reason of the rape, 4. Kidnapping and failure to return a minor (Art.
the court may take judicial notice that there is such 270);
damage in crimes against chastity. The standard
amount given now is P 30,000.00, with or without 5. Inducing a minor to abandon his home (Art.
evidence of any moral damage. But there are some 271);
cases where the court awarded only P 20,000.00.
6. Slavery (Art. 272);
An accused may be convicted of rape on the sole
testimony of the offended woman. It does not require 7. Exploitation of child labor (Art. 273);
that testimony be corroborated before a conviction may
stand. This is particularly true if the commission of the 8. Services rendered under compulsion in
rape is such that the narration of the offended woman payment of debts (Art. 274).
would lead to no other conclusion except that the rape
was committed.
Crimes against security
Illustration:
1. Abandonment of persons in danger and
Daughter accuses her own father of having raped her. abandonment of one's own victim (Art. 275);

Allegation of several accused that the woman 2. Abandoning a minor (Art. 276);
consented to their sexual intercourse with her is a
proposition which is revolting to reason that a woman 3. Abandonment of minor by person entrusted
would allow more than one man to have sexual with his custody; indifference of parents (Art.
intercourse with her in the presence of the others. 277);

It has also been ruled that rape can be committed in a 4. Exploitation of minors (Art. 278);
standing position because complete penetration is not
necessary. The slightest penetration – contact with the 5. Trespass to dwelling (Art. 280);
labia – will consummate the rape.
6. Other forms of trespass (Art. 281);
On the other hand, as long as there is an intent to
effect sexual cohesion, although unsuccessful, the 7. Grave threats (Art. 282);
crime becomes attempted rape. However, if that
intention is not proven, the offender can only be 8. Light threats (Art. 283);
convicted of acts of lasciviousness.
9. Other light threats (Art. 285);
The main distinction between the crime of attempted
rape and acts of lasciviousness is the intent to lie with 10. Grave coercions (Art. 286);
the offended woman.
11. Light coercions (Art. 287);
In a case where the accused jumped upon a woman
and threw her to the ground, although the accused 12. Other similar coercions (Art. 288);
raised her skirts, the accused did not make any effort to
remove her underwear. Instead, he removed his own

82
13. Formation, maintenance and prohibition of
combination of capital or labor through violence The crime of kidnapping is committed if the purpose of
or threats (Art. 289); the offender is to extort ransom either from the victim or
from any other person. But if a person is transported
14. Discovering secrets through seizure of not for ransom, the crime can be illegal detention.
correspondence (Art. 290); Usually, the offended party is brought to a place other
than his own, to detain him there.
15. Revealing secrets with abus of office (Art. 291);
When one thinks of kidnapping, it is not only that of
16. Revealing of industrial secrets (Art. 292). transporting one person from one place to another.
One also has to think of the criminal intent.

Article 267. Kidnapping and Serious Illegal Forcible abduction -- If a woman is transported from
Detention one place to another by virtue of restraining her of her
liberty, and that act is coupled with lewd designs.
Elements
Serious illegal detention – If a woman is transported
1. Offender is a private individual; just to restrain her of her liberty. There is no lewd
design or lewd intent.
2. He kidnaps or detains another, or in any other
manner deprives the latter of his liberty; Grave coercion – If a woman is carried away just to
break her will, to compel her to agree to the demand or
3. The act of detention or kidnapping must be request by the offender.
illegal;
In a decided case, a suitor, who cannot get a favorable
4. In the commission of the offense, any of the reply from a woman, invited the woman to ride with
following circumstances is present: him, purportedly to take home the woman from class.
But while the woman is in his car, he drove the woman
a. The kidnapping lasts for more than 3 to a far place and told the woman to marry him. On the
days; way, the offender had repeatedly touched the private
parts of the woman. It was held that the act of the
b. It is committed simulating public offender of touching the private parts of the woman
authority; could not be considered as lewd designs because he
was willing to marry the offended party. The Supreme
c. Any serious physical injuries are Court ruled that when it is a suitor who could possibly
inflicted upon the person kidnapped or marry the woman, merely kissing the woman or
detained or threats to kill him are made; touching her private parts to “compel” her to agree to
or the marriage, such cannot be characterized as lewd
design. It is considered merely as the “passion of a
d. The person kidnapped or detained is a lover”. But if the man is already married, you cannot
minor, female, or a public officer. consider that as legitimate but immoral and definitely
amounts to lewd design.

If there is any crime under Title IX which has no If a woman is carried against her will but without lewd
corresponding provision with crimes under Title II, then, design on the part of the offender, the crime is grave
the offender may be a public officer or a private person. coercion.
If there is a corresponding crime under Title II, the
offender under Title IX for such similar crime is a
private person. Illustration:

When a public officer conspires with a private person in Tom Cruz invited Nicole Chizmacks for a snack. They
the commission of any of the crimes under Title IX, the drove along Roxas Boulevard, along the Coastal Road
crime is also one committed under this title and not and to Cavite. The woman was already crying and
under Title II. wanted to be brought home. Tom imposed the
condition that Nicole should first marry him. Nicole
Illustration: found this as, simply, a mission impossible. The crime
committed in this case is grave coercion. But if after
If a private person commits the crime of kidnapping or they drove to Cavite, the suitor placed the woman in a
serious illegal detention, even though a public officer house and would not let her out until she agrees to
conspires therein, the crime cannot be arbitrary marry him, the crime would be serious illegal detention.
detention. As far as that public officer is concerned, the
crime is also illegal detention. If the victim is a woman or a public officer, the detention
is always serious – no matter how short the period of
In the actual essence of the crime, when one says detention is.
kidnapping, this connotes the idea of transporting the
offended party from one place to another. When you Circumstances which make illegal detention serious
think illegal detention, it connotes the idea that one is
restrained of his liberty without necessarily transporting (1) When the illegal detention lasted for three days,
him from one place to another. regardless of who the offended party is;

83
 “victim”. Accordingly, the rulings in cases of People v.
(2) When the offended party is a female, even if Parulan, People v. Ging Sam, and other similar cases
the detention lasted only for minutes; where the accused were convicted for the complex
crimes of kidnapping with murder have become
(3) If the offended party is a minor or a public academic.
officer, no matter how long or how short the
detention is; In the composite crime of kidnapping with homicide, the
term “homicide” is used in the generic sense and, thus,
(4) When threats to kill are made or serious covers all forms of killing whether in the nature of
physical injuries have been inflicted; and murder or otherwise. It does not matter whether the
purpose of the kidnapping was to kill the victim or not,
(5) If it shall have been committed simulating as long as the victim was killed, or died as a
public authority. consequence of the kidnapping or detention. There is
no more separate crime of kidnapping and murder if the
Distinction between illegal detention and arbitrary victim was kidnapped not for the purpose of killing her.
detention
If the victim was raped, this brings about the composite
Illegal detention is committed by a private person who crime of kidnapping with rape. Being a composite
kidnaps, detains, or otherwise deprives another of his crime, not a complex crime, the same is regarded as a
liberty. single indivisible offense as in fact the law punishes
such acts with only a single penalty. In a way, the
Arbitrary detention is committed by a public officer who amendment depreciated the seriousness of the rape
detains a person without legal grounds. because no matter how many times the victim was
raped, there will only be one kidnapping with rape.
The penalty for kidnapping is higher than for forcible This would not be the consequence if rape were a
abduction. This is wrong because if the offender knew separate crime from kidnapping because each act of
about this, he would perform lascivious acts upon the rape would be a distinct count.
woman and be charged only for forcible abduction
instead of kidnapping or illegal detention. He thereby However for the crime to be kidnapping with rape, the
benefits from this absurdity, which arose when offender should not have taken the victim with lewd
Congress amended Article 267, increasing the penalty designs as otherwise the crime would be forcible
thereof, without amending Article 342 on forcible abduction; and if the victim was raped, the complex
abduction. crime of forcible abduction with rape would be
committed. If the taking was forcible abduction, and
Article 267 has been modified by Republic Act No. the woman was raped several times, there would only
7659 in the following respects: be one crime of forcible abduction with rape, and each
of the other rapes would constitute distinct counts of
(1) Illegal detention becomes serious when it shall rape. This was the ruling in the case of People v.
have lasted for more than three days, instead Bacalso.
of five days as originally provided;
In People v. Lactao, decided on October 29, 1993,
(2) In paragraph 4, if the person kidnapped or the Supreme Court stressed that the crime is serious
detained was a minor and the offender was illegal detention if the purpose was to deprive the
anyone of the parents, the latter has been offended party of her liberty. And if in the course of the
expressly excluded from the provision. The illegal detention, the offended party was raped, a
liability of the parent is provided for in the last separate crime of rape would be committed. This is so
paragraph of Article 271; because there is no complex crime of serious illegal
detention with rape since the illegal detention was not a
(3) A paragraph was added to Article 267, which necessary means to the commission of rape.
states:
In People v. Bernal, 131 SCRA 1, the appellants were
When the victim is killed or dies held guilty of separate crimes of serious illegal
as a consequence of the detention and of multiple rapes. With the amendment
detention or is raped, or is by Republic Act No. 7659 making rape a qualifying
subjected to torture, or circumstance in the crime of kidnapping and serious
dehumanizing acts, the illegal detention, the jurisprudence is superseded to the
maximum penalty shall be effect that the rape should be a distinct crime. Article 48
imposed. on complex crimes may not apply when serious illegal
detention and rape are committed by the same
This amendment brings about a composite offender. The offender will be charged for the
crime of kidnapping with homicide when it is the composite crime of serious illegal detention with rape
victim of the kidnapping who was killed, or dies as a single indivisible offense, regardless of the number
as a consequence of the detention and, thus, of times that the victim was raped.
only one penalty is imposed which is death.
Also, when the victim of the kidnapping and serious
illegal detention was subjected to torture and sustained
Article 48, on complex crimes, does not govern in this physical injuries, a composite crime of kidnapping with
case. But Article 48 will govern if any other person is physical injuries is committed.
killed aside, because the provision specifically refers to

84
 criminal liability if crime was slight illegal detention. If
Article 268. Slight Illegal Detention serious, it has no effect.

Elements In kidnapping for ransom, voluntary release will not

mitigate the crime. This is because, with the
1. Offender is a private individual; reimposition of the death penalty, this crime is
penalized with the extreme penalty of death.
2. He kidnaps or detains another, or in any other
manner deprives him of his liberty. What is ransom? It is the money, price or consideration
paid or demanded for redemption of a
3. The act of kidnapping or detention is illegal; captured person or persons, a payment that
releases a person from captivity.
4. The crime is committed without the attendance
of any of the circumstances enumerated in The definition of ransom under the Lindberg law of the
Article 267. 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
This felony is committed if any of the five upon the payment of the debt, such payment of the
circumstances in the commission of kidnapping or debt, which was made a condition for the release is
detention enumerated in Article 267 is not present. ransom, under this article.

The penalty is lowered if – In the case of People v. Roluna, decided March 29,
1994, witnesses saw a person being taken away with
(1) The offended party is voluntarily released hands tied behind his back and was not heard from for
within three days from the start of illegal six years. Supreme Court reversed the trial court ruling
detention; that the men accused were guilty of kidnapping with
murder. The crime is only slight illegal detention under
(2) Without attaining the purpose; Article 268, aggravated by a band, since none of the
circumstances in Article 267 has been proved beyond a
(3) Before the institution of the criminal action. reasonable doubt. The fact that the victim has been
missing for six years raises a presumption of death, but
One should know the nature of the illegal detention to from this disputable presumption of death, it should not
know whether the voluntary release of the offended be further presumed that the persons who were last
party will affect the criminal liability of the offender. seen with the absentee is responsible for his
disappearance.
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 Article 269. Unlawful Arrest
not accomplished his purposes, and the release was
made before the criminal prosecution was commenced, Elements
this would serve to mitigate the criminal liability of the
offender, provided that the kidnapping or illegal 1. Offender arrests or detains another person;
detention is not serious.
2. The purpose of the offender is to deliver him to
If the illegal detention is serious, however, even if the the proper authorities;
offender voluntarily released the offended party, and
such release was within three days from the time the 3. The arrest or detention is not authorized by law
detention began, even if the offender has not or there is no reasonable ground therefor.
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 This felony consists in making an arrest or detention
liability of the offender. without legal or reasonable ground for the purpose of
delivering the offended party to the proper authorities.
One who furnishes the place where the offended party
is being held generally acts as an accomplice. But the The offended party may also be detained but the crime
criminal liability in connection with the kidnapping and is not illegal detention because the purpose is to
serious illegal detention, as well as the slight illegal prosecute the person arrested. The detention is only
detention, is that of the principal and not of the incidental; the primary criminal intention of the offender
accomplice. is to charge the offended party for a crime he did not
actually commit.
Before, in People v. Saliente, if the offended party
subjected to serious illegal detention was voluntarily Generally, this crime is committed by incriminating
released by the accused in accordance with the innocent persons by the offender’s planting evidence to
provisions of Article 268 (3), the crime, which would justify the arrest – a complex crime results, that is,
have been serious illegal detention, became slight unlawful arrest through incriminatory machinations
illegal detention only. under Article 363.

The prevailing rule now is Asistio v. Judge, which

provides that voluntary release will only mitigate

85
If the arrest is made without a warrant and under
circumstances not allowing a warrantless arrest, the Article 272. Slavery
crime would be unlawful arrest.
Elements
If the person arrested is not delivered to the authorities,
the private individual making the arrest incurs criminal 1. Offender purchases, sells, kidnaps or detains a
liability for illegal detention under Article 267 or 268. human being;

If the offender is a public officer, the crime is arbitrary 2. The purpose of the offender is to enslave such
detention under Article 124. human being.

If the detention or arrest is for a legal ground, but the

public officer delays delivery of the person arrested to This is committed if anyone shall purchase, kidnap, or
the proper judicial authorities, then Article 125 will detain a human being for the purpose of enslaving him.
apply. The penalty is increased if the purpose of the offender
is to assign the offended party to some immoral traffic.
Note that this felony may also be committed by public
officers. 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.
Article 270. Kidnapping and Failure to Return A
Minor The crime is slavery if the offender is not engaged in
the business of prostitution. If he is, the crime is white
Elements slave trade under Article 341.

1. Offender is entrusted with the custody of a

minor person (whether over or under seven Article 273. Exploitation of Child Labor
years but less than 21 years of age);
Elements
2. He deliberately fails to restore the said minor to
his parents or guardians. 1. Offender retains a minor in his services;

2. It is against the will of the minor;

If any of the foregoing elements is absent, the
kidnapping of the minor will then fall under Article 267. 3. It is under the pretext of reimbursing himself of
a debt incurred by an ascendant, guardian or
If the accused is any of the parents, Article 267 does person entrusted with the custody of such
not apply; Articles 270 and 271 apply. minor.

If the taking is with the consent of the parents, the

crime in Article 270 is committed. Article 274. Services Rendered under Compulsion
in Payment of Debt
In People v. Generosa, it was held that deliberate
failure to return a minor under one’s custody constitutes Elements
deprivation of liberty. Kidnapping and failure to return a
minor is necessarily included in kidnapping and serious 1. Offender compel a debtor to work for him,
illegal detention of a minor under Article 267(4). either as household servant or farm laborer;

In People v. Mendoza, where a minor child was taken 2. It is against the debtor’s will;
by the accused without the knowledge and consent of
his parents, it was held that the crime is kidnapping and 3. The purpose is to require or enforce the
serious illegal detention under Article 267, not payment of a debt.
kidnapping and failure to return a minor under Article
270.
Article 275. Abandonment of Persons in Danger
and Abandonment of One’s Own Victim
Article 271. Inducing A Minor to Abandon His
Home Acts punished

Elements

1. A minor (whether over or under seven years of

age) is living in the home of his parents or 1. Failing to render assistance to any person
guardians or the person entrusted with his whom the offender finds in an uninhabited
custody; place wounded or in danger of dying when he
can render such assistance without detriment
2. Offender induces said minor to abandon such to himself, unless such omission shall
home. constitute a more serious offense.

86
 Elements

1. The place is not inhabited; Article 277. Abandonment of Minor by Person

Entrusted with His Custody; Indifference of Parents
2. Accused found there a person
wounded or in danger of dying; Acts punished

3. Accused can render assistance without 1. Delivering a minor to a public institution or other
detriment to himself; persons without the consent of the one who
entrusted such minor to the care of the offender
4. Accused fails to render assistance. or, in the absence of that one, without the
consent of the proper authorities;
2. Failing to help or render assistance to another
whom the offender has accidentally wounded Elements
or injured;
1. Offender has charge of the rearing or
3. By failing to deliver a child, under seven years education of a minor;
of age, whom the offender has found
abandoned, to the authorities or to his family, or 2. He delivers said minor to a public
by failing to take him to a safe place. institution or other persons;

3. The one who entrusted such child to

Under the first act, the offender is liable only when he the offender has not consented to such
can render such assistance without detriment to act; or if the one who entrusted such
himself, unless such omission shall constitute a more child to the offender is absent, the
serious offense. Where the person is already wounded proper authorities have not consented
and already in danger of dying, there is an obligation to to it.
render assistance only if he is found in an uninhabited
place. If the mortally wounded, dying person is found 2. Neglecting his (offender’s) children by not
in a place not uninhabited in legal contemplation, giving them the education which their station in
abandonment will not bring about this crime. An life requires and financial condition permits.
uninhabited place is determined by possibility of person
receiving assistance from another. Even if there are Elements:
many houses around, the place may still be
uninhabited if possibility of receiving assistance is 1. Offender is a parent;
remote.
2. He neglects his children by not giving
If what happened was an accident at first, there would them education;
be no liability pursuant to Article 12 (4) of the Civil Code
– damnum absque injuria. But if you abandon your 3. His station in life requires such
victim, you will be liable under Article 275. Here, the education and his financial condition
character of the place is immaterial. As long as the permits it.
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 Article 278. Exploitation of Minors
victim.
Acts punished

Article 276. Abandoning A Minor 1. Causing any boy or girl under 16 years of age
to perform any dangerous feat of balancing,
Elements physical strength or contortion, the offender
being any person;
1. Offender has the custody of a child;
2. Employing children under 16 years of age who
2. The child is under seven years of age; are not the children or descendants of the
offender in exhibitions of acrobat, gymnast,
3. He abandons such child; rope-walker, diver, or wild-animal tamer, the
offender being an acrobat, etc., or circus
4. He has no intent to kill the child when the latter manager or engaged in a similar calling;
is abandoned.
3. Employing any descendant under 12 years of
age in dangerous exhibitions enumerated in the
Circumstances qualifying the offense next preceding paragraph, the offender being
engaged in any of the said callings;
1. When the death of the minor resulted from such
abandonment; or 4. Delivering a child under 16 years of age
gratuitously to any person following any of the
2. If the life of the minor was in danger because of callings enumerated in paragraph 2, or to any
the abandonment. habitual vagrant or beggar, the offender being

87
 an ascendant, guardian, teacher or person
entrusted in any capacity with the care of such 1. Offender is a private person;
child; and
2. He enters the dwelling of another;
5. Inducing any child under 16 years of age to
abandon the home of its ascendants, 3. Such entrance is against the latter’s will.
guardians, curators or teachers to follow any
person engaged in any of the callings
mentioned in paragraph 2 or to accompany any Two forms of trespass
habitual vagrant or beggar, the offender being
any person. 1. Qualified trespass to dwelling – This may be
committed by any private person who shall
enter the dwelling of another against the latter’s
The offender is engaged in a kind of business that will. The house must be inhabited at the time
would place the life or limb of the minor in danger, even of the trespass although the occupants are out.
though working for him is not against the will of the Or offender breaks in with force and violence
minor. (Article 280).

Nature of the Business – This involves circuses which 2. Trespass to property - Offender enters the
generally attract children so they closed premises or fenced estate of another;
themselves may enjoy working there such close premises or fenced estate is
unaware of the danger to their own lives uninhabited; there is a manifest prohibition
and limbs. against entering such closed premises or
fenced estate; and offender has not secured
Age – Must be below 16 years. At this age, the minor the permission of the owner or caretaker
is still growing. thereof (Article 281).

If the employer is an ascendant, the crime is not (See also Presidential Decree No. 1227 regarding
committed, unless the minor is less than 12 years old. unlawful entry into any military base in the Philippines.)
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 Dwelling – This is the place that a person inhabits. It
years. Below that age, the crime is committed. includes the dependencies which have interior
communication with the house. It is not necessary that
But remember Republic Act No. 7610 (Special it be the permanent dwelling of the person. So, a
Protection of Children against Child Abuse, Exploitation person’s room in a hotel may be considered a dwelling.
and Discrimination Act). It applies to minors below 18 It also includes a room where one resides as a boarder.
years old, not 16 years old as in the Revised Penal
Code. As long as the employment is inimical – even If the purpose in entering the dwelling is not shown,
though there is no physical risk – and detrimental to the trespass is committed. If the purpose is shown, it may
child’s interest – against moral, intellectual, physical, be absorbed in the crime as in robbery with force upon
and mental development of the minor – the things, the trespass yielding to the more serious crime.
establishment will be closed. But if the purpose is not shown and while inside the
dwelling he was found by the occupants, one of whom
Article 278 has no application if minor is 16 years old was injured by him, the crime committed will be
and above. But the exploitation will be dealt with by trespass to dwelling and frustrated homicide, physical
Republic Act No. 7610. injuries, or if there was no injury, unjust vexation.

If the minor so employed would suffer some injuries as If the entry is made by a way not intended for entry,
a result of a violation of Article 278, Article 279 provides that is presumed to be against the will of the occupant
that there would be additional criminal liability for the (example, entry through a window). It is not necessary
resulting felony. that there be a breaking.

Illustration: “Against the will” -- This means that the entrance is,
either expressly or impliedly, prohibited or the
The owner of a circus employed a child under 16 years prohibition is presumed. Fraudulent entrance may
of age to do a balancing act on the tightrope. The constitute trespass. The prohibition to enter may be
crime committed is exploitation of minors (unless the made at any time and not necessarily at the time of the
employer is the ascendant of the minor who is not entrance.
below 12 years of age). If the child fell and suffered
physical injuries while working, the employer shall be To prove that an entry is against the will of the
liable for said physical injuries in addition to his liability occupant, it is not necessary that the entry should be
for exploitation of minors. 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
Article 280. Qualified Trespass to Dwelling the existence of enmity or strained relations between
the accused and the occupant.
Elements

88
On violence, Cuello Calon opines that violence may be of any wrong amounting to a crime and
committed not only against persons but also demanding money or imposing any other
against things. So, breaking the door or condition, even though not unlawful, and the
glass of a window or door constitutes acts of offender attained his purpose;
violence. Our Supreme Court followed this
view in People v. Tayag. Violence or 2. Making such threat without the offender
intimidation must, however, be anterior or attaining his purpose;
coetaneous with the entrance and must not
be posterior. But if the violence is employed 3. Threatening another with the infliction upon his
immediately after the entrance without the person, honor or property or that of his family of
consent of the owner of the house, trespass any wrong amounting to a crime, the threat not
is committed. If there is also violence or being subject to a condition.
intimidation, proof of prohibition to enter is
no longer necessary.
Threat is a declaration of an intention or determination
Distinction between qualified trespass to dwelling and to injure another by the commission upon his person,
violation of domicile honor or property or upon that of his family of some
wrong which may or may not amount to a crime:
Unlike qualified trespass to dwelling, violation of
domicile may be committed only by a public officer or (1) Grave threats – when the wrong threatened to
employee and the violation may consist of any of the be inflicted amounts to a crime. The case falls
three acts mentioned in Article 128 – (1) entering the under Article 282.
dwelling against the will of the owner without judicial
order; (2) searching papers or other effects found in (2) Light threats – if it does not amount to a crime.
such dwelling without the previous consent of the The case falls under Article 283.
owner thereof; and (3) refusing to leave the dwelling
when so requested by the owner thereof, after having But even if the harm intended is in the nature of a
surreptitiously entered such dwelling. crime, if made orally and in the heat of anger and after
the oral threat, the issuer of the threat did not pursue
Cases when Article 280 does not apply: the act, the crime is only other light threats under
Article 285.
(1) When the purpose of the entrance is to prevent
serious harm to himself, the occupant or third To constitute grave threats, the threats must refer to a
persons; future wrong and is committed by acts or through words
of such efficiency to inspire terror or fear upon another.
(2) When the purpose of the offender in entering is It is, therefore, characterized by moral pressure that
to render some service to humanity or justice; produces disquietude or alarm.

(3) Anyone who shall enter cafes, taverns, inns The greater perversity of the offender is manifested
and other public houses while they are open . when the threats are made demanding money or
imposing any condition, whether lawful or not, and the
Pursuant to Section 6, Rule 113 of the Rules of Court, offender shall have attained his purpose. So the law
a person who believes that a crime has been imposes upon him the penalty next lower in degree
committed against him has every right to go after the than that prescribed for the crime threatened to be
culprit and arrest him without any warrant even if in the committed. But if the purpose is not attained, the
process he enters the house of another against the penalty lower by two degrees is imposed. The
latter’s will. maximum period of the penalty is imposed if the threats
are made in writing or through a middleman as they
Article 281. Other forms of trespass manifest evident premeditation.

Elements Distinction between threat and coercion:

1. Offender enters the closed premises or the The essence of coercion is violence or intimidation.
fenced estate of another; There is no condition involved; hence, there is no
futurity in the harm or wrong done.
2. The entrance is made while either of them is
uninhabited; In threat, the wrong or harm done is future and
conditional. In coercion, it is direct and personal.
3. The prohibition to enter is manifest;
Distinction between threat and robbery:
4. The trespasser has not secured the permission
of the owner or the caretaker thereof. (1) As to intimidation – In robbery, the intimidation
is actual and immediate; in threat, the
Article 282. Grave Threats intimidation is future and conditional.

Acts punished: (2) As to nature of intimidation – In robbery, the

intimidation is personal; in threats, it may be
1. Threatening another with the infliction upon his through an intermediary.
person, honor or property or that of this family

89
(3) As to subject matter – Robbery refers to 2. Orally threatening another, in the heat of anger,
personal property; threat may refer to the with some harm constituting a crime, without
person, honor or property. persisting in the idea involved in his threat;

(4) As to intent to gain – In robbery, there is intent 3. Orally threatening to do another any harm not
to gain; in threats, intent to gain is not an constituting a felony.
essential element.

(5) In robbery, the robber makes the danger Article 286. Grave Coercions
involved in his threats directly imminent to the
victim and the obtainment of his gain Acts punished
immediate, thereby also taking rights to his
person by the opposition or resistance which 1. Preventing another, by means of violence,
the victim might offer; in threat, the danger to threats or intimidation, from doing something
the victim is not instantly imminent nor the gain not prohibited by law;
of the culprit immediate.
2. Compelling another, by means of violence,
threats or intimidation, to do something against
Article 283. Light Threats his will, whether it be right or wrong.

Elements Elements

1. Offender makes a threat to commit a wrong; 1. A person prevented another from doing
something not prohibited by law, or that he
2. The wrong does not constitute a crime; compelled him to do something against his will;
be it right or wrong;
3. There is a demand for money or that other
condition is imposed, even though not unlawful; 2. The prevention or compulsion be effected by
violence, threats or intimidation; and
4. Offender has attained his purpose or, that he
has not attained his purpose. 3. The person that restrained the will and liberty of
another had not the authority of law or the right
to do so, or in other words, that the restraint
In order to convict a person of the crime of light threats, shall not be made under authority of law or in
the harm threatened must not be in the nature of crime the exercise of any lawful right.
and there is a demand for money or any other condition
is imposed, even though lawful.
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
Question & Answer
liable for grave coercion.

Blackmailing constitutes what crime? If a person prohibits another to do an act because the
act is a crime, even though some sort of violence or
It is a crime of light threat under Article 283 if intimidation is employed, it would not give rise to grave
there is no threat to publish any libelous or slanderous coercion. It may only give rise to threat or physical
matter against the offended party. If there is such a injuries, if some injuries are inflicted. However, in case
threat to make a slanderous or libelous publication of grave coercion where the offended party is being
against the offended party, the crime will be one of compelled to do something against his will, whether it
libel, which is penalized under Article 356. For be wrong or not, the crime of grave coercion is
example, a person threatens to expose the affairs of committed if violence or intimidation is employed in
married man if the latter does not give him money. order to compel him to do the act. No person shall take
There is intimidation done under a demand. the law into his own hands.

The law imposes the penalty of bond for good behavior Illustration:
only in case of grave and light threats. If the offender
can not post the bond, he will be banished by way of Compelling the debtor to deliver some of his properties
destierro to prevent him from carrying out his threat. 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.
Article 285. Other Light Threats
The violence employed in grave coercion must be
Acts punished immediate, actual, or imminent. In the absence of
actual or imminent force or violence, coercion is not
1. Threatening another with a weapon, or by committed. The essence of coercion is an attack on
drawing such weapon in a quarrel, unless it be individual liberty.
in lawful self-defense;

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The physical violence is exerted to (1) prevent a In unjust vexation, any act committed without violence,
person from doing something he wants to do; or (2) but which unjustifiably annoys or vexes an innocent
compel him to do something he does not want to do. person amounts to light coercion.

Illustration: As a punishable act, unjust vexation should include any

human conduct which, although not productive of some
If a man compels another to show the contents of the physical or material harm would, however, unjustifiably
latter’s pockets, and takes the wallet, this is robbery annoy or vex an innocent person.
and not grave coercion. The intimidation is a means of
committing robbery with violence or intimidation of It is distinguished from grave coercion under the first
persons. Violence is inherent in the crime of robbery paragraph by the absence of violence.
with violence or intimidation upon persons and in
usurpation of real properties because it is the means of Illustration:
committing the crime.
Persons stoning someone else’s house. So long as
Exception to the rule that physical violence must be stoning is not serious and it is intended to annoy, it is
exerted: where intimidation is so serious that it is not a unjust vexation. It disturbs the peace of mind.
threat anymore – it approximates violence.
The main purpose of the statute penalizing coercion
In Lee v. CA, 201 SCAR 405, it was held that neither and unjust vexation is precisely to enforce the principle
the crime of threats nor coercion is committed that no person may take the law into his hands and that
although the accused, a branch manager of a our government is one of laws, not of men. The
bank made the complainant sign a withdrawal essence of the crimes is the attack on individual liberty.
slip for the amount needed to pay the spurious
dollar check she had encashed, and also made
her execute an affidavit regarding the return of Article 288. Other Similar Coercions
the amount against her better sense and
judgment. According to the court, the Acts punished:
complainant may have acted reluctantly and
with hesitation, but still, it was voluntary. It is 1. Forcing or compelling, directly or indirectly, or
different when a complainant refuses knowingly permitting the forcing or compelling
absolutely to act such an extent that she of the laborer or employee of the offender to
becomes a mere automaton and acts purchase merchandise of commodities of any
mechanically only, not of her own will. In this kind from him;
situation, the complainant ceases to exits as an
independent personality and the person who Elements:
employs force or intimidation is, in the eyes of
the law, the one acting; while the hand of the 1. Offender is any person, agent or officer
complainant sign, the will that moves it is the of any association or corporation;
hand of the offender.
2. He or such firm or corporation has
employed laborers or employees;
Article 287. Light Coercions
3. He forces or compels, directly or
Elements indirectly, or knowingly permits to be
forced or compelled, any of his or its
1. Offender must be a creditor; laborers or employees to purchase
merchandise or commodities of any
2. He seizes anything belonging to his debtor: kind from him or from said firm or
corporation.
3. The seizure of the thing be accomplished by
means of violence or a display of material force 2. Paying the wages due his laborer or employee
producing intimidation; by means of tokens or object other than the
legal tender currency of the Philippines, unless
4. The purpose of the offender is to apply the expressly requested by such laborer or
same to the payment of the debt. employee.

Elements:
The first paragraph deals with light coercions wherein
violence is employed by the offender who is a creditor 1. Offender pays the wages due a laborer
in seizing anything belonging to his debtor for the or employee employed by him by
purpose of applying the same to the payment of the means of tokens or object;
debt.
1. Those tokens or objects are other than the
In the other light coercions or unjust vexation embraced legal tender currency of the Philippines;
in the second paragraph, violence is absent.
3. Such employee or laborer does not
expressly request that he be paid by
means of tokens or objects.

91
 If, on the other hand, the purpose was not to defraud,
but only to cause damage to another’s, it would merit
Article 289. Formation, Maintenance, and the qualification of damage to property;
Prohibition of Combination of Capital or Labor
through Violence or Threats If the intention was merely to cause vexation preventing
another to do something which the law does not
Elements prohibit or compel him to execute what he does not
want, the act should be considered as unjust vexation.
1. Offender employs violence or threats, in such a
degree as to compel or force the laborers or Revelation of secrets discovered not an element of the
employers in the free and legal exercise of their crime but only increases the penalty.
industry or work;

2. The purpose is to organize, maintain or prevent Article 291. Revealing Secrets with Abuse of Office
coalitions of capital or labor, strike of laborers
or lockout of employers. Elements

1. Offender is a manager, employee or servant;

Article 290. Discovering Secrets through Seizure of
Correspondence 2. He learns the secrets of his principal or master
in such capacity;
Elements
3. He reveals such secrets.
1. Offender is a private individual or even a public
officer not in the exercise of his official function;
An employee, manager, or servant who came to know
2. He seizes the papers or letters of another; of the secret of his master or principal in such capacity
and reveals the same shall also be liable regardless of
3. The purpose is to discover the secrets of such whether or not the principal or master suffered
another person; damages.

4. Offender is informed of the contents of the The essence of this crime is that the offender learned
papers or letters seized. 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
This is a crime against the security of one’s papers and personal to the latter.
effects. The purpose must be to discover its effects.
The act violates the privacy of communication. 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
According to Ortega, it is not necessary that the a right to the personal privacy of another.
offender should actually discover the contents of the
letter. Reyes, citing People v. Singh, CA, 40 OG,
Suppl. 5, 35, believes otherwise. Article 292. Revelation of Industrial Secrets

Elements
The last paragraph of Article 290 expressly makes the
provision of the first and second paragraph thereof 1. Offender is a person in charge, employee or
inapplicable to parents, guardians, or persons workman of a manufacturing or industrial
entrusted with the custody of minors placed under their establishment;
care or custody, and to the spouses with respect to the
papers or letters of either of them. The teachers or 2. The manufacturing or industrial establishment
other persons entrusted with the care and education of has a secret of the industry which the offender
minors are included in the exceptions. has learned;

In a case decided by the Supreme Court, a spouse who 3. Offender reveals such secrets;
rummaged and found love letters of husband to
mistress does not commit this crime, but the letters are 4. Prejudice is caused to the owner.
inadmissible in evidence because of unreasonable
search and seizure. The ruling held that the wife
should have applied for a search warrant. A business secret must not be known to other business
entities or persons. It is a matter to be discovered,
Distinction from estafa, damage to property, and unjust known and used by and must belong to one person or
vexation: entity exclusively. One who merely copies their
machines from those already existing and functioning
If the act had been executed with intent of gain, it would cannot claim to have a business secret, much less, a
be estafa; discovery within the contemplation of Article 292.

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TITLE X. CRIMES AGAINST PROPERTY 27. Special case of malicious mischief (Art. 328);

Crimes against property 28. Damage and obstruction to means of

communication (Art. 330);
1. Robbery with violence against or intimidation of
persons (Art. 294); 29. Destroying or damaging statues, public
monuments or paintings (Art. 331).
2. Attempted and frustrated robbery committed
under certain circumstances (Art. 297);
Article 293. Who Are Guilty of Robbery
3. Execution of deeds by means of violence or
intimidation (Art. 298); Robbery – This is the taking or personal property
belonging to another, with intent to gain, by means of
4. Robbery in an inhabited house or public violence against, or intimidation of any person, or using
building or edifice devoted to worship (Art. force upon anything.
299);
Elements of robbery in general
5. Robbery in an inhabited place or in a private
building (Art. 302); 1. There is personal property belonging to
another;
6. Possession of picklocks or similar tools (Art.
304); 2. There is unlawful taking of that property;

7. Brigandage (Art. 306); 3. The taking must be with intent to gain; and

8. Aiding and abetting a band of brigands (Art. 4. There is violence against or intimidation of any
307); person, or force upon anything.

9. Theft (Art. 308);

Article 294. Robbery with Violence against or
10. Qualified theft (Art. 310); Intimidation of Persons

11. Theft of the property of the National Library and Acts punished
National Museum (Art. 311);
1. When by reason or on occasion of the robbery
12. Occupation of real property or usurpation of (taking of personal property belonging to
real rights in property (Art. 312); another with intent to gain), the crime of
homicide is committed;
13. Altering boundaries or landmarks (Art. 313);
2. When the robbery is accompanied by rape or
14. Fraudulent insolvency (Art. 314); intentional mutilation or arson;

15. Swindling (Art. 315); 3. When by reason of on occasion of such

robbery, any of the physical injuries resulting in
16. Other forms of swindling (Art. 316); insanity, imbecility, impotency or blindness is
inflicted;
17. Swindling a minor (Art. 317);
4. When by reason or on occasion of robbery, any
18. Other deceits (Art. 318); of the physical injuries resulting in the loss of
the use of speech or the power to hear or to
19. Removal, sale or pledge of mortgaged property smell, or the loss of an eye, a hand, a foot, an
(Art. 319); arm, or a leg or the loss of the use of any such
member or incapacity for the work in which the
20. Destructive arson (Art. 320); injured person is theretofore habitually engaged
is inflicted;
21. Other forms of arson (Art. 321);
5. If the violence or intimidation employed in the
22. Arson of property of small value (Art. 323); commission of the robbery is carried to a
degree unnecessary for the commission of the
23. Crimes involving destruction (Art. 324); crime;

24. Burning one’s own property as means to 6. When in the course of its execution, the
commit arson (Art. 325); offender shall have inflicted upon any person
not responsible for the commission of the
25. Setting fire to property exclusively owned by robbery any of the physical injuries in
the offender (Art. 326); consequence of which the person injured
becomes deformed or loses any other member
26. Malicious mischief (Art. 327); of his body or loses the sue thereof or becomes
ill or incapacitated for the performance of the

93
 work in which he is habitually engaged for more short, there is no crime of robbery with parricide,
than 90 days or the person injured becomes ill robbery with murder, robbery with infanticide – any and
or incapacitated for labor for more than 30 all forms of killing is referred to as homicide.
days;
Illustration:
7. If the violence employed by the offender does
not cause any of the serious physical injuries The robbers enter the house. In entering through the
defined in Article 263, or if the offender window, one of the robbers stepped on a child less
employs intimidation only. 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
Violence or intimidation upon persons may result in used in the generic sense. It refers to any kind of
death or mutilation or rape or serious physical injuries. death.

If death results or even accompanies a robbery, the Although it is a crime against property and treachery is
crime will be robbery with homicide provided that the an aggravating circumstance that applies only to crimes
robbery is consummated. against persons, if the killing in a robbery is committed
with treachery, the treachery will be considered a
This is a crime against property, and therefore, you generic aggravating circumstance because of the
contend not with the killing but with the robbery. homicide.

As long as there is only one (1) robbery, regardless of When two or more persons are killed during the
the persons killed, the crime will only be one (1) count robbery, such should be appreciated as an aggravating
of robbery with homicide. The fact that there are circumstance.
multiple killings committed in the course of the robbery
will be considered only as aggravating so as to call for As long as there is only one robbery, regardless of the
the imposition of the maximum penalty prescribed by persons killed, you only have one crime of robbery with
law. homicide. Note, however, that “one robbery” does not
mean there is only one taking.
If, on the occasion or by reason of the robbery,
somebody is killed, and there are also physical injuries Illustration:
inflicted by reason or on the occasion of the robbery,
don’t think that those who sustained physical injuries Robbers decided to commit robbery in a house, which
may separately prosecute the offender for physical turned out to be a boarding house. Thus, there were
injuries. Those physical injuries are only considered different boarders who were offended parties in the
aggravating circumstances in the crime of robbery with robbery. There is only one count of robbery. If there
homicide. were killings done to different boarders during the
robbery being committed in a boarder’s quarter, do not
This is not a complex crime as understood under Article consider that as separate counts of robbery with
48, but a single indivisible crime. This is a special homicide because when robbers decide to commit
complex crime because the specific penalty is provided robbery in a certain house, they are only impelled by
in the law. one criminal intent to rob and there will only be one
case of robbery. If there were homicide or death
In Napolis v. CA, it was held that when violence or committed, that would only be part of a single robbery.
intimidation and force upon things are both present in That there were several killings done would only
the robbery, the crime is complex under Article 48. aggravate the commission of the crime of robbery with
homicide.
In robbery with violence of intimidation, the taking is
complete when the offender has already the In People v. Quiñones, 183 SCRA 747, it was held
possession of the thing even if he has no opportunity to that there is no crime of robbery with multiple
dispose of it. homicides. The charge should be for robbery
with homicide only because the number of
In robbery with force upon things, the things must be persons killed is immaterial and does not
brought outside the building for consummated robbery increase the penalty prescribed in Article 294.
to be committed. 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
On robbery with homicide occasion of the robbery.

The term “homicide” is used in the generic sense, and In another case, a band of robbers entered a
the complex crime therein contemplated comprehends compound, which is actually a sugar mill. Within the
not only robbery with homicide in its restricted sense, compound, there were quarters of the laborers. They
but also with robbery with murder. So, any kind of robbed each of the quarters. The Supreme Court held
killing by reason of or on the occasion of a robbery will that there was only one count of robbery because when
bring about the crime of robbery with homicide even if they decided and determined to rob the compound,
the person killed is less than three days old, or even if they were only impelled by one criminal intent to rob.
the person killed is the mother or father of the killer, or
even if on such robbery the person killed was done by With more reason, therefore, if in a robbery, the
treachery or any of the qualifying circumstances. In offender took away property belonging to different

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owners, as long as the taking was done at one time, Remember also that intent to rob must be proved. But
and in one place, impelled by the same criminal intent there must be an allegation as to the robbery not only
to gain, there would only be one count of robbery. as to the intention to rob.

In robbery with homicide as a single indivisible offense, If the motive is to kill and the taking is committed
it is immaterial who gets killed. Even though the killing thereafter, the crimes committed are homicide and
may have resulted from negligence, you will still theft. If the primordial intent of the offender is to kill and
designate the crime as robbery with homicide. not to rob but after the killing of the victims a robbery
was committed, then there are will be two separate
Illustration: crimes.

On the occasion of a robbery, one of the offenders Illustration:

placed his firearm on the table. While they were
ransacking the place, one of the robbers bumped the If a person had an enemy and killed him and after
table. As a result, the firearm fell on the floor and killing him, saw that he had a beautiful ring and took
discharged. One of the robbers was the one killed. this, the crime would be not robbery with homicide
Even though the placing of the firearm on the table because the primary criminal intent is to kill. So, there
where there is no safety precaution taken may be will be two crimes: one for the killing and one for the
considered as one of negligence or imprudence, you do taking of the property after the victim was killed. Now
not separate the homicide as one of the product of this would bring about the crime of theft and it could not
criminal negligence. It will still be robbery with be robbery anymore because the person is already
homicide, whether the person killed is connected with dead.
the robbery or not. He need not also be in the place of
the robbery. For robbery with homicide to exist, homicide must be
committed by reason or on the occasion of the robbery,
In one case, in the course of the struggle in a house that is, the homicide must be committed “in the course
where the robbery was being committed, the owner of or because of the robbery.” Robbery and homicide are
the place tried to wrest the arm of the robber. A person separate offenses when the homicide is not committed
several meters away was the one who got killed. The “on the occasion” or “by reason” of the robbery.
crime was held to be robbery with homicide.
Where the victims were killed, not for the purpose of
Note that the person killed need not be one who is committing robbery, and the idea of taking the
identified with the owner of the place where the robbery money and other personal property of the
is committed or one who is a stranger to the robbers. It victims was conceived by the culprits only after
is enough that the homicide was committed by reason the killing, it was held in People v. Domingo,
of the robbery or on the occasion thereof. 184 SCRA 409, that the culprits committed two
separate crimes of homicide or murder
Illustration: (qualified by abuse of superior strength) and
theft.
There are two robbers who broke into a house and
carried away some valuables. After they left such The victims were killed first then their money was taken
house these two robbers decided to cut or divide the the money from their dead bodies. This is
loot already so that they can go of them. So while they robbery with homicide. It is important here that
are dividing the loot the other robber noticed that the the intent to commit robbery must precede the
one doing the division is trying to cheat him and so he taking of human life in robbery with homicide.
immediately boxed him. Now this robber who was The offender must have the intent to take
boxed then pulled out his gun and fired at the other one personal property before the killing.
killing the latter. Would that bring about the crime of
robbery with homicide? Yes. Even if the robbery was It must be conclusively shown that the homicide was
already consummated, the killing was still by reason of committed for the purpose of robbing the
the robbery because they quarreled in dividing the loot victim. In People v. Hernandez, appellants had
that is the subject of the robbery. not thought of robbery prior to the killing. The
thought of taking the victim’s wristwatch was
In People v. Domingo, 184 SCRA 409, on the conceived only after the killing and throwing of
occasion of the robbery, the storeowner, a the victim in the canal. Appellants were
septuagenarian, suffered a stroke due to the convicted of two separate crimes of homicide
extreme fear which directly caused his death and theft as there is absent direct relation and
when the robbers pointed their guns at him. It intimate connection between the robbery and
was held that the crime committed was robbery the killing.
with homicide. It is immaterial that death
supervened as a mere accident as long as the
homicide was produced by reason or on the On robbery with rape
occasion of the robbery, because it is only the
result which matters, without reference to the This is another form of violence or intimidation upon
circumstances or causes or persons person. The rape accompanies the robbery. In this
intervening in the commission of the crime case where rape and not homicide is committed, there
which must be considered. 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

95
separate, that is, one for robbery and one for the crime becomes merely robbery. But if the less serious
attempted rape. physical injuries were committed after the robbery was
already consummated, there would be a separate
The rape committed on the occasion of the robbery is charge for the less serious physical injuries. It will only
not considered a private crime because the crime is be absorbed in the robbery if it was inflicted in the
robbery, which is a crime against property. So, even course of the execution of the robbery. The same is
though the robber may have married the woman raped, true in the case of slight physical injuries.
the crime remains robbery with rape. The rape is not
erased. This is because the crime is against property Illustration:
which is a single indivisible offense.
After the robbery had been committed and the robbers
If the woman, who was raped on the occasion of the were already fleeing from the house where the robbery
robbery, pardoned the rapist who is one of the robbers, was committed, the owner of the house chased them
that would not erase the crime of rape. The offender and the robbers fought back. If only less serious
would still be prosecuted for the crime of robbery with physical injuries were inflicted, there will be separate
rape, as long as the rape is consummated. crimes: one for robbery and one for less serious
physical injuries.
If the rape is attempted, since it will be a separate
charge and the offended woman pardoned the But if after the robbery was committed and the robbers
offender, that would bring about a bar to the were already fleeing from the house where the robbery
prosecution of the attempted rape. If the offender was committed, the owner or members of the family of
married the offended woman, that would extinguish the the owner chased them, and they fought back and
criminal liability because the rape is the subject of a somebody was killed, the crime would still be robbery
separate prosecution. with homicide. But if serious physical injuries were
inflicted and the serious physical injuries rendered the
The intention must be to commit robbery and even if victim impotent or insane or the victim lost the use of
the rape is committed before the robbery, robbery with any of his senses or lost a part of his body, the crime
rape is committed. But if the accused tried to rape the would still be robbery with serious physical injuries.
offended party and because of resistance, he failed to The physical injuries (serious) should not be separated
consummate the act, and then he snatched the vanity regardless of whether they retorted in the course of the
case from her hands when she ran away, two crimes commission of the robbery or even after the robbery
are committed: attempted rape and theft. was consummated.

There is no complex crime under Article 48 because a In Article 299, it is only when the physical injuries
single act is not committed and attempted rape is not a resulted in the deformity or incapacitated the offended
means necessary to commit theft and vice-versa. party from labor for more than 30 days that the law
requires such physical injuries to have been inflicted in
The Revised Penal Code does not differentiate whether the course of the execution of the robbery, and only
rape was committed before, during or after the robbery. upon persons who are not responsible in the
It is enough that the robbery accompanied the rape. commission of the robbery.
Robbery must not be a mere accident or afterthought.
But if the physical injuries inflicted are those falling
In People v. Flores, 195 SCRA 295, although the under subdivision 1 and 2 of Article 263, even though
offenders plan was to get the victim’s money, rape her the physical injuries were inflicted upon one of the
and kill her, but in the actual execution of the crime, the robbers themselves, and even though it had been
thoughts of depriving the victim of her valuables was inflicted after the robbery was already consummated,
relegated to the background and the offender’s prurient the crime will still be robbery with serious physical
desires surfaced. They persisted in satisfying their lust. injuries. There will only be one count of accusation.
They would have forgotten about their intent to rob if
not for the accidental touching of the victim’s ring and Illustration:
wristwatch. The taking of the victim’s valuables turned
out to be an afterthought. It was held that two distinct After the robbers fled from the place where the robbery
crimes were committed: rape with homicide and theft. was committed, they decided to divide the spoils and in
the course of the division of the spoils or the loot, they
In People v. Dinola, 183 SCRA 493, it was held that if quarreled. They shot it out and one of the robbers was
the original criminal design of the accused was to killed. The crime is still robbery with homicide even
commit rape and after committing the rape, the though one of the robbers was the one killed by one of
accused committed robbery because the opportunity them. If they quarreled and serious physical injuries
presented itself, two distinct crimes – rape and robbery rendered one of the robbers impotent, blind in both
were committed – not robbery with rape. In the latter, eyes, or got insane, or he lost the use of any of his
the criminal intent to gain must precede the intent to senses, lost the use of any part of his body, the crime
rape. will still be robbery with serious physical injuries.

If the robbers quarreled over the loot and one of the

On robbery with physical injuries robbers hacked the other robber causing a deformity in
his face, the crime will only be robbery and a separate
To be considered as such, the physical injuries must charge for the serious physical injuries because when it
always be serious. If the physical injuries are only less is a deformity that is caused, the law requires that the
serious or slight, they are absorbed in the robbery. The deformity must have been inflicted upon one who is not

96
a participant in the robbery. Moreover, the physical The composite crime would only be committed if the
injuries which gave rise to the deformity or which primordial intent of the offender is to commit robber and
incapacitated the offended party from labor for more there is no killing, rape, or intentional mutilation
than 30 days, must have been inflicted in the course of committed by the offender during the robbery.
the execution of the robbery or while the robbery was Otherwise, the crime would be robbery with homicide,
taking place. or robbery with rape, or robbery with intentional
mutilation, in that order, and the arson would only be an
If it was inflicted when the thieves/robbers are already aggravating circumstance. It is essential that robbery
dividing the spoils, it cannot be considered as inflicted precedes the arson, as in the case of rape and
in the course of execution of the robbery and hence, it intentional mutilation, because the amendment
will not give rise to the crime of robbery with serious included arson among the rape and intentional
physical injuries. You only have one count of robbery mutilation which have accompanied the robbery.
and another count for the serious physical injuries
inflicted. Moreover, it should be noted that arson has been made
a component only of robbery with violence against or
If, during or on the occasion or by reason of the intimidation of persons in said Article 294, but not of
robbery, a killing, rape or serious physical injuries took robbery by the use of force upon things in Articles 299
place, there will only be one crime of robbery with and 302.
homicide because all of these – killing, rape, serious
physical injuries -- are contemplated by law as the So, if the robbery was by the use of force upon things
violence or intimidation which characterizes the taking and therewith arson was committed, two distinct crimes
as on of robbery. You charge the offenders of robbery are committed.
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 Article 295. Robbery with Physical Injuries,
for the imposition of the penalty in the maximum period. Committed in An Uninhabited Place and by A Band

If on the occasion of the robbery with homicide, robbery Robbery with violence against or intimidation of person
with force upon things was also committed, you will not qualified is qualified if it is committed
have only one robbery but you will have a complex
crime of robbery with homicide and robbery with force 1. In an uninhabited place;
upon things (see Napolis v. CA). This is because
robbery with violence or intimidation upon persons is a 2. By a band;
separate crime from robbery with force upon things.
3. By attacking a moving train, street car, motor
Robbery with homicide, robbery with intentional vehicle, or airship;
mutilation and robbery with rape are not qualified by
band or uninhabited place. These aggravating 4. By entering the passengers’ compartments in a
circumstances only qualify robbery with physical train, or in any manner taking the passengers
injuries under subdivision 2, 3, and 4 of Article 299. thereof by surprise in the respective
conveyances; or
When it is robbery with homicide, the band or
uninhabited place is only a generic aggravating 5. On a street, road, highway or alley, and the
circumstance. It will not qualify the crime to a higher intimidation is made with the use of firearms,
degree of penalty. the offender shall be punished by the maximum
periods of the proper penalties prescribed in
In People v. Salvilla, it was held that if in a robbery Article 294.
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, Article 296 defines a robbery by a band as follows:
the crime of serious illegal detention was a necessary when at least four armed malefactors take part in the
means to facilitate the robbery; thus, the complex commission of a robbery.
crimes of robbery with serious physical injuries and
serious illegal detention.
Requisites for liability for the acts of the other members
But if the victims were detained because of the timely of the band
arrival of the police, such that the offenders had
no choice but to detain the victims as hostages 1. He was a member of the band;
in exchange for their safe passage, the
detention is absorbed by the crime of robbery 2. He was present at the commission of a robbery
and is not a separate crime. This was the ruling by that band;
in People v. Astor.
3. The other members of the band committed an
assault;
On robbery with arson
4. He did not attempt to prevent the assault.
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.

97
Article 298. Execution of Deeds by Means of premises where the robbery was committed. If no entry
Violence or intimidation was effected, even though force may have been
employed actually in the taking of the property from
Elements within the premises, the crime will only be theft.

1. Offender has intent to defraud another; Two predicates that will give rise to the crime as
robbery:
2. Offender compels him to sign, execute, or
deliver any public instrument or document. 1. By mere entering alone, a robbery will be
committed if any personal property is taken
3. The compulsion is by means of violence or from within;
intimidation.
2. The entering will not give rise to robbery even if
something is taken inside. It is the breaking of
Article 299. Robbery in An Inhabited House or the receptacle or closet or cabinet where the
Public Building or Edifice Devoted to Worship personal property is kept that will give rise to
robbery, or the taking of a sealed, locked
Elements under subdivision (a) receptacle to be broken outside the premises.

1. Offender entered an inhabited house, public If by the mere entering, that would already qualify the
building taking of any personal property inside as robbery, it is
immaterial whether the offender stays inside the
2. The entrance was effected by any of the premises. The breaking of things inside the premises
following means: will only be important to consider if the entering by itself
will not characterize the crime as robbery with force
a. Through an opening not intended for upon things.
entrance or egress;
Modes of entering that would give rise to the crime of
b. By breaking any wall, roof or floor, or robbery with force upon things if something is taken
breaking any door or window; inside the premises: entering into an opening not
intended for entrance or egress, under Article 299 (a).
c. By using false keys, picklocks or similar
tools; or Illustration:

d. By using any fictitious name or The entry was made through a fire escape. The fire
pretending the exercise of public escape was intended for egress. The entry will not
authority. characterize the taking as one of robbery because it is
an opening intended for egress, although it may not be
3. Once inside the building, offender took intended for entrance. If the entering were done
personal property belonging to another with through the window, even if the window was not
intent to gain. broken, that would characterize the taking of personal
property inside as robbery because the window is not
an opening intended for entrance.
Elements under subdivision (b):
Illustration:
1. Offender is inside a dwelling house, public
building, or edifice devoted to religious worship, On a sari-sari store, a vehicle bumped the wall. The
regardless of the circumstances under which wall collapsed. There was a small opening there. At
he entered it; night, a man entered through that opening without
breaking the same. The crime will already be robbery if
2. Offender takes personal property belonging to he takes property from within because that is not an
another, with intent to gain, under any of the opening intended for the purpose.
following circumstances:
Even of there is a breaking of wall, roof, floor or
a. By the breaking of doors, wardrobes, window, but the offender did not enter, it would not give
chests, or any other kind of locked or rise to robbery with force upon things.
sealed furniture or receptacle; or
Breaking of the door under Article299 (b) – Originally,
b. By taking such furniture or objects the interpretation was that in order that there be
away to be broken or forced open a breaking of the door in contemplation of law,
outside the place of the robbery. there must be some damage to the door.

Before, if the door was not damaged but only the lock
"Force upon things" has a technical meaning in law. attached to the door was broken, the taking from within
Not any kind of force upon things will characterize the is only theft. But the ruling is now abandoned because
taking as one of robbery. The force upon things the door is considered useless without the lock. Even if
contemplated requires some element of trespass into it is not the door that was broken but only the lock, the
the establishment where the robbery was committed. breaking of the lock renders the door useless and it is
In other words, the offender must have entered the therefore tantamount to the breaking of the door.

98
Hence, the taking inside is considered robbery with hoarding essential commodities there. The guard
force upon things. obliged. They went inside and broke in . They loaded
some of the merchandise inside claiming that it is the
If the entering does not characterize the taking inside product of hoarding and then drove away. What crime
as one of robbery with force upon things, it is the was committed?
conduct inside that would give rise to the robbery if
there would be a breaking of sealed, locked or closed It is only theft because the premises where the
receptacles or cabinet in order to get the personal simulation of public authority was committed is not an
belongings from within such receptacles, cabinet or inhabited house, not a public building, and not a place
place where it is kept. devoted to religious worship. Where the house is a
private building or is uninhabited, even though there is
If in the course of committing the robbery within the simulation of public authority in committing the taking or
premises some interior doors are broken, the taking even if he used a fictitious name, the crime is only theft.
from inside the room where the door leads to will only
give rise to theft. The breaking of doors contemplated Note that in the crime of robbery with force upon things,
in the law refers to the main door of the house and not what should be considered is the means of entrance
the interior door. and means of taking the personal property from within.
If those means do not come within the definition under
But if it is the door of a cabinet that is broken and the the Revised Penal Code, the taking will only give rise to
valuable inside the cabinet was taken, the breaking of theft.
the cabinet door would characterize the taking as
robbery. Although that particular door is not included Those means must be employed in entering. If the
as part of the house, the cabinet keeps the contents offender had already entered when these means were
thereof safe. employed, anything taken inside, without breaking of
any sealed or closed receptacle, will not give rise to
Use of picklocks or false keys refers to the entering into robbery.
the premises – If the picklock or false key
was used not to enter the premises because Illustration:
the offender had already entered but was
used to unlock an interior door or even a A found B inside his (A’s) house. He asked B what the
receptacle where the valuable or personal latter was doping there. B claimed he is an inspector
belonging was taken, the use of false key or from the local city government to look after the
picklock will not give rise to the robbery with electrical installations. At the time B was chanced upon
force upon things because these are by A, he has already entered. So anything he took
considered by law as only a means to gain inside without breaking of any sealed or closed
entrance, and not to extract personal receptacle will not give rise to robbery because the
belongings from the place where it is being simulation of public authority was made not in order to
kept. enter but when he has already entered.

The law classifies robbery with force upon things as Article 301 defines an inhabited house, public building,
those committed in: or building dedicated to religious worship and their
dependencies, thus:
(1) an inhabited place;
Inhabited house – Any shelter, ship, or vessel
(2) public buildings; constituting the dwelling of one or more persons, even
though the inhabitants thereof shall temporarily be
(3) a place devoted to religious worship. absent therefrom when the robbery is committed.

The law also considers robbery committed not in an Public building – Includes every building owned by the
inhabited house or in a private building. government or belonging to a private person but used
or rented by the government, although temporarily
Note that the manner of committing the robbery with unoccupied by the same.
force upon things is not the same.
Dependencies of an inhabited house, public building, or
When the robbery is committed in a house which is building dedicated to religious worship – All interior
inhabited, or in a public building or in a place devoted courts, corrals, warehouses, granaries, barns,
to religious worship, the use of fictitious name or coachhouses, stables, or other departments, or
pretension to possess authority in order to gain enclosed interior entrance connected therewith and
entrance will characterize the taking inside as robbery which form part of the whole. Orchards and other lands
with force upon things. used for cultivation or production are not included, even
if closed, contiguous to the building, and having direct
connection therewith.
Question & Answer
Article 302. Robbery in An Uninhabited Place or in
Certain men pretended to be from the Price A Private Building
Control Commission and went to a warehouse owned
by a private person. They told the guard to open the Elements
warehouse purportedly to see if the private person is

99
1. Offender entered an uninhabited place or a Article 306. Who Are Brigands
building which was not a dwelling house, not a
public building, or not an edifice devoted to Elements of brigandage
religious worship;
1. There are least four armed persons;
2. Any of the following circumstances was
present: 2. They formed a band of robbers;

a. The entrance was effected through an 2. The purpose is any of the following:
opening not intended for entrance or
egress; a. To commit robbery in the highway;

b. A wall, roof, floor, or outside door or b. To kidnap persons for the purpose of
window was broken; extortion or to obtain ransom; or

c. The entrance was effected through the c. To attain by means of force and
use of false keys, picklocks or other violence any other purpose.
similar tools;

d. A door, wardrobe, chest, or any sealed Article 307. Aiding and Abetting A Band of
or closed furniture or receptacle was Brigands
broken; or
Elements
e. A closed or sealed receptacle was
removed, even if the same be broken 1. There is a band of brigands;
open elsewhere.
2. Offender knows the band to be of brigands;
3. Offender took therefrom personal property
belonging to another with intent to gain. 3. Offender does any of the following acts:

a. He in any manner aids, abets or

Under Article 303, if the robbery under Article 299 and protects such band of brigands;
302 consists in the taking of cereals, fruits, or firewood,
the penalty imposable is lower. b. He gives them information of the
movements of the police or other peace
officers of the government; or
Article 304. Possession of Picklock or Similar
Tools c. He acquires or receives the property
taken by such brigands.
Elements

1. Offender has in his possession picklocks or Distinction between brigandage under the Revised
similar tools; Penal Code and highway robbery/brigandage
under Presidential Decree No. 532:
2. Such picklock or similar tools are especially
adopted to the commission of robbery; (1) Brigandage as a crime under the Revised
Penal Code refers to the formation of a band of
3. Offender does not have lawful cause for such robbers by more than three armed persons for
possession. the purpose of committing robbery in the
highway, kidnapping for purposes of extortion
or ransom, or for any other purpose to be
Article 305 defines false keys to include the following: attained by force and violence. The mere
forming of a band, which requires at least four
1. Tools mentioned in Article 304; armed persons, if for any of the criminal
purposes stated in Article 306, gives rise to
2. Genuine keys stolen from the owner; brigandage.

3. Any key other than those intended by the (2) Highway robbery/brigandage under
owner for use in the lock forcibly opened by the Presidential Decree No. 532 is the seizure of
offender. any person for ransom, extortion or for any
other lawful purposes, or the taking away of the
property of another by means of violence
Brigandage – This is a crime committed by more than against or intimidation of persons or force upon
three armed persons who form a band of robbers for things or other unlawful means committed by
the purpose of committing robbery in the highway or any person on any Philippine highway.
kidnapping persons for the purpose of extortion or to
obtain ransom, or for any other purpose to be attained Brigandage under Presidential Decree No. 532 refers
by means of force and violence. to the actual commission of the robbery on the highway
and can be committed by one person alone. It is this

100
brigandage which deserves some attention because
not any robbery in a highway is brigandage or highway 4. Those who enter an enclosed estate or a field
robbery. A distinction should be made between where trespass is forbidden or which belongs to
highway robbery/brigandage under the decree and another and, without the consent of its owner,
ordinary robbery committed on a highway under the hunt or fish upon the same or gather fruits,
Revised Penal Code. cereals or other forest or farm products.

In People v. Puno, decided February 17, 1993, the

trial court convicted the accused of highway Elements
robbery/ brigandage under Presidential Decree
No. 532 and sentenced them to reclusion 1. There is taking of personal property;
perpetua. On appeal, the Supreme Court set
aside the judgment and found the accused 2. The property taken belongs to another;
guilty of simple robbery as punished in Article
294 (5), in relation to Article 295, and 3. The taking was done with intent to gain;
sentenced them accordingly. The Supreme
Court pointed out that the purpose of 4. The taking was done without the consent of the
brigandage “is, inter alia, indiscriminate owner;
highway robbery. And that PD 532 punishes
as highway robbery or Brigandage only acts of 5. The taking is accomplished without the use of
robbery perpetrated by outlaws indiscriminately violence against or intimidation of persons of
against any person or persons on a Philippine force upon things.
highway as defined therein, not acts committed
against a predetermined or particular victim”. A
single act of robbery against a particular person Fencing under Presidential Decree No. 1612 is a
chosen by the offender as his specific victim, distinct crime from theft and robbery. If the participant
even if committed on a highway, is not highway who profited is being prosecuted with person who
robbery or brigandage. robbed, the person is prosecuted as an accessory. If
he is being prosecuted separately, the person who
In US v. Feliciano, 3 Phil. 422, it was pointed out that partook of the proceeds is liable for fencing.
highway robbery or brigandage is more than ordinary
robbery committed on a highway. The purpose of In People v. Judge de Guzman, it was held that
brigandage is indiscriminate robbery in highways. If the fencing is not a continuing offense. Jurisdiction is with
purpose is only a particular robbery, the crime is only the court of the place where the personal property
robbery or robbery in band, if there are at least four subject of the robbery or theft was possessed, bought,
armed participants. kept, or dealt with. The place where the theft or
robbery was committed was inconsequential.
Presidential Decree No. 532 introduced amendments to
Article 306 and 307 by increasing the penalties. It does Since Section 5 of Presidential Decree No. 1612
not require at least four armed persons forming a band expressly provides that mere possession of
of robbers. It does not create a presumption that the anything of value which has been subject of
offender is a brigand when he an unlicensed firearm is theft or robbery shall be prima facie evidence of
used unlike the Revised Penal Code. But the essence fencing, it follows that a possessor of stolen
of brigandage under the Revised Penal Code is the goods is presumed to have knowledge that the
same as that in the Presidential Decree, that is, crime goods found in his possession after the fact of
of depredation wherein the unlawful acts are directed theft or robbery has been established. The
not only against specific, intended or preconceived presumption does not offend the presumption
victims, but against any and all prospective victims of innocence in the fundamental law. This was
anywhere on the highway and whoever they may the ruling in Pamintuan v. People, decided on
potentially be. July 11, 1994.

Burden of proof is upon fence to overcome

Article 308. Who Are Liable for Theft presumption; if explanation insufficient or
unsatisfactory, court will convict. This is a malum
Persons liable prohibitum so intent is not material. But if prosecution
is under the Revised Penal Code, as an accessory, the
1. Those who with intent to gain, but without criminal intent is controlling.
violence against or intimidation of persons nor
force upon things, take personal property of When there is notice to person buying, there may be
another without the latter’s consent; fencing such as when the price is way below ordinary
prices; this may serve as notice. He may be liable for
2. Those who having found lost property, fails to fencing even if he paid the price because of the
deliver the same to the local authorities or to its presumption.
owner;
Cattle Rustling and Qualified Theft of Large Cattle –
3. Those who, after having maliciously damaged The crime of cattle-rustling is defined and punished
the property of another, remove or make use of under Presidential Decree No. 533, the Anti-Cattle
the fruits or objects of the damage caused by Rustling law of 1974, as the taking by any means,
them; method or scheme, of any large cattle, with or without

101
intent to gain and whether committed with or without 6. If property is taken on the occasion of fire,
violence against or intimidation of person or force upon earthquake, typhoon, volcanic eruption, or any
things, so long as the taking is without the consent of other calamity, vehicular accident, or civil
the owner/breed thereof. The crime includes the killing disturbance.
or taking the meat or hide of large cattle without the
consent of the owner.
Article 311. Theft of the Property of the National
Since the intent to gain is not essential, the killing or Library or National Museum
destruction of large cattle, even without taking any part
thereof, is not a crime of malicious mischief but cattle- If the property stolen is any property of the National
rustling. Library or of the National Museum

The Presidential Decree, however, does not supersede Article 312. Occupation of Real Property or
the crime of qualified theft of large cattle under Article Usurpation of Real Rights in Property
310 of the Revised Penal Code, but merely modified
the penalties provided for theft of large cattle and, to Acts punished:
that extent, amended Articles 309 and 310. Note that
the overt act that gives rise to the crime of cattle- 1. Taking possession of any real property
rustling is the taking or killing of large cattle. Where the belonging to another by means of violence
large cattle was not taken, but received by the offender against or intimidation of persons;
from the owner/overseer thereof, the crime is not cattle-
rustling; it is qualified theft of large cattle. 2. Usurping any real rights in property belonging
to another by means of violence against or
Where the large cattle was received by the offender intimidation of persons.
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 Elements
and juridical possession thereof was yielded to him who
misappropriated the large cattle, the crime would be 1. Offender takes possession of any real property
estafa under Article 315 (1b). or usurps any real rights in property;

Presidential Decree No. 533 is not a special law in the 2. The real property or real rights belong to
context of Article 10 of the Revised Penal another;
Code. It merely modified the penalties
provided for theft of large cattle under the 3. Violence against or intimidation of persons is
Revised Penal Code and amended Article 309 used by the offender in occupying real property
and 310. This is explicit from Section 10 of the or usurping real rights in property;
Presidential Decree. Consequently, the trial
court should not have convicted the accused of 4. There is intent to gain.
frustrated murder separately from cattle-
rustling, since the former should have been
absorbed by cattle-rustling as killing was a Use the degree of intimidation to determine the degree
result of or on the occasion of cattle-rustling. It of the penalty to be applied for the usurpation.
should only be an aggravating circumstance.
But because the information did not allege the Usurpation under Article 312 is committed in the same
injury, the same can no longer be appreciated; way as robbery with violence or intimidation of
the crime should, therefore be only, simple persons. The main difference is that in
cattle-rustling. (People v. Martinada, February robbery, personal property is involved; while in
13, 1991) usurpation of real rights, it is real property.
(People v. Judge Alfeche, July 23, 1992)

Article 310. Qualified Theft Usurpation of real rights and property should not be
complexed using Article 48 when violence or
Theft is qualified if intimidation is committed. There is only a single crime,
but a two-tiered penalty is prescribed to be determined
1. Committed by a domestic servant; on whether the acts of violence used is akin to that in
robbery in Article 294, grave threats or grave coercion
2. Committed with grave abuse of confidence; and an incremental penalty of fine based on the value
of the gain obtained by the offender.
3. The property stolen is a motor vehicle, mail
matter, or large cattle; Therefore, it is not correct to state that the threat
employed in usurping real property is absorbed in the
4. The property stolen consists of coconuts taken crime; otherwise, the additional penalty would be
from the premises of a plantation; meaningless.

5. The property stolen is fish taken from a The complainant must be the person upon whom
fishpond or fishery; or 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 in possession of the

102
property who was named as the offended party, the Article 315. Swindling (Estafa)
same may be quashed as it does not charge an
offense. The owner would, at most, be entitled to civil Elements in general
recourse only.
1. Accused defrauded another by abuse of
confidence or by means of deceit; and
On carnapping and theft of motor vehicle
This covers the three different ways of
The taking with intent to gain of a motor vehicle committing estafa under Article 315; thus,
belonging to another, without the latter’s consent, or by estafa is committed –
means of violence or intimidation of persons, or by
using force upon things is penalized as carnapping a. With unfaithfulness or abuse of
under Republic Act No. 6539 (An Act Preventing confidence;
and Penalizing Carnapping), as amended. The overt
act which is being punished under this law as b. By means of false pretenses or
carnapping is also the taking of a motor vehicle under fraudulents acts; or
circumstances of theft or robbery. If the motor vehicle
was not taken by the offender but was delivered by the c. Through fraudulent means.
owner or the possessor to the offender, who thereafter
misappropriated the same, the crime is either qualified (The first form under subdivision 1 is known as
theft under Article 310 of the Revised Penal Code or estafa with abuse of confidence; and the
estafa under Article 315 (b) of the Revised Penal Code. second and third forms under subdivisions 2
Qualified theft of a motor vehicle is the crime if only the and 3 cover cover estafa by means of deceit.)
material or physical possession was yielded to the
offender; otherwise, if juridical possession was also 2. Damage or prejudice capable of pecuniary
yielded, the crime is estafa. estimation is caused to the offended party or
third person.

On squatting
Elements of estafa with unfaithfulness of abuse of
According to the Urban Development and Housing confidence under Article 315 (1)
Act, the following are squatters:
Under paragraph (a)
1. Those who have the capacity or means to pay
rent or for legitimate housing but are squatting 1. Offender has an onerous obligation to deliver
anyway; something of value;

2. Also the persons who were awarded lots but 2. He alters its substance, quantity, or quality;
sold or lease them out;
3. Damage or prejudice is caused to another.
3. Intruders of lands reserved for socialized
housing, pre-empting possession by occupying Under paragraph (b)
the same.
1. Money, goods, or other personal property is
received by the offender is trust, or on
Article 313. Altering Boundaries or Landmarks commission, or for administration, or under any
other obligation involving the duty to make
Elements delivery of, or to return, the same;

1. There are boundary marks or monuments of 2. There is misappropriation or conversion of such

towns, provinces, or estates, or any other money or property by the offender, or denial on
marks intended to designate the boundaries of his part of such receipt;
the same;
3. Such misappropriation or conversion or denial
2. Offender alters said boundary marks. is to the prejudice of another; and

4. There is a demand made by the offended party

Article 314. Fraudulent Insolvency to the offender.

Elements (The fourth element is not necessary when

there is evidence of misappropriation of the
1. Offender is a debtor, that is, he has obligations goods by the defendant. [Tubb v. People, et
due and payable; al., 101 Phil. 114] ).

2. He absconds with his property;

Under Presidential Decree No. 115, the failure of the
3. There is prejudice to his creditors. entrustee to turn over the proceeds of the sale of the
goods, documents, or instruments covered by a trust
receipt, to the extent of the amount owing to the

103
entruster, or as appearing in the trust receipt; or the other party to have entered into the obligation.
failure to return said goods, documents, or instruments For example, Rose wants to purchase a
if they were not sold or disposed of in accordance with bracelet and draws a check without insufficient
the terms of the trust receipt constitute estafa. funds. The jeweler sells her the bracelet solely
because of the consideration in the check.)

Under paragraph (c) (3) It does not cover checks where the purpose of
drawing the check is to guarantee a loan as
1. The paper with the signature of the offended this is not an obligation contemplated in this
party is in blank; paragraph

2. Offended party delivered it to the offender; The check must be genuine. If the check is falsified
and is cashed with the bank or exchanged for cash, the
3. Above the signature of the offended party, a crime is estafa thru falsification of a commercial
document is written by the offender without document.
authority to do so;
The general rule is that the accused must be able to
4. The document so written creates a liability of, obtain something from the offended party by means of
or causes damage to, the offended party or any the check he issued and delivered. Exception: when
third person. the check is issued not in payment of an obligation.

It must not be promissory notes, or guaranties.

Elements of estafa by means of false pretenses or
fraudulent acts under Article 315 (2) Good faith is a defense.

Acts punished under paragraph (a) If the checks were issued by the defendant and he
received money for them, then stopped payment and
1. Using fictitious name; did not return the money, and he had an intention to
stop payment when he issued the check, there is
2. Falsely pretending to possess power, influence, estafa.
qualifications, property, credit, agency,
business or imaginary transactions; or Deceit is presumed if the drawer fails to deposit the
amount necessary to cover the check within three days
3. By means of other similar deceits. from receipt of notice of dishonor or insufficiency of
funds in the bank.

Under paragraph (b)

Batas Pambansa Blg. 22
Altering the quality, fineness, or weight of anything
pertaining to his art or business. How violated

A. 1. A person makes or draws and issues any

Under paragraph (c) check;

Pretending to have bribed any government employee, 2. The check is made or drawn and
without prejudice to the action for calumny which the issued to apply on account or for value;
offended party may deem proper to bring against the
offender. Thus, it can apply to pre-existing
obligations, too.

Under paragraph (d) 3. The person who makes or draws and

issued the check knows at the time of
1. Offender postdated a check, or issued a check issue that he does not have sufficient
in payment of an obligation; funds in or credit with the drawee bank
for the payment of such check in full
2. Such postdating or issuing a check was done upon its presentment;
when the offender had no funds in the bank, or
his funds deposited therein were not sufficient 3. The check is subsequently dishonored by
to cover the amount of the check. the drawee bank for insufficiency of
funds or credit, or would have been
dishonored for the same reason had
Note that this only applies if – not the drawer, without any valid
reason, ordered the bank to stop
(1) The obligation is not pre-existing; payment.

(2) The check is drawn to enter into an obligation;

B. 1. A person has sufficient funds in or
(Remember that it is the check that is credit with the drawee bank when he
supposed to be the sole consideration for the makes or draws and issues a check;

104
 2. He fails to keep sufficient funds or to If the drawee bank received an order of stop-payment
maintain a credit to cover the full from the drawer with no reason, it must be stated that
amount of the check if presented within the funds are insufficient to be prosecuted here.
90 days from the date appearing;
The unpaid or dishonored check with the stamped
3. The check is dishonored by the drawee information re: refusal to pay is prima facie evidence of
bank. (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
Distinction between estafa under Article 315 (2) (d) of dishonored for the reason stamped on the check.
the Revised Penal Code and violation of Batas
Pambansa Blg. 22:
Acts punished under paragraph (e)
(1) Under both Article 315 (2) (d) and Batas
Pambansa Blg. 22, there is criminal liability if 1. a. Obtaining food, refreshment, or
the check is drawn for non-pre-existing accommodation at a hotel, inn,
obligation. restaurant, boarding house, lodging
house, or apartment house;
If the check is drawn for a pre-existing
obligation, there is criminal liability only under b. Without paying therefor;
Batas Pambansa Blg. 22.
c. With intent to defraud the proprietor or
(2) Estafa under Article 315 (2) (d) is a crime manager.
against property while Batas Pambansa Blg. 22
is a crime against public interest. The 2. a. Obtaining credit at
gravamen for the former is the deceit any of the establishments;
employed, while in the latter, it is the issuance
of the check. Hence, there is no double b. Using false pretense;
jeopardy.
3. a. Abandoning or
(3) In the estafa under Article 315 (2) (d), deceit surreptitiously removing any part of his
and damage are material, while in Batas baggage in the establishment;
Pambansa Blg. 22, they are immaterial.
b. After obtaining credit, food,
(4) In estafa under Article 315 (2) (d), knowledge refreshment, accommodation;
by the drawer of insufficient funds is not
required, while in Batas Pambansa Blg. 22, c. Without paying.
knowledge by the drawer of insufficient funds
is required. Estafa through any of the following fraudulent means
under Article 315 (3)

When is there prima facie evidence of knowledge of Under paragraph (a)

insufficient funds?
1. Offender induced the offended party to sign a
There is a prima facie evidence of knowledge of document;
insufficient funds when the check was presented within
90 days from the date appearing on the check and was 2. Deceit was employed to make him sign the
dishonored. document;

Exceptions 3. Offended party personally signed the

document;
1. When the check was presented after 90 days
from date; 4. Prejudice was caused.

2. When the maker or drawer --

Under paragraph (b)
a. Pays the holder of the check the
amount due within five banking days Resorting to some fraudulent practice to insure success
after receiving notice that such check in a gambling game;
has not been paid by the drawee;

b. Makes arrangements for payment in full Under paragraph (c)

by the drawee of such check within five
banking days after notice of non- 1. Offender removed, concealed or destroyed;
payment
2. Any court record, office files, documents or any
The drawee must cause to be written or stamped in other papers;
plain language the reason for the dishonor.

105
3. With intent to defraud another. holder of the check the full amount due thereon within
five days from notice.

In Kim v. People, 193 SCRA 344, it was held that if an Under Batas Pambansa Blg. 22, a drawer must be
employee receives cash advance from his given notice of dishonor and given five banking days
employer to defray his travel expenses, his from notice within which to deposit or pay the amount
failure to return unspent amount is not estafa stated in the check to negate the presumtion that
through misappropriation or conversion drawer knew of the insufficiency. After this period, it is
because ownership of the money was conclusive that drawer knew of the insufficiency, thus
transferred to employee and no fiduciary there is no more defense to the prosecution under
relation was created in respect to such Batas Pambansa Blg. 22.
advance. The money is a loan. The employee
has no legal obligation to return the same The mere issuance of any kind of check regardless of
money, that is, the same bills and coins the intent of the parties, whether the check is intended
received. to serve merely as a guarantee or as a deposit, makes
the drawer liable under Batas Pambansa Blg. 22 if the
In Saddul Jr. v. CA, 192 SCRA 277, it was held that check bounces. As a matter of public policy, the
the act of using or disposing of another’s property as if issuance of a worthless check is a public nuisance and
it were one’s own, or of devoting it to a purpose or use must be abated.
different from that agreed upon, is a misappropriation
and conversion to the prejudice of the owner. In De Villa v. CA, decided April 18, 1991, it was held
Conversion is unauthorized assumption an exercise of that under Batas Pambansa Blg. 22, there is no
the right of ownership over goods and chattels distinction as to the kind of check issued. As long as it
belonging to another, resulting in the alteration of their is delivered within Philippine territory, the Philippine
condition or exclusion of the owner’s rights. courts have jurisdiction. Even if the check is only
presented to and dishonored in a Philippine bank,
In Allied Bank Corporation v. Secretary Ordonez, Batas Pambansa Blg. 22 applies. This is true in the
192 SCRA 246, it was held that under Section case of dollar or foreign currency checks. Where the
13 of Presidential Decree No. 115, the failure of law makes no distinction, none should be made.
an entrustee to turn over the proceeds of sale
of the goods covered by the Trust Receipt, or In People v. Nitafan, it was held that as long as
to return said goods if they are not sold, is instrument is a check under the negotiable instrument
punishable as estafa Article 315 (1) (b). 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”,
On issuance of a bouncing check “memorandum” written across the face of the check
which signifies that if the holder upon maturity of the
The issuance of check with insufficient funds may be check presents the same to the drawer, it will be paid
held liable for estafa and Batas Pambansa Blg. 22. absolutely. But there is no prohibition against drawer
Batas Pambansa Blg. 22 expressly provides that from depositing memorandum check in a bank.
prosecution under said law is without prejudice to any Whatever be the agreement of the parties in respect of
liability for violation of any provision in the Revised the issuance of a check is inconsequential to a violation
Penal Code. Double Jeopardy may not be invoked to Batas Pambansa Blg. 22 where the check bounces.
because a violation of Batas Pambansa Blg. 22 is a
malum prohibitum and is being punished as a crime But overdraft or credit arrangement may be allowed by
against the public interest for undermining the banking banks as to their preferred clients and Batas Pambansa
system of the country, while under the RevisedPenal Blg. 22 does not apply. If check bounces, it is because
Code, the crime is malum in se which requires criminal bank has been remiss in honoring agreement.
intent and damage to the payee and is a crime against
property. The check must be presented for payment within a 90-
day period. If presented for payment beyond the 90
In estafa, the check must have been issued as a day period and the drawer’s funds are insufficient to
reciprocal consideration for parting of goods (kaliwaan). cover it, there is no Batas Pambansa Blg. 22 violation.
There must be concomitance. The deceit must be prior
to or simultaneous with damage done, that is, seller Where check was issued prior to August 8, 1984, when
relied on check to part with goods. If it is issued after Circular No. 12 of the Department of the
parting with goods as in credit accommodation only, Justice took effect, and the drawer relied on the
there is no estafa. If the check is issued for a pre- then prevailing Circular No. 4 of the Ministry of
existing obligation, there is no estafa as damage had Justice to the effect that checks issued as part
already been done. The drawer is liable under Batas of an arrangement/agreement of the parties to
Pambansa Blg. 22. guarantee or secure fulfillment of an obligation
are not covered by Batas Pambansa Blg. 22,
For criminal liability to attach under Batas Pambansa no criminal liability should be incurred by the
Blg. 22, it is enough that the check was issued to "apply drawer. Circular should not be given
on account or for value" and upon its presentment it retroactive effect. (Lazaro v. CA, November
was dishonored by the drawee bank for insufficiency of 11, 1993, citing People v. Alberto, October
funds, provided that the drawer had been notified of the 28, 1993)
dishonor and inspite of such notice fails to pay the

106
Article 316. Other Forms of Swindling offender guaranteed the fulfillment of his obligation as
surety
Under paragraph 1 – By conveying, selling,
encumbering, or mortgaging any real property, Elements
pretending to be the owner of the same
1. Offender is a surety in a bond given in a
Elements criminal or civil action;

1. There is an immovable, such as a parcel of 2. He guaranteed the fulfillment of such obligation

land or a building; with his real property or properties;

2. Offender who is not the owner represents 3. He sells, mortgages, or in any manner
himself as the owner thereof; encumbers said real property;

3. Offender executes an act of ownership such as 4. Such sale, mortgage or encumbrance is without
selling, leasing, encumbering or mortgaging the express authority from the court, or made
real property; before the cancellation of his bond, or before
being relieved from the obligation contracted by
4. The act is made to the prejudice to the owner him.
or a third person.

Article 317. Swindling A Minor

Under paragraph 2 – by disposing of real property as
free from encumbrance, although such encumbrance Elements
be not recorded
1. Offender takes advantage of the inexperience
Elements or emotions or feelings of a minor;

1. The thing disposed is a real property: 2. He induces such minor to assume an obligation
or to give release or to execute a transfer of
2. Offender knew that the real property was any property right;
encumbered, whether the encumbrance is
recorded or not; 3. The consideration is some loan of money,
credit or other personal property;
3. There must be express representation by
offender that the real property is free from 4. The transaction is to the detriment of such
encumbrance; minor.

4. The act of disposing of the real property is

made to the damage of another. Article 318. Other deceits

Acts punished
Under paragraph 3 – by wrongfully taking by the owner
of his personal property from its lawful possessor 1. Defrauding or damaging another by any other
deceit not mentioned in the preceding articles;
Elements
2. Interpreting dreams, by making forecasts, by
1. Offender is the owner of personal property; telling fortunes, or by taking advantage or the
credulity of the public in any other similar
2. Said personal property is in the lawful manner, for profit or gain.
possession of another;

3. Offender wrongfully takes it from its lawful

possessor;

4. 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

Under paragraph 6 – by selling, mortgaging or

encumbering real property or properties with which the

107
 2. Destructive arson, under Article 320 of the
Revised Penal Code, as amended by Republic
Article 319. Removal, Sale or Pledge of Mortgaged Act No. 7659;
Property
3. Other cases of arson, under Section 3 of
Acts punished Presidential Decree No. 1613.

1. Knowingly removing any personal property

mortgaged under the Chattel Mortgage law to Article 327. Who Are Liable for Malicious Mischief
any province or city other than the one in which
it was located at the time of execution of the Elements
mortgage, without the written consent of the
mortgagee or his executors, administrators or 1. Offender deliberately caused damage to the
assigns; property of another;

Elements: 2. Such act does not constitute arson or other

crimes involving destruction;
1. Personal property is mortgaged under
the Chattel Mortgage Law; 3. The act of damaging another’s property was
committed merely for the sake of damaging it;
2. Offender knows that such property is
so mortgaged;
There is destruction of the property of another but there
3. Offender removes such mortgaged is no misappropriation. Otherwise, it would be theft if
personal property to any province or he gathers the effects of destruction.
city other than the one in which it was
located at the time of the execution of
the mortgage;

4. The removal is permanent;

5. There is no written consent of the

mortgagee or his executors,
administrators or assigns to such
removal.

2. Selling or pledging personal property already

pledged, or any part thereof, under the terms of
the Chattel Mortgage Law, without the 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 of the
province where such property is located.

Elements:

1. Personal property is already pledged

under the terms of the Chattel
Mortgage Law;

2. Offender, who is the mortgagor of such

property, sells or pledges the same or
any part thereof;

3. 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.

Arson

Kinds of arson

1. Arson, under Section 1 of Presidential Decree

No. 1613;

108
 Estafa should not be complexed with any other crime in
Article 328. Special Case of Malicious Mischief order for exemption to operate.

Acts punished
TITLE XI. CRIMES AGAINST CHASTITY
1. Causing damage to obstruct the performance
of public functions; Crimes against chastity

2. Using any poisonous or corrosive substance; 1. Adultery (Art. 333);

3. Spreading any infection or contagion among 2. Concubinage (Art. 334);

cattle;
3. Acts of lasciviousness (Art. 336);
4. Causing damage to the property of the National
Museum or National Library, or to any archive 4. Qualified seduction (Art. 337);
or registry, waterworks, road, promenade, or
any other thing used is common by the pubic. 5. Simple seduction (Art. 338);

6. Acts of lasciviousness with the consent of the

Article 329. Other Mischiefs offended party (Art. 339);

All other mischiefs not included in the next preceding 7. Corruption of minors (Art. 340);
article
8. White slave trade (Art. 34);

Article 330. Damage and Obstruction to Means of 9. Forcible abduction (Art. 342);
Communication
10. Consented abduction (Art. 343).
This is committed by damaging any railway, telegraph
or telephone lines.
The crimes of adultery, concubinage, seduction,
abduction and acts of lasciviousness are the so-called
Article 331. Destroying or Damaging Statues, private crimes. They cannot be prosecuted except
Public Monuments, or Paintings 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
Article 332. Persons Exempt from Criminal Liability society. For the law gives the offended party the
preference whether to sue or not to sue. But the
Crimes involved in the exemption moment the offended party has initiated the criminal
complaint, the public prosecutor will take over and
1. Theft; continue with prosecution of the offender. That is why
under Article 344, if the offended party pardons the
2. Estafa; and offender, that pardon will only be valid if it comes
before the prosecution starts. The moment the
3. Malicious mischief. prosecution starts, the crime has already become
public and it is beyond the offended party to pardon the
offender.
Persons exempted from criminal liability
Article 333. Who Are Guilty of Adultery
1. Spouse, ascendants and descendants, or
relatives by affinity in the same line; Elements

2. Widowed spouse with respect to the property 1. The woman is married;

which belonged to the deceased spouse before
the same passed into the possession of 2. She has sexual intercourse with a man not her
another husband;

3. Brothers and sisters and brothers-in-law and 3. As regards the man with whom she has sexual
sisters-in-law, if living together. intercourse, he must know her to be married.

Only the relatives enumerated incur no liability if the Adultery is a crime not only of the married woman but
crime relates to theft (not robbery), swindling, and also of the man who had intercourse with a married
malicious mischief. Third parties who participate are woman knowing her to be married. Even if the man
not exempt. The relationship between the spouses is proves later on that he does not know the woman to be
not limited to legally married couples; the provision married, at the beginning, he must still be included in
applies to live-in partners. the complaint or information. This is so because
whether he knows the woman to be married or not is a

109
matter of defense and its up to him to ventilate that in
formal investigations or a formal trial. Elements
If after preliminary investigation, the public prosecutor
is convinced that the man did not know that the woman 1. The man is married;
is married, then he could simply file the case against
the woman. 2. He is either –

The acquittal of the woman does not necessarily result a. Keeping a mistress in the conjugal
in the acquittal of her co-accused. dwelling;

In order to constitute adultery, there must be a joint b. Having sexual intercourse under
physical act. Joint criminal intent is not necessary. scandalous circumstances with a
Although the criminal intent may exist in the mind of woman who is not his wife; or
one of the parties to the physical act, there may be no
such intent in the mind of the other party. One may be c. Cohabiting with a woman who is not his
guilty of the criminal intent, the other innocent, and yet wife in any other place;
the joint physical act necessary to constitute the
adultery may be complete. So, if the man had no 3. As regards the woman, she knows that the man
knowledge that the woman was married, he would be is married.
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, With respect to concubinage the same principle
although they were tried together. applies: only the offended spouse can bring the
prosecution. This is a crime committed by the married
A husband committing concubinage may be required to man, the husband. Similarly, it includes the woman
support his wife committing adultery under the rule in who had a relationship with the married man.
pari delicto.
It has been asked why the penalty for adultery is higher
There is no frustrated adultery because of the nature of than concubinage when both crimes are infidelities to
the offense. the marital vows. The reason given for this is that
when the wife commits adultery, there is a probability
For adultery to exist, there must be a marriage although that she will bring a stranger into the family. If the
it be subsequently annulled. There is no adultery, if the husband commits concubinage, this probability does
marriage is void from the beginning. not arise because the mother of the child will always
carry the child with her. So even if the husband brings
Adultery is an instantaneous crime which is with him the child, it is clearly known that the child is a
consummated and completed at the moment of the stranger. Not in the case of a married woman who
carnal union. Each sexual intercourse constitutes a may bring a child to the family under the guise of a
crime of adultery. Adultery is not a continuing crime legitimate child. This is the reason why in the former
unlike concubinage. crime the penalty is higher than the latter.

Illustration: Unlike adultery, concubinage is a continuing crime.

Madamme X is a married woman residing in Pasay

City. He met a man, Y, at Roxas Boulevard. She Article 335. Rape
agreed to go with to Baguio City, supposedly to come
back the next day. When they were in Bulacan, they This has been repealed by Republic Act No. 8353 or
stayed in a motel, having sexual intercourse there. the Anti-Rape Law of 1997. See Article 266-A.
After that, they proceeded again and stopped at
Dagupan City, where they went to a motel and had
sexual intercourse. Article 336. Acts of Lasciviousness

There are two counts of adultery committed in this Elements

instance: one adultery in Bulacan, and another
adultery in Dagupan City. Even if it involves the same 1. Offender commits any act of lasciviousness or
man, each intercourse is a separate crime of adultery. lewdness;

2. It is done under any of the following

Article 334. Concubinage circumstances:

Acts punished a. By using force or intimidation;

1. Keeping a mistress in the conjugal dwelling; b. When the offended party is deprived or
reason of otherwise unconscious; or
2. Having sexual intercourse, under scandalous
circumstances; c. When the offended party is another
person of either sex.
3. Cohabiting with her in any other place.

110
Note that there are two kinds of acts of lasciviousness 3. Offender has sexual intercourse with
under the Revised Penal Code: (1) under Article 336, her;
and (2) under Article 339.
4. There is abuse of authority, confidence
1. Article 336. Acts of Lasciviousness or relationship on the part of the
offender.
Under this article, the offended party may be a
man or a woman. The crime committed, when 2. Seduction of a sister by her brother, or
the act performed with lewd design was descendant by her ascendant, regardless of
perpetrated under circumstances which would her age or reputation.
have brought about the crime of rape if sexual
intercourse was effected, is acts of
lasciviousness under this article. This means Person liable
that the offended party is either –
1. Those who abused their authority –
(1) under 12 years of age; or
a. Person in public authority;
(2) being over 12 years of age, the
lascivious acts were committed on him b. Guardian;
or her through violence or intimidation,
or while the offender party was c. Teacher;
deprived of reason, or otherwise
unconscious. d. Person who, in any capacity, is
entrusted with the education or custody
2. Article 339. Acts of Lasciviousness with the of the woman seduced;
Consent of the Offended Party:
2. Those who abused confidence reposed in them
Under this article, the victim is limited only to a –
woman. The circumstances under which the
lascivious acts were committed must be that of a. Priest;
qualified seduction or simple seduction, that is,
the offender took advantage of his position of b. House servant;
ascendancy over the offender woman either
because he is a person in authority, a c. Domestic;
domestic, a househelp, a priest, a teacher or a
guardian, or there was a deceitful promise of 3. Those who abused their relationship –
marriage which never would really be fulfilled.
a. Brother who seduced his sister;
See Article 339.
b. Ascendant who seduced his
Always remember that there can be no frustration of descendant.
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 This crime also involves sexual intercourse. The
performing all the acts of execution, the felony is offended woman must be over 12 but below 18 years.
necessarily produced as a consequence thereof.
The distinction between qualified seduction and simple
Intent to rape is not a necessary element of the crime seduction lies in the fact, among others, that the
of acts of lasciviousness. Otherwise, there would be no woman is a virgin in qualified seduction, while in simple
crime of attempted rape. seduction, it is not necessary that the woman be a
virgin. It is enough that she is of good repute.

Article 337. Qualified Seduction For purposes of qualified seduction, virginity does not
mean physical virginity. It means that the offended
Acts punished party has not had any experience before.

1. Seduction of a virgin over 12 years and under Although in qualified seduction, the age of the offended
18 years of age by certain persons, such as a woman is considered, if the offended party is a
person in authority, priest, teacher; and descendant or a sister of the offender – no matter how
old she is or whether she is a prostitute – the crime of
Elements qualified seduction is committed.

1. Offended party is a virgin, which is Illustration:

presumed if she is unmarried and of
good reputation; If a person goes to a sauna parlor and finds there a
descendant and despite that, had sexual intercourse
2. She is over 12 and under 18 years of with her, regardless of her reputation or age, the crime
age; of qualified seduction is committed.

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In the case of a teacher, it is not necessary that the This punishes any person who shall promote or
offended woman be his student. It is enough that she facilitate the prostitution or corruption of persons under
is enrolled in the same school. age to satisfy the lust of another.

Deceit is not necessary in qualified seduction. It is not required that the offender be the guardian or
Qualified seduction is committed even though no deceit custodian of the minor.
intervened or even when such carnal knowledge was
voluntary on the part of the virgin. This is because in It is not necessary that the minor be prostituted or
such a case, the law takes for granted the existence of corrupted as the law merely punishes the act of
the deceit as an integral element of the crime and promoting or facilitating the prostitution or corruption of
punishes it with greater severity than it does the simple said minor and that he acted in order to satisfy the lust
seduction, taking into account the abuse of confidence of another.
on the part of the agent. Abuse of confidence here
implies fraud.
Article 341. White Slave Trade

Article 338. Simple Seduction Acts punished

Elements 1. Engaging in the business of prostitution;

1. Offender party is over 12 and under 18 years of 2. Profiting by prostitution;

age;
3. Enlisting the services of women for the purpose
2. She is of good reputation, single or widow; of prostitution.

3. Offender has sexual intercourse with her;

Article 342. Forcible Abduction
4. It is committed by means of deceit.
Elements

This crime is committed if the offended woman is single 1. The person abducted is any woman, regardless
or a widow of good reputation, over 12 and under 18 or her age, civil status, or reputation;
years of age, the offender has carnal knowledge of her,
and the offender resorted to deceit to be able to 2. The abduction is against her will;
consummate the sexual intercourse with her.
3. The abduction is with lewd designs.
The offended woman must be under 18 but not less
than 12 years old; otherwise, the crime is statutory
rape. A woman is carried against her will or brought from one
place to another against her will with lewd design.
Unlike in qualified seduction, virginity is not essential in
this crime. What is required is that the woman be If the element of lewd design is present, the carrying of
unmarried and of good reputation. Simple seduction is the woman would qualify as abduction; otherwise, it
not synonymous with loss of virginity. If the woman is would amount to kidnapping. If the woman was only
married, the crime will be adultery. brought to a certain place in order to break her will and
make her agree to marry the offender, the crime is only
The failure to comply with the promise of marriage grave coercion because the criminal intent of the
constitutes the deceit mentioned in the law. offender is to force his will upon the woman and not
really to restrain the woman of her liberty.

Article 339. Acts of Lasciviousness with the If the offended woman is under 12 years old, even if
Consent of the Offender Party she consented to the abduction, the crime is forcible
abduction and not consented abduction.
Elements
Where the offended woman is below the age of
1. Offender commits acts of lasciviousness or consent, even though she had gone with the offender
lewdness; through some deceitful promises revealed upon her to
go with him and they live together as husband and wife
2. The acts are committed upon a woman who is without the benefit of marriage, the ruling is that forcible
a virgin or single or widow of good reputation, abduction is committed by the mere carrying of the
under 18 years of age but over 12 years, or a woman as long as that intent is already shown. In
sister or descendant, regardless of her other words, where the man cannot possibly give the
reputation or age; woman the benefit of an honorable life, all that man
promised are just machinations of a lewd design and,
3. Offender accomplishes the acts by abuse of therefore, the carrying of the woman is characterized
authority, confidence, relationship, or deceit. with lewd design and would bring about the crime of
abduction and not kidnapping. This is also true if the
Article 340. Corruption of Minors woman is deprived of reason and if the woman is

112
mentally retardate. Forcible abduction is committed
and not consented abduction. In the crimes involving rape, abduction, seduction, and
acts of lasciviousness, the marriage by the offender
Lewd designs may be demonstrated by the lascivious with the offended woman generally extinguishes
acts performed by the offender on her. Since this crime criminal liability, not only of the principal but also of the
does not involve sexual intercourse, if the victim is accomplice and accessory. However, the mere fact of
subjected to this, then a crime of rape is further marriage is not enough because it is already decided
committed and a complex crime of forcible abduction that if the offender marries the offended woman without
with rape is committed. any intention to perform the duties of a husband as
shown by the fact that after the marriage, he already
The taking away of the woman may be accomplished left her, the marriage would appear as having been
by means of deceit at the beginning and then by means contracted only to avoid the punishment. Even with
of violence and intimidation later. that marriage, the offended woman could still prosecute
the offender and that marriage will not have the effect
The virginity of the complaining witness is not a of extinguishing the criminal liability.
determining factor in forcible abduction.
Pardon by the offended woman of the offender is not a
In order to demonstrate the presence of the lewd manner of extinguishing criminal liability but only a bar
design, illicit criminal relations with the person abducted to the prosecution of the offender. Therefore, that
need not be shown. The intent to seduce a girl is pardon must come before the prosecution is
sufficient. commenced. While the prosecution is already
commenced or initiated, pardon by the offended
If there is a separation in fact, the taking by the woman will no longer be effective because pardon may
husband of his wife against her will constitutes grave preclude prosecution but not prevent the same.
coercion.
All these private crimes – except rape – cannot be
Distinction between forcible abduction and illegal prosecuted de officio. If any slander or written
detention: defamation is made out of any of these crimes, the
complaint of the offended party is till necessary before
When a woman is kidnapped with lewd or unchaste such case for libel or oral defamation may proceed. It
designs, the crime committed is forcible abduction. will not prosper because the court cannot acquire
jurisdiction over these crimes unless there is a
When the kidnapping is without lewd designs, the crime complaint from the offended party. The paramount
committed is illegal detention. decision of whether he or she wanted the crime
committed on him or her to be made public is his or
But where the offended party was forcibly taken to the hers alone, because the indignity or dishonor brought
house of the defendant to coerce her to marry him, it about by these crimes affects more the offended party
was held that only grave coercion was committed and than social order. The offended party may prefer to
not illegal detention. suffer the outrage in silence rather than to vindicate his
honor in public.

Article 343. Consented Abduction In the crimes of rape, abduction and seduction, if the
offended woman had given birth to the child, among the
Elements liabilities of the offender is to support the child. This
obligation to support the child may be true even if there
1. Offended party is a virgin; are several offenders. As to whether all of them will
acknowledge the child, that is a different question
2. She is over 12 and under 18 years of age; because the obligation to support here is not founded
on civil law but is the result of a criminal act or a form of
3. Offender takes her away with her consent, after punishment.
solicitation or cajolery;
It has been held that where the woman was the victim
4. The taking away is with lewd designs. 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
Where several persons participated in the forcible child. This should only be proper when there is a
abduction and these persons also raped the offended probability that the offended woman could give birth to
woman, the original ruling in the case of People v. an offspring.
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 TITLE XII. CRIMES AGAINST THE CIVIL STATUS
first rape which was complexed with the forcible OF PERSONS
abduction. This ruling is no longer the prevailing rule.
The view adopted in cases of similar nature is to the Crimes against the civil status of persons
effect that where more than one person has effected
the forcible abduction with rape, all the rapes are just 1. Simulation of births, substitution of one child for
the consummation of the lewd design which another and concealment or abandonment of a
characterizes the forcible abduction and, therefore, legitimate child (art. 347);
there should only be one forcible abduction with rape.

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2. Usurpation of civil status (Art. 348); It is attempted infanticide, as the act of the
offender is an attempt against the life of the child. See
3. Bigamy (Art. 349); US v. Capillo, et al., 30 Phil. 349.

4. Marriage contracted against provisions of law

(Art. 350); Article 349. Usurpation of Civil Status

5. Premature marriages (Art. 351); This crime is committed when a person represents
himself to be another and assumes the filiation or the
6. Performance of illegal marriage ceremony (Art. parental or conjugal rights of such another person.
352).

Thus, where a person impersonates another and

Article 347. Simulation of Births, Substitution of assumes the latter's right as the son of wealthy parents,
One Child for Another, and Concealment of the former commits a violation of this article.
Abandonment of A Legitimate Child
The term "civil status" includes one's public station, or
Acts punished the rights, duties, capacities and incapacities which
determine a person to a given class. It seems that the
1. Simulation of births; term "civil status" includes one's profession.

2. Substitution of one child for another;

Article 349. Bigamy
3. Concealing or abandoning any legitimate child
with intent to cause such child to lose its civil Elements
status.
1. Offender has been legally married;

Illustration: 2. The marriage has not been legally dissolved or,

in case his or her spouse is absent, the absent
People who have no child and who buy and adopt the spouse could not yet be presumed dead
child without going through legal adoption. according to the Civil Code;

If the child is being kidnapped and they knew that the 3. He contracts a second or subsequent marriage;
kidnappers are not the real parents of their child, then
simulation of birth is committed. If the parents are 4. The second or subsequent marriage has all the
parties to the simulation by making it appear in the birth essential requisites for validity.
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. The crime of bigamy does not fall within the category of
private crimes that can be prosecuted only at the
instance of the offended party. The offense is
committed not only against the first and second wife but
Questions & Answers
also against the state.

1. A woman who has given birth to a child Good faith is a defense in bigamy.
abandons the child in a certain place to free herself of
the obligation and duty of rearing and caring for the Failure to exercise due diligence to ascertain the
child. What crime is committed by the woman? whereabouts of the first wife is bigamy through reckless
imprudence.
The crime committed is abandoning a minor
under Article 276. The second marriage must have all the essential
requisites for validity were it not for the existence of the
2. Suppose that the purpose of the first marriage.
woman is abandoning the child is to preserve the
inheritance of her child by a former marriage, what then A judicial declaration of the nullity of a marriage, that is,
is the crime committed? that the marriage was void ab initio, is now required.

The crime would fall under the second One convicted of bigamy may also be prosecuted for
paragraph of Article 347. The purpose of the woman is concubinage as both are distinct offenses. The first is
to cause the child to lose its civil status so that it may an offense against civil status, which may be
not be able to share in the inheritance. prosecuted at the instance of the state; the second is
an offense against chastity, and may be prosecuted
3. Suppose a child, one day after his birth, only at the instance of the offended party. The test is
was taken to and left in the midst of a lonely forest, and not whether the defendant has already been tried for
he was found by a hunter who took him home. What the same act, but whether he has been put in jeopardy
crime was committed by the person who left it in the for the same offense.
forest?

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One who, although not yet married before, knowingly 2. A woman who, her marriage having been
consents to be married to one who is already married is annulled or dissolved, married before her
guilty of bigamy knowing that the latter’s marriage is delivery or before the expiration of the period of
still valid and subsisting. 301 days after the date of the legal separation.

Distinction between bigamy and illegal marriage:

The Supreme Court has already taken into account the
Bigamy is a form of illegal marriage. The offender must reason why such marriage within 301 days is made
have a valid and subsisting marriage. Despite the fact criminal, that is, because of the probability that there
that the marriage is still subsisting, he contracts a might be a confusion regarding the paternity of the child
subsequent marriage. who would be born. If this reason does not exist
because the former husband is impotent, or was shown
Illegal marriage includes also such other marriages to be sterile such that the woman has had no child with
which are performed without complying with the him, that belief of the woman that after all there could
requirements of law, or such premature marriages, or be no confusion even if she would marry within 301
such marriage which was solemnized by one who is not days may be taken as evidence of good faith and that
authorized to solemnize the same. would negate criminal intent.

For bigamy to be committed, the second marriage must

have all the attributes of a valid marriage. TITLE XIII. CRIMES AGAINST HONOR

Crimes against honor

Article 350. Illegal Marriage
1. Libel by means of writings or similar means
Elements (Art. 355);

1. Offender contracted marriage; 2. Threatening to publish and offer to prevent

such publication for a compensation (Art. 356);
2. He knew at the time that –
3. Prohibited publication of acts referred to in the
a. The requirements of the law were not course of official proceedings (Art. 357);
complied with; or
4. Slander (Art. 358);
b. The marriage was in disregard of a
legal impediment. 5. Slander by deed (Art. 359);

6. Incriminating innocent person (Art. 363);

Marriages contracted against the provisions of laws
7. Intriguing against honor (Art. 364).
1. The marriage does not constitute bigamy.

2. The marriage is contracted knowing that the Article 353. Definition of Libel
requirements of the law have not been
complied with or in disregard of legal A libel is a public and malicious imputation of a crime,
impediments. or of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstances tending to
3. One where the consent of the other was obtained cause the dishonor, discredit, or contempt of a natural
by means of violence, intimidation or fraud. or juridical person, or to blacken the memory of one
who is dead.
4. If the second marriage is void because the accused
knowingly contracted it without complying with Elements:
legal requirements as the marriage license,
although he was previously married. 1. There must be an imputation of a crime, or of a
vice or defect, real or imaginary, or any act,
5. Marriage solemnized by a minister or priest who omission, condition, status, or circumstance;
does not have the required authority to
solemnize marriages. 2. The imputation must be made publicly;

3. It must be malicious;
Article 351. Premature Marriage
4. The imputation must be directed at a natural or
Persons liable juridical person, or one who is dead;

1. A widow who is married within 301 days from 5. The imputation must tend to cause the
the date of the death of her husband, or before dishonor, discredit or contempt of the person
having delivered if she is pregnant at the time defamed.
of his death;
Distinction between malice in fact and malice in law

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Malice in fact is the malice which the law presumes counts of libel because each person libeled is distinctly
from every statement whose tenor is defamatory. It dishonored.
does not need proof. The mere fact that the utterance
or statement is defamatory negates a legal If you do not know the particular persons libeled, you
presumption of malice. cannot consider one libel as giving rise to several
counts of libel. In order that one defamatory utterance
In the crime of libel, which includes oral defamation, or imputation may be considered as having dishonored
there is no need for the prosecution to present more than one person, those persons dishonored must
evidence of malice. It is enough that the alleged be identified. Otherwise, there will only be one count of
defamatory or libelous statement be presented to the libel.
court verbatim. It is the court which will prove whether
it is defamatory or not. If the tenor of the utterance or Note that in libel, the person defamed need not be
statement is defamatory, the legal presumption of expressly identified. It is enough that he could possibly
malice arises even without proof. be identified because “innuendos may also be a basis
for prosecution for libel. As a matter of fact, even a
Malice in fact becomes necessary only if the malice in compliment which is undeserved, has been held to be
law has been rebutted. Otherwise, there is no need to libelous.
adduce evidence of malice in fact. So, while malice in
law does not require evidence, malice in fact requires The crime is libel is the defamation is in writing or
evidence. printed media.

Malice in law can be negated by evidence that, in fact, The crime is slander or oral defamation if it is not
the alleged libelous or defamatory utterance was made printed.
with good motives and justifiable ends or by the fact
that the utterance was privileged in character. Even if what was imputed is true, the crime of libel is
committed unless one acted with good motives or
In law, however, the privileged character of a justifiable end. Poof of truth of a defamatory imputation
defamatory statement may be absolute or qualified. is not even admissible in evidence, unless what was
imputed pertains to an act which constitutes a crime
When the privileged character is said to be absolute, and when the person to whom the imputation was
the statement will not be actionable whether criminal or made is a public officer and the imputation pertains to
civil because that means the law does not allow the performance of official duty. Other than these, the
prosecution on an action based thereon. imputation is not admissible.

Illustration:
When proof of truth is admissible
As regards the statements made by Congressmen
while they are deliberating or discussing in Congress, 1. When the act or omission imputed constitutes a
when the privileged character is qualified, proof of crime regardless of whether the offended party
malice in fact will be admitted to take the place of is a private individual or a public officer;
malice in law. When the defamatory statement or
utterance is qualifiedly privileged, the malice in law is 2. When the offended party is a government
negated. The utterance or statement would not be employee, even if the act or omission imputed
actionable because malice in law does not exist. does not constitute a crime, provided if its
Therefore, for the complainant to prosecute the related to the discharged of his official duties.
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. Requisites of defense in defamation

When a libel is addressed to several persons, unless 1. If it appears that the matter charged as libelous
they are identified in the same libel, even if there are is true;
several persons offended by the libelous utterance or
statement, there will only be one count of libel. 2. It was published with good motives;

If the offended parties in the libel were distinctly 3. It was for justifiable ends.
identified, even though the libel was committed at one
and the same time, there will be as many libels as there
are persons dishonored. If a crime is a private crime, it cannot be prosecuted de
officio. A complaint from the offended party is
Illustration: necessary.

If a person uttered that “All the Marcoses are thieves,"

there will only be one libel because these particular Article 355. Libel by Means of Writings or Similar
Marcoses regarded as thieves are not specifically Means
identified.
A libel may be committed by means of –
If the offender said, “All the Marcoses – the father,
mother and daughter are thieves.” There will be three 1. Writing;

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2. Printing; (2) Grave slander, when it is of a serious and
insulting nature.
3. Lithography;

4. Engraving; Article 359. Slander by Deed

5. Radio; Elements

6. Photograph; 1. Offender performs any act not included in any

other crime against honor;
7. Painting;
2. Such act is performed in the presence of other
8. Theatrical exhibition; person or persons;

9. Cinematographic exhibition; or 3. Such act casts dishonor, discredit or contempt

upon the offended party.
10. Any similar means.

Slander by deed refers to performance of an act, not

Article 356. Threatening to Publish and Offer to use of words.
Prevent Such Publication for A Compensation
Two kinds of slander by deed
Acts punished
1. Simple slander by deed; and
1. Threatening another to publish a libel
concerning him, or his parents, spouse, child, 2. Grave slander by deed, that is, which is of a
or other members of his family; serious nature.

2. Offering to prevent the publication of such libel

for compensation or money consideration. 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
Blackmail – In its metaphorical sense, blackmail may under which the act was committed, the occasion, etc.
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, Article 363. Incriminating Innocent Persons
et al., 38 Phil. 857) Blackmail is possible in (1) light
threats under Article 283; and (2) threatening to Elements
publish, or offering to prevent the publication of, a libel
for compensation, under Article 356. 1. Offender performs an act;

2. By such an act, he incriminates or imputes to

Article 357. Prohibited Publication of Acts Referred an innocent person the commission of a crime;
to in the Course of Official Proceedings
3. Such act does not constitute perjury.
Elements
This crime cannot be committed through verbal
1. Offender is a reporter, editor or manager of a incriminatory statements. It is defined as an act and,
newspaper, daily or magazine; therefore, to commit this crime, more than a mere
utterance is required.
2. He publishes facts connected with the private
life of another; If the incriminating machination is made orally, the
crime may be slander or oral defamation.
3. Such facts are offensive to the honor, virtue
and reputation of said person. 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.
The provisions of Article 357 constitute the so-called
"Gag Law." 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
Article 358. Slander have been rendered.

Slander is oral defamation. There are tow kinds of oral As far as this crime is concerned, this has been
defamation: interpreted to be possible only in the so-called planting
of evidence.
(1) Simple slander; and

Article 364. Intriguing against Honor

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 negligence is clearly perceivable, the imprudence is
This crime is committed by any person who shall make reckless. If it could hardly be perceived, the criminal
any intrigue which has for its principal purpose to negligence would only be simple.
blemish the honor or reputation of another person.
There is no more issue on whether culpa is a crime in
itself or only a mode of incurring criminal liability. It is
Intriguing against honor is referred to as gossiping. practically settled that criminal negligence is only a
The offender, without ascertaining the truth of a modality in incurring criminal liability. This is so
defamatory utterance, repeats the same and pass it on because under Article 3, a felony may result from dolo
to another, to the damage of the offended party. Who or culpa.
started the defamatory news is unknown.
Since this is the mode of incurring criminal liability, if
Distinction between intriguing against honor and there is only one carelessness, even if there are
slander: several results, the accused may only be prosecuted
under one count for the criminal negligence. So there
When the source of the defamatory utterance is would only be one information to be filed, even if the
unknown and the offender simply repeats or passes the negligence may bring about resulting injuries which are
same, the crime is intriguing against honor. slight.

If the offender made the utterance, where the source of Do not separate the accusation from the slight physical
the defamatory nature of the utterance is known, and injuries from the other material result of the negligence.
offender makes a republication thereof, even though
he repeats the libelous statement as coming from If the criminal negligence resulted, for example, in
another, as long as the source is identified, the crime homicide, serious physical injuries and slight physical
committed by that offender is slander. injuries, do not join only the homicide and serious
physical injuries in one information for the slight
Distinction between intriguing against honor and physical injuries. You are not complexing slight when
incriminating an innocent person: you join it in the same information. It is just that you
are not splitting the criminal negligence because the
In intriguing against honor, the offender resorts to an real basis of the criminal liability is the negligence.
intrigue for the purpose of blemishing the honor or
reputation of another person. If you split the criminal negligence, that is where double
jeopardy would arise.
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.

TITLE XVI. CRIMINAL NEGLIGENCE

Article 365. Imprudence and Negligence

Quasi-offenses punished

1. Committing through reckless imprudence any

act which, had it been intentional, would
constitute a grave or less grave felony or light
felony;

2. Committing through simple imprudence or

negligence an act which would otherwise
constitute a grave or a less serious felony;

3. Causing damage to the property of another

through reckless imprudence or simple
imprudence or negligence;

4. 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

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