CRIMINAL LAW II ACJUCO 1

Article 114
TITLE ONE TREASON
CRIMES AGAINST NATIONAL SECURITY
ELEMENTS:
Crimes against national security a. That the offender owes allegiance to
the Government of the Philippines
1. Treason (Art. 114);
b. That there is a war in which the
2. Conspiracy and proposal to commit Philippines is involved
treason (Art. 115);
c. That the offender either –
3. Misprision of treason (Art. 116); and
1) Levies war against the government,
4. Espionage (Art. 117). 1. breech of allegiance
2. actual assembling of men
Crimes against the law of nations 3. for the purpose of executing a
treasonable design
1. Inciting to war or giving motives for
reprisals (Art. 118); 2) Adheres to the enemies, giving them
aid and comfort
2. Violation of neutrality (Art. 119); 1. breech of allegiance
2. adherence
3. Corresponding with hostile country (Art. 3. giving aid or comfort to the enemy
120);
Requirements of levying war
4. Flight to enemy's country (Art. 121); and 1) Actual assembling of men;
5. Piracy in general and mutiny on the high 2) To execute a treasonable design by force;
seas (Art. 122).
3) Intent is to deliver the country in whole or in
The crimes under this title can be prosecuted part to the enemy; and
even if the criminal act or acts were committed
outside the Philippine territorial jurisdiction. 4) Collaboration with foreign enemy or some
However, prosecution can proceed only if the foreign sovereign
offender is within Philippine territory or brought Success is not important. What matters is the
to the Philippines pursuant to an extradition actual assembly of men and the execution of
treaty. This is one of the instances where the treasonable design by force.
Revised Penal Code may be given extra-
territorial application under Article 2 (5) thereof.  Ways of proving treason:
In the case of crimes against the law of
nations, the offender can be prosecuted a. 2 witnesses testifying to same overt
whenever he may be found because the act
crimes are regarded as committed against
humanity in general. The testimonies must refer to the same act,
place and moment of time. Treason cannot be
proved by circumstantial evidence or by
extrajudicial confession.

Example: X saw arms landed in La

Union and loaded into a motor vehicle.
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At this stage, not sufficient to convict felony of treason (exception: when it

yet. Y later saw the arms unloaded in a is policy determining)
warehouse. Will X + Y be sufficient
witnesses to convict? Answer: NO. b. Serving in a puppet government
Because the law requires that 2 (ministerial functions) and in order to
witnesses see the SAME OVERT ACT. serve the populace is NOT
treasonous. But it is treason if: a)
b. Confession of the accused in open there is discretion involved; b) inflicts
court. harm on Filipinos; c) it is
Arraignment, pre-trial, trial – OK. disadvantageous to them.

1. If he has pleaded NOT guilty already c. Purpose of offender: to deliver the

during arraignment, he can still Philippines to enemy country; if
confess in open court by stating the merely to change officials – not
particular acts constituting treason. treason

2. During trial, simply saying “I’m guilty”  On Citizenship

is not enough. a. Filipino citizens can commit treason
outside the Philippines. But that of
3. Withdrawing plea of “not guilty” an alien must be committed in the
during arraignment not necessary Philippines.

4. If during arraignment he pleads b. Only Filipino citizens or permanent

guilty, court will ask if the accused resident aliens can be held liable
understands is plea. Submission of
affidavit during trial, even if assisted c. Alien: with permanent resident
by counsel is not enough. status from the BID – it is neither the
length of stay in the Philippines nor
 Treason: breach of allegiance to the the marriage with a Filipino that
government, committed by a person who matters.
owes allegiance to it. Allegiance: obligation
of fidelity and obedience. It is permanent or  Actual hostilities may determine the date of
temporary depending on whether the the commencement of war
person is a citizen or an alien.
 No such thing as attempted treason; mere
 Evident premeditation, superior strength attempt consummates the crime
and treachery are circumstances inherent in
treason, and are, therefore, not  Giving aid or comfort – material element,
aggravating. enhances forces of the enemy country.

 Treason cannot be committed in times of Acts which strengthen or tend to strengthen the
peace, only in times of war – actual enemy in the conduct of war against the
hostilities. But no need for declaration of traitor’s country or that which weaken and tend
war to weaken the power of the same.

 Not Treasonous: Example: Financing arms procurement of

a. Acceptance of public office and enemy country. But giving of shelter is not
discharge of official duties under the necessarily “giving aid and comfort.”
enemy does not constitute per se the
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 Adherence and giving aid or comfort must may consider only the number, nature and
concur together. gravity of the acts established during the trial.
The imposition of the penalty rests largely on
 Adherence: when a citizen intellectually or the exercise of judicial discretion.
emotionally favors the enemy and harbors
convictions disloyal to his country’s policy. Defenses that may be availed of by the
But membership in the police force during accused.
the occupation is NOT treason.
Example: Giving information to, or 1. Duress or uncontrollable fear of immediate
commandeering foodstuffs for the enemy. death; and

 Adherence may be proved by: (1) one 2. Lawful obedience to a de facto government.
witness; (2) from the nature of the act itself;
(3) from the circumstances surrounding the  When killings and other common crimes are
act. charged as overt act of treason, they
cannot be regarded as (1) separate crimes
When this adherence or sympathies are or (2) as complex with treason.
converted into aid and comfort, only then they
take material forM. This material form is now In the act of levying war or giving aid or comfort
what is made punishable. It is usually to the enemy, murder, robbery, arson or
manifested by the offender in giving falsification may be committed by the offender.
information, commandeering foodstuffs, BUT the offender does not commit the crime of
serving as spy and supplying the enemy with treason complexed with common crimes
war materials. because such crimes are inherent to treason,
being an indispensable element of the same.
 Treason is a CONTINUING CRIME. Even
after the war, offender can be prosecuted. Treason distinguished from Rebellion.

Treason is a continuing offense. It can be The manner in which both crimes are
committed by a single act or by a series of committed in the same. In treason however,
acts. It can be committed in one single time or the purpose of the offender is to deliver the
at different times and only one criminal intent. government to the enemy country or to a
In construing the provisions relating to the foreign power. In rebellion, the purpose of the
commission of several acts, the same must be rebels is to substitute the government with their
done in pursuance or furtherance of the act of own form of government. No foreign power is
treason. involved.

No matter how many acts of treason are Treason distinguished from Sedition.
committed by the offender, he will be liable for
only one crime of treason. In treason, the offender repudiates his
allegiance to the government by means of
 If you convict a person for treason by force or intimidation. He does not recognize the
reason of irresistible force or uncontrollable supreme authority of the State. He violates his
fear, you may use Art.12. No treason allegiance by fighting the forces of the duly
through negligence constituted authorities.

In the imposition of the penalty for the crime of In sedition, the offender disagrees with certain
treason, the court may disregard the presence policies of the State and seeks to disturb public
of mitigating and aggravating circumstances. It peace by raising a commotion or public
uprising.
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Article 115 Article 116

CONSPIRACY TO COMMIT TREASON MISPRISION OF TREASON

 ELEMENTS:  ELEMENTS:
a. In time of war a. That the offender must be owing
allegiance to the government, and
b. 2 or more persons come to an not a foreigner
agreement to
b. That he has knowledge of any
1. levy war against the conspiracy (to commit treason)
government, or against the government

2. adhere to the enemies and to c. That he conceals or does not

give them aid or comfort, disclose and make known the
same as soon as possible to the
c. They decide to commit it governor or fiscal of the province
or the mayor or fiscal of the city in
which he resides
 ELEMENTS OF PROPOSAL TO COMMIT While in treason, even aliens can commit said
TREASON crime because of the amendment to the article,
a. In time of war no such amendment was made in misprision of
treason. Misprision of treason is a crime that
b. A person who has decided to levy may be committed only by citizens of the
war against the government, or to Philippines.
adhere to the enemies and to give
them aid or comfort, proposes its  Offender is punished as an accessory to the
execution to some other person/s. crime of treason

 Mere agreement and decisions to commit Take note that the offender is a principal to the
treason is punishable crime of misprision of treason, yet he is
penalized only as an accessory. In the
 Mere proposal even without acceptance is imposition of the penalty, the court is not bound
punishable too. If the other accepts, it is by the provisions of Article 63 and 64, referring
already conspiracy. to indivisible penalties. In the presence of
mitigating and aggravating circumstances, the
While Treason as a crime should be offender is punished two degrees lower than
established by the two-witness rule, the same the penalty for the crime of treason.
is not observed when the crime committed
conspiracy to commit treason or when it is only The criminal liability arises if the treasonous
a proposal to commit treason. activity was still at the conspiratorial stage

 This crime does not apply if the crime of

treason is already committed

 Crime of omission

This is a felony by omission although

committed with dolo, not with culpa.
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 “To report within a reasonable time” – individual, whether an alien or a citizen of the
depends on time, place and circumstance – Philippines, or a public officer.
the RPC did not fix time.

 RPC states 4 individuals, what if you report Espionage by disclosing to the

to some other high-ranking government representative of a foreign nation the
official? Ex. PNP Director? Judge Pimentel contents of the articles, data, or information
says any gov’t official of the DILG is OK. referred to in paragraph 1 of Article 117,
which he had in his possession by reason
Whether the conspirators are parents or of the public office holds
children, and the ones who learn the
conspiracy is a parent or child, they are
required to report the same. The reason is that ELEMENTS:
although blood is thicker than water so to a. That the offender is a public officer
speak, when it comes to security of the state,
blood relationship is always subservient to b. That he has in his possession the
national security. Article 20 does not apply articles, data or information referred
here because the persons found liable for this to in par 1 of art 117, by reason of the
crime are not considered accessories; they are public office he holds
treated as principals.
c. That he discloses their contents to a
Article 117 representative of a foreign nation

Espionage by entering, without authority  Purpose: to gather data

therefor, warship, fort, or naval or military
establishments or reservation to obtain any Under the second mode, the offender must be
information, plans, photographs or other a public officer who has in possession the
data of a confidential nature relative to the articles, data or information by reason of the
defense of the Philippines. office he holds. Taking advantage of his official
position, he reveals or discloses the
 ELEMENTS: information which are confidential and are
a. 1. That the offender enters any of the relevant to the defense of the Philippines.
places mentioned therein
2  Espionage: the offense of gathering,
3 2. That he has no authority transmitting, or losing information
therefore; respecting the national defense with the
intent or reason to believe that the
b. That his purpose is to obtain information is to be used to the injury of the
information, plans, photographs or Philippines or the advantage of any foreign
other data of a confidential nature nation. It is not conditioned on citizenship.
relative to the defense of the
Philippines  Not necessary that Philippines is at war
with the country to which the information
Under the first mode of committing espionage, was revealed. What is important is that the
the offender must have the intention to obtain information related is connected with the
information relative to the defense of the PHIL. defense system of the Philippines.
It is sufficient that he entered the prohibited
premises. Here, the offender is any private
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 Wiretapping is NOT espionage if the

purpose is not something connected with
the defense

Commonwealth Act No. 616 – An Act to Article 118

Punish Espionage and Other Offenses INCITING TO WAR OR GIVING MOTIVES
against National Security FOR REPRISALS

Acts punished  ELEMENTS:

a. That the offender performs unlawful
1. Unlawfully obtaining or permitting to be or unauthorized acts
obtained information affecting national
defense; b. That such acts provoke or give
occasion for a war involving or
2. Unlawful disclosing of information liable to involve the Philippines or
affecting national defense; expose Filipino citizens to reprisals
on their persons or property
3. Disloyal acts or words in times of peace;  Crime is committed in time of peace, intent
is immaterial
4. Disloyal acts or words in times of war;
 Inciting to war – offender is any person
5. Conspiracy to violate preceding
sections;  Reprisals is not limited to military action, it
could be economic reprisals, or denial of
6. Harboring or concealing violators of law entry into their country.
and;
Example. X burns Chinese flag. If China bans
7. Photographing vital military information the entry of Filipinos into China, that is already
reprisal.

CRIMES AGAINST LAWS OF NATIONS Article 119

VIOLATION OF NEUTRALITY
In crimes against the law of nations, the
offenders can be prosecuted anywhere in the ELEMENTS:
world because these crimes are considered as a. That there is war in which the
against humanity in general, like piracy and Philippines is not involved
mutiny. Crimes against national security can
be tried only in the Philippines, as there is a b. That there is a regulation issued by
need to bring the offender here before he can competent authority for the purpose
be made to suffer the consequences of the of enforcing neutrality
law. The acts against national security may be
committed abroad and still be punishable c. That the offender violates such
under our law, but it can not be tried under regulation
foreign law.
 Gov’t must have declared the neutrality of
the Phil in a war between 2 other countries

The regulation must be issued by a competent

authority like the President of the Philippines or
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the Chief of Staff of the Armed Forces of the  Correspondence to enemy country –
Philippines, during a war between different correspondence to officials of enemy
countries in which the Philippines is not taking country – even if related to you.
sides.
 It is not correspondence with private
 It is neutrality of the Phil that is violated individual in enemy country

 Congress has the right to declare neutrality  If ciphers were used, no need for prohibition

The violations can be done either by means of  If ciphers were not used, there is a need for
dolo or by means of culpa. So violation of prohibition
neutrality can be committed through reckless
imprudence.  In any case, it must be correspondence
with the enemy country
Article 120
CORRESPONDENCE WITH HOSTILE  Doesn’t matter if correspondence contains
COUNTRY innocent matters – if prohibited, punishable

ELEMENTS:
a. That it is in time of war in which the Article 121
Philippines is involved FLIGHT TO ENEMY’S COUNTRY

b. That the offender makes  ELEMENTS

correspondence with an enemy a. That there is a war in which the
country or territory occupied by Philippines is involved
enemy troops
b. That the offender (Filipino or resident
c. That the correspondence is either – alien) must be owing allegiance to
the government
1. prohibited by the government, or
c. That the offender attempts to flee or
2. carried on in ciphers or go to enemy country
conventional signs, or
d. That going to enemy country is
3. containing notice or information prohibited by competent authority
which might be useful to the
enemy  Mere attempt consummates the crime
 Circumstances qualifying the offense:  There must be a prohibition. If none, even if
1 a. notice or information might be useful to went to enemy country – no violation
the enemy
2
 Alien resident may be guilty here.
3 b. offender intended to aid the enemy
Article 122
 Hostile country exist only during hostilities PIRACY
or after the declaration of war
 2 Ways of Committing Piracy
 CRIMINAL LAW II ACJUCO 8

a. By attacking or seizing a vessel on the lucrandi and in the of its commander

high seas or in the Philippine waters spirit and intention of
(PD 532) universal hostility.
Intent to gain is an No criminal intent
b. By seizing the whole or part of the cargo element.
of said vehicles, its equipment or Attack from outside. Attack from the inside.
Offenders are
personal belongings of its complement
strangers to the vessel.
or passengers
 under the amended article, piracy can only
 Elements:
be committed by a person who is not a
a. That a vessel is on the high
passenger nor member of the complement
seas/Philippine waters
of the vessel irrespective of venue. So if a
passenger or complement of the vessel
b. That the offenders are not members
commits acts of robbery in the high
of its complement or passengers of
seas, the crime is robbery, not piracy.
the vessel
 If in the Phil. waters still piracy
c. That the offenders –
However, despite the amendment, P.D. No.
532 may still apply where the offender is not
1. attack or seize that vessel or
stranger to the vessel since it provides: “Any
(hence, if committed by crew or
attack upon or seize of any vessel, or the
passengers, the crime is not piracy
taking away of the whole of part thereof or its
but robbery in the high seas)
cargo, equipment or the personal belongings
of its complement or passengers, irrespective
2. seize the whole or part of the
of the value hereof, by means of violence
cargo of said vessel, its
against or intimidation of persons or force upon
equipment or personal belongings
things, committed by any person, including a
of its complement or passengers
passenger or member of the complement of
said vessel, in Philippine waters, shall be
 High seas: any waters on the sea coast
considered as piracy. The offenders shall be
which are without the boundaries of the low
considered as pirates and punished as
water mark although such waters may be in
hereinafter provided.” After all, under the
the jurisdictional limits of a foreign gov’t
Revised Penal Code, for one to be called a
pirate, the offender must be a stranger to the
 Piracy in high seas – jurisdiction is with vessel.
any court where offenders are found or
arrested
 While the Article 122 limits the offenders to
non-passengers or non-members of the
 Piracy in internal waters – jurisdiction is crew, P.D. 532 states that the attack upon
only with Philippine courts or seizure of any vessel, or taking away the
whole or part thereof or its cargo,
 For purpose of Anti-Fencing Law, piracy is equipment or personal belongings of its
part of robbery and theft complement or passengers committed by
any person including a passenger or
Piracy Mutiny member of the complement of said vessel
Robbery or forcible Unlawful resistance to a
shall be considered Piracy.
degradation on the superior officer, or the
high seas, without raising of commotion and
lawful authority and disturbances on board a Note, however, that in Section 4 of Presidential
done with animo ship against the authority Decree No. 532, the act of aiding pirates or
 CRIMINAL LAW II ACJUCO 9

abetting piracy is penalized as a crime distinct personal belongings of the

from piracy. Said section penalizes any person crew or passengers.
who knowingly and in any manner aids or
protects pirates, such as giving them
information about the movement of the police Mutiny is the unlawful resistance to a superior
or other peace officers of the government, or officer, or the raising of commotions and
acquires or receives property taken by such disturbances aboard a ship against the
pirates, or in any manner derives any benefit authority of its commander.
therefrom; or who directly or indirectly abets Article 123
the commission of piracy. Also, it is expressly QUALIFIED PIRACY
provided in the same section that the offender
shall be considered as an accomplice of the  QUALIFYING CIRCUMSTANCES:
principal offenders and punished in a. Whenever they have seized a vessel
accordance with the Revised Penal Code. by boarding or firing upon the same
This provision of Presidential Decree No. 532
with respect to piracy in Philippine water has b. Whenever the pirates have
not been incorporated in the Revised Penal abandoned their victims without
Code. Neither may it be considered repealed means of saving themselves
by Republic Act No. 7659 since there is nothing
in the amendatory law is inconsistent with said c. Whenever the crime is accompanied
section. Apparently, there is still the crime of by murder, homicide, physical
abetting piracy in Philippine waters under injuries, or rape. (the above may
Presidential Decree No. 532. result to qualified mutiny)

Considering that the essence of piracy is one Murder, rape, homicide, physical injuries are
of robbery, any taking in a vessel with force mere circumstances qualifying piracy and
upon things or with violence or intimidation cannot be punished as separate crimes, nor
against person is employed will always be can they be complexed with piracy.
piracy. It cannot co-exist with the crime of
robbery. Robbery, therefore, cannot be  Parricide/infanticide should be included
committed on board a vessel. But if the taking (Judge Pimentel)
is without violence or intimidation on persons
or force upon things, the crime of piracy cannot  Murder/rape/homicide/physical injuries
be committed, but only theft. must have been committed on the
passengers or complement
Elements of mutiny
In piracy, where rape, murder or homicide is
1) The vessel is on the high seas or committed, the mandatory penalty of death is
Philippine waters; imposable. This means that even if the
accused enters a plea of guilty, the penalty of
2) Offenders are either members of its death will still be imposed because death is a
complement, or passengers of the single and indispensable penalty. (People vs.
vessel; Rodriguez, 135 SCRA 485)

3) Offenders either – The penalty for qualified piracy is reclusion

perpetua to death. If any of the circumstances
a. attack or seize the vessel; or enumerated under the law is proven or
established, the mandatory penalty of death
b. seize the whole or part of the should be imposed. The presence of mitigating
cargo, its equipment, or
 CRIMINAL LAW II ACJUCO 10

or aggravating circumstances will be ignored flammable, corrosive, explosive, or

by the court. poisonous substance if this was done
not in accordance with the rules and
Although in Article 123 merely refers to regulations set and promulgated by the
qualified piracy, there is also the crime of Air Transportation Office on this matter.
qualified mutiny. Mutiny is qualified under the
following circumstances: Between numbers 1 and 2, the point of
distinction is whether the aircraft is of
(1) When the offenders abandoned the Philippine registry or foreign registry. The
victims without means of saving common bar question on this law usually
themselves; or involves number 1. The important thing is that
before the anti hi-jacking law can apply, the
(2) When the mutiny is accompanied by aircraft must be in flight. If not in flight,
rape, murder, homicide, or physical whatever crimes committed shall be governed
injuries. by the Revised Penal Code. The law makes a
distinction between aircraft of a foreign registry
Note that the first circumstance which qualifies and of Philippine registry. If the aircraft
piracy does not apply to mutiny. subject of the hi-jack is of Philippine
registry, it should be in flight at the time of the
hi-jacking. Otherwise, the anti hi-jacking law
Republic Act No. 6235 (The Anti Hi-Jacking will not apply and the crime is still punished
Law) under the Revised Penal Code. The
correlative crime may be one of grave coercion
Anti hi-jacking is another kind of piracy which is or grave threat. If somebody is killed, the
committed in an aircraft. In other countries, this crime is homicide or murder, as the case may
crime is known as aircraft piracy. be. If there are some explosives carried there,
the crime is destructive arson. Explosives are
by nature pyro-techniques. Destruction of
Four situations governed by anti hi-jacking property with the use of pyro-technique is
law: destructive arson. If there is illegally
possessed or carried firearm, other special
(1) usurping or seizing control of an aircraft laws will apply.
of Philippine registry while it is in flight,
compelling the pilots thereof to change On the other hand, if the aircraft is of foreign
the course or destination of the aircraft; registry, the law does not require that it be in
flight before the anti hi-jacking law can apply.
(2) usurping or seizing control of an aircraft This is because aircrafts of foreign registry are
of foreign registry while within Philippine considered in transit while they are in foreign
territory, compelling the pilots thereof to countries. Although they may have been in a
land in any part of Philippine territory; foreign country, technically they are still in
flight, because they have to move out of that
(3) carrying or loading on board an aircraft foreign country. So even if any of the acts
operating as a public utility passenger mentioned were committed while the exterior
aircraft in the Philippines, any doors of the foreign aircraft were still open, the
flammable, corrosive, explosive, or anti hi-jacking law will already govern.
poisonous substance; and
Note that under this law, an aircraft is
(4) loading, shipping, or transporting on considered in flight from the moment all
board a cargo aircraft operating as a exterior doors are closed following
public utility in the Philippines, any embarkation until such time when the same
 CRIMINAL LAW II ACJUCO 11

doors are again opened for disembarkation. gave instructions where to fly the aircraft.
This means that there are passengers that Does the anti hi-jacking law apply?
boarded. So if the doors are closed to bring the
aircraft to the hangar, the aircraft is not No. The passengers have yet to board
considered as in flight. The aircraft shall be the aircraft. If at that time, the offenders are
deemed to be already in flight even if its engine apprehended, the law will not apply because
has not yet been started. the aircraft is not yet in flight. Note that the
aircraft is of Philippine registry.

Questions & Answers 3. While the stewardess of a

Philippine Air Lines plane bound for Cebu was
waiting for the passenger manifest, two of its
1. The pilots of the Pan Am aircraft passengers seated near the pilot surreptitiously
were accosted by some armed men and were entered the pilot cockpit. At gunpoint, they
told to proceed to the aircraft to fly it to a directed the pilot to fly the aircraft to the Middle
foreign destination. The armed men walked East. However, before the pilot could fly the
with the pilots and went on board the aircraft. aircraft towards the Middle East, the offenders
But before they could do anything on the were subdued and the aircraft landed. What
aircraft, alert marshals arrested them. What crime was committed?
crime was committed?
The aircraft was not yet in flight.
The criminal intent definitely is to take Considering that the stewardess was still
control of the aircraft, which is hi-jacking. It is waiting for the passenger manifest, the doors
a question now of whether the anti-hi-jacking were still open. Hence, the anti hi-jacking law
law shall govern. is not applicable. Instead, the Revised Penal
Code shall govern. The crime committed was
The anti hi-jacking law is applicable in grave coercion or grave threat, depending
this case. Even if the aircraft is not yet about upon whether or not any serious offense
to fly, the requirement that it be in flight does violence was inflicted upon the pilot.
not hold true when in comes to aircraft of
foreign registry. Even if the problem does not However, if the aircraft were of foreign
say that all exterior doors are closed, the crime registry, the act would already be subject to the
is hi-jacking. Since the aircraft is of foreign anti hi-jacking law because there is no
registry, under the law, simply usurping or requirement for foreign aircraft to be in flight
seizing control is enough as long as the aircraft before such law would apply. The reason for
is within Philippine territory, without the the distinction is that as long as such aircraft
requirement that it be in flight. has not returned to its home base, technically,
it is still considered in transit or in flight.
Note, however, that there is no hi-
jacking in the attempted stage. This is a
special law where the attempted stage is not As to numbers 3 and 4 of Republic Act No.
punishable. 6235, the distinction is whether the aircraft is a
passenger aircraft or a cargo aircraft. In both
2. A Philippine Air Lines aircraft is cases, however, the law applies only to
bound for Davao. While the pilot and co-pilot public utility aircraft in the Philippines.
are taking their snacks at the airport lounge, Private aircrafts are not subject to the anti hi-
some of the armed men were also there. The jacking law, in so far as transporting prohibited
pilots were followed by these men on their way substances are concerned.
to the aircraft. As soon as the pilots entered
the cockpit, they pulled out their firearms and
 CRIMINAL LAW II ACJUCO 12

If the aircraft is a passenger aircraft, the shall be higher because a passenger or

prohibition is absolute. Carrying of any complement of the aircraft had been killed.
prohibited, flammable, corrosive, or explosive The crime of homicide or murder is not
substance is a crime under Republic Act No. committed.
6235. But if the aircraft is only a cargo aircraft,
the law is violated only when the transporting 2. The hi-jackers threatened to
of the prohibited substance was not done in detonate a bomb in the course of the hi-jack.
accordance with the rules and regulations What crime or crimes were committed?
prescribed by the Air Transportation Office in
the matter of shipment of such things. The Again, the crime is violation of the anti
Board of Transportation provides the manner of hi-jacking law. The separate crime of grave
packing of such kind of articles, the quantity in threat is not committed. This is considered as
which they may be loaded at any time, etc. a qualifying circumstance that shall serve to
Otherwise, the anti hi-jacking law does not increase the penalty.
apply.

However, under Section 7, any physical injury

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

All other acts outside of the four are merely

qualifying circumstances and would bring
about higher penalty. Such acts would not
constitute another crime. So the killing or
explosion will only qualify the penalty to a
higher one.

Questions & Answers

1. In the course of the hi-jack, a

passenger or complement was shot and killed.
What crime or crimes were committed?

The crime remains to be a violation of

the anti hi-jacking law, but the penalty thereof
 CRIMINAL LAW II ACJUCO 13

illegally. But private persons may also be liable

under this title as when a private person
conspires with a public officer. What is
required is that the principal offender must be a
public officer. Thus, if a private person
conspires with a public officer, or becomes an
accessory or accomplice, the private person
TITLE TWO also becomes liable for the same crime. But a
private person acting alone cannot commit the
crimes under Article 124 to 132 of this title.
CRIMES AGAINST THE FUNDAMENTAL
LAWS OF THE STATE Classes of Arbitrary Detention:
a. By detaining a person without legal
Crimes against the fundamental laws of the ground
State b. Delay in the delivery of detained
persons to the proper judicial authorities
1. Arbitrary detention (Art. 124); c. Delaying release

2. Delay in the delivery of detained

persons to the proper judicial authorities Article 124
(Art. 125); ARBITRARY DETENTION

3. Delaying release (Art. 126);  ELEMENTS:

a. That the offender is a public officer
4. Expulsion (Art. 127); or employee (whose official duties
include the authority to make an arrest
5. Violation of domicile (Art. 128); and detain persons; jurisdiction to
maintain peace and order).
6. Search warrants maliciously obtained
and abuse in the service of those legally b. That he detains a person (actual
obtained (Art. 129); restraint).

7. Searching domicile without witnesses c. That the detention was without legal
(Art. 130); grounds (cannot be committed if with
warrant).
8. Prohibition, interruption, and dissolution
of peaceful meetings (Art. 131);  Detention: when a person is placed in
confinement or there is a restraint on his
9. Interruption of religious worship (Art. person.
132); and
Only those public officers whose official duties
10. Offending the religious feelings (Art. carry with it the authority to make an arrest and
133); detain persons can be guilty of this crime. So,
if the offender does not possess such authority,
Under this title, the offenders are public the crime committed by him is illegal detention.
officers, except as to the last crime – offending
the religious feelings under Article 133, which  Though the elements specify that the
refers to any person. The public officers who offender be a public officer or employee,
may be held liable are only those acting under
supposed exercise of official functions, albeit
 CRIMINAL LAW II ACJUCO 14

private individuals who conspire with public

officers can also be liable.  For escaped prisoner – no need for warrant

In a case decided by the Supreme Court a  Example: Y was killed by unknown

Barangay Chairman who unlawfully detains assailant. Officers got a tip and arrested X.
another was held to be guilty of the crime of X voluntarily admitted to the officers that he
arbitrary detention. This is because he is a did it although he was not asked. X was
person in authority vested with the jurisdiction detained immediately. According to the SC,
to maintain peace and order within his there was NO arbitrary detention. Why?
barangay. In the maintenance of such peace Because once X made a confession, the
and order, he may cause the arrest and officers had a right to arrest him.
detention of troublemakers or those who
disturb the peace and order within his Arbitrary detention can be committed thru
barangay. But if the legal basis for the simple imprudence or negligence. (People vs.
apprehension and detention does not exist, Misa)
then the detention becomes arbitrary.
Periods of Detention penalized:
 Legal grounds for the detention of any
person: 1. Detention not exceeding three days;
a. commission of a crime
2. Detention for more than three days but not
b. violent insanity or other ailment requiring more than 15 days;
compulsory confinement of the patient in
a hospital 3. Detention for more than 15 days but not
more than 6 months; and
c. escaped prisoner
4. Detention for more than 6 months.
When the peace officers acted in good
faith even if the three (3) grounds mentioned  Continuing crime is different from a
above are not obtaining, there is no Arbitrary continuous crime
Detention.
 Ramos v. Enrile: Rebels later on retire.
 Without legal grounds: According to the SC, once you have
a. he has not committed any crime or no committed rebellion and have not been
reasonable ground of suspicion that he punished or amnestied, then the rebels
has committed a crime continue to engage in rebellion, unless the
rebels renounce his affiliation. Arrest can be
b. not suffering from violent insanity or any made without a warrant because this is a
other ailment requiring compulsory continuing crime.
confinement in a hospital Distinction between arbitrary detention and
illegal detention
 Grounds for warrantless arrest:
a. Crime is about to be, is being, has been 1. In arbitrary detention --
committed in his presence
The principal offender must be a public
b. Officer must have probable cause to officer. Civilians cannot commit the
believe based on personal knowledge of crime of arbitrary detention except when
facts and circumstances that the person they conspire with a public officer
probably committed the crime committing this crime, or become an
 CRIMINAL LAW II ACJUCO 15

accomplice or accessory to the crime In unlawful arrest, the offender may be

committed by the public officer; and any person.

The offender who is a public officer has (2) As to criminal intent

a duty which carries with it the authority
to detain a person. In arbitrary detention, the main reason
for detaining the offended party is to
deny him of his liberty.

2. In illegal detention -- In unlawful arrest, the purpose is 1) to

accuse the offended party of a crime he
The principal offender is a private did not commit; 2) to deliver the person
person. But a public officer can commit to the proper authority; and 3) to file the
the crime of illegal detention when he is necessary charges in a way trying to
acting in a private capacity or beyond incriminate him.
the scope of his official duty, or when he
becomes an accomplice or accessory to When a person is unlawfully arrested, his
the crime committed by a private subsequent detention is without legal grounds.
person.

The offender, even if he is a public Article 125

officer, does not include as his function DELAY IN THE DELIVERY OF DETAINED
the power to arrest and detain a person, PERSONS
unless he conspires with a public officer
committing arbitrary detention.  ELEMENTS:
a. That the offender is a public officer
Whether the crime is arbitrary detention or or employee
illegal detention, it is necessary that there must
be an actual restraint of liberty of the offended b. That he has detained a person for
party. If there is no actual restraint, as the some legal grounds
offended party may still go to the place where
he wants to go, even though there have been c. That he fails to deliver such person
warnings, the crime of arbitrary detention or to the proper judicial authority
illegal detention is not committed. There is within:
either grave or light threat. 1. 12 hours, if detained for
crimes/offenses punishable by light
However, if the victim is under guard in his penalties, or their equivalent
movement such that there is still restraint of 2. 18 hours, for crimes/offenses
liberty, then the crime of either arbitrary or punishable by correctional
illegal detention is still committed. penalties, or their equivalent or
3. 36 hours, for crimes/offenses
Distinction between arbitrary detention and punishable by capital punishment
unlawful arrest or afflictive penalties, or their
equivalent
(1) As to offender
Article 125 covers situations wherein the
In arbitrary detention, the offender is a person detained has been arrested without a
public officer possessed with authority to warrant but his arrest is nonetheless lawful. It
make arrests. is a felony committed by omission because of
the failure of the offender to deliver the
 CRIMINAL LAW II ACJUCO 16

detained person to the proper judicial authority with the proper judicial authority. It does not
within 12 hours, 18 hours and 36 hours as the involve the physical delivery of the prisoner
case may be. before the judge (Sayo vs. Chief of Police).

At the beginning, the detention is legal since it  The filing of the information in court does
is in the pursuance of a lawful arrest. not cure illegality of detention. Neither does
However, the detention becomes arbitrary it affect the legality of the confinement
when the period thereof exceeds 12, 18 or 36 under process issued by the court.
hours, as the case may be, depending on
whether the crime is punished by light,  To escape from this, officers usually ask
correctional or afflictive penalty or their accused to execute a waiver which should
equivalent. be under oath and with assistance of
counsel. Such waiver is not violative of the
 Really means delay in filing necessary accused constitutional right.
information or charging of person detained
in court.  What is length of waiver? Light offense –
 May be waived if a preliminary investigation 5 days. Serious and less serious offenses –
is asked for. 7 to 10 days. (Judge Pimentel)

Under the Revised Rules of Court, when the  Article does not apply when arrest is via a
person arrested is arrested for a crime which warrant of arrest
gives him the right to preliminary investigation
and he wants to avail his right to a preliminary Q. Within what period should a police
investigation, he would have to waive in writing officer who has arrested a person under a
his rights under Article 125 so that the arresting warrant of arrest turn over the arrested person
officer will not immediately file the case with the to the judicial authority?
court that will exercise jurisdiction over the
case. If he does not want to waive this in A. There is no time limit specified
writing, the arresting officer will have to comply except that the return must be made within a
with Article 125 and file the case immediately in reasonable time. The period fixed by law
court without preliminary investigation. In such under Article 125 does not apply because the
case, the arrested person, within five days after arrest was made by virtue of a warrant of
learning that the case has been filed in court arrest.
without preliminary investigation, may ask for
preliminary investigation. In this case, the  If offender is a private person, crime is
public officer who made the arrest will no illegal detention
longer be liable for violation of Article 125.
 Before Article 125 may be applied, it is
 Does not contemplate actual physical necessary that initially, the detention of the
delivery but at least there must be a arrested person must be lawful because the
complaint filed. Duty complied with upon arrest is based on legal grounds. If the
the filing of the complaint with the judicial arrest is made without a warrant, this
authority (courts, prosecutors – though constitutes an unlawful arrest. Article
technically not a judicial authority, for 269(unlawful arrest), not Article 125, will
purposes of this article, he’s considered as apply. If the arrest is not based on legal
one.) grounds, the arrest is pure and simple
arbitrary detention. Article 125
Delivery of detained person consists in making contemplates a situation where the arrest
charge of filing a compliant against the prisoner was made without warrant but based on
 CRIMINAL LAW II ACJUCO 17

legal grounds. This is known as citizen’s  Three acts are punishable:

arrest. a. delaying the performance of a judicial or
executive order for the release of a
 A police officer has no authority to arrest prisoner
and detain a person on the basis merely of
the complaint of the offended party, even if b. delaying the service of notice of such
after investigation he becomes convinced order to said prisoner
that the accused is guilty of the offense
charged. What the complainant may do is c. delaying the proceedings upon any
to file a complaint with the court and ask for petition for the liberation of such person
the issuance of a warrant of arrest.
 Wardens and jailers are the persons most
Arbitrary Detention Delay in Delivery of likely to violate this provision
(124) Detained (125)
Detention is illegal Detention is legal in  Provision does not include legislation
from the beginning. the beginning, but
illegality starts from
the expiration of the Article 127
specified periods EXPULSION
without the persons
detained having been ELEMENTS:
delivered to the proper a. That the offender is a public officer
judicial authority. or employee

Article 126 b. That he expels any person from the

DELAYING RELEASE Philippines, or compels a person to
change his residence
ELEMENTS:
a. That the offender is a public officer c. That the offender is not authorized to
or employee do so by law

b. That there is a judicial or executive  2 acts punishable:

order for the release of a prisoner or a. by expelling a person from the
detention prisoner, or that there is a Philippines
proceeding upon a petition for the
liberation of such person b. by compelling a person to change his
residence
c. That the offender without good
reason delays: The essence of this crime is coercion but the
specific crime is “expulsion” when committed
1. the service of the notice of such by a public officer. If committed by a private
order to the prisoner, or person, the crime is grave coercion.

2. the performance of such judicial In the Philippines, only the President of the
or executive order for the release Republic has the power to deport aliens whose
of the prisoner, or continued stay in the country constitutes a
3. the proceedings upon a petition menace to the peace and safety of the
for the release of such person community.
 CRIMINAL LAW II ACJUCO 18

In the case of Filipino citizens, only the court, make a search therein for papers or
by final judgment, can order a person to other effects
change his residence.
c. That he commits any of the following
In Villavicencio v. Lukban, 39 Phil 778, the acts:
mayor of the City of Manila wanted to make the
city free from prostitution. He ordered certain 1. entering any dwelling against the
prostitutes to be transferred to Davao, without will of the owner thereof
observing due processes since they have not
been charged with any crime at all. It was held 2. searching papers or other effects
that the crime committed was expulsion. found therein without the
previous consent of such owner
 Does not include undesirable aliens;
destierro; or when sent to prison 3. refusing to leave the premises,
after having surreptitiously
entered said dwelling and after
Questions & Answers
having been required to leave the
same
1. Certain aliens were arrested and
they were just put on the first aircraft which  Aggravating Circumstance (medium and
brought them to the country so that they may maximum of penalty imposed):
be out without due process of law. Was there a. Offense committed at nighttime
a crime committed?
b. Papers or effects not constituting
Yes. Expulsion. evidence of a crime be not returned
immediately
2. If a Filipino citizen is sent out of
the country, what crime is committed? In order to commit this crime, the entry must be
against the will of the owner. If the entry is only
Grave coercion, not expulsion, because without the consent of the owner, the crime of
a Filipino cannot be deported. This crime violation of domicile is not committed.
refers only to aliens. The prohibition may be expressed or implied. If
the signs “Do not enter” and “Strangers keep
 If X (Filipino) after he voluntarily left, is out” are posted in front of the house or
refused re-entry – is considered forcing him dwelling, then the prohibition is express. If the
to change his address here door is locked, or even if it is open but these
are barriers to indicate the manifest intention of
 Threat to national security is not a ground the owner to bar strangers from entering, there
to expel or change his address. is implied prohibition.

The primary object of the law is to preserve the

Article 128 privacy of abode of the offended party. Hence,
VIOLATION OF DOMICILE if the privacy is already lost, as when the
offender has been allowed by the owner to
ELEMENTS: enter the dwelling together with other persons,
a. That the offender is a public officer any subsequent change of attitude will not
or employee restore the privacy which was already lost.
When privacy is waived, trespass to dwelling or
b. That he is not authorized by judicial violation of domicile cannot be committed.
order to enter the dwelling and/or to
 CRIMINAL LAW II ACJUCO 19

 If the offender who enters the dwelling c. person entered secretly and refuses
against the will of the owner thereof is a to leave after being asked to
private individual, the crime committed is
trespass to dwelling (Art 280) The act punished is not the entry but
the refusal to leave. If the offender upon
 When a public officer searched a person being directed to leave, followed and
“outside his dwelling” without a search left, there is no crime of violation of
warrant and such person is not legally domicile. Entry must be done
arrested for an offense, the crime surreptitiously; without this, crime may
committed by the public officer is grave be unjust vexation. But if entering was
coercion, if violence or intimidation is used done against the will of the occupant of
(Art 286), or unjust vexation, if there is no the house, meaning there was express
violence or intimidation (Art 287) or implied prohibition from entering the
same, even if the occupant does not
 A public officer without a search warrant direct him to leave, the crime of violation
cannot lawfully enter the dwelling against of domicile is already committed
the will of the owner, even if he knew that because it would fall in number 1.
someone in that dwelling is having unlawful
possession of opium  “Being authorized by law” – means with
search warrant, to save himself or do some
 Under Rule 113(sec. 11) of the Revised things good for humanity
Rules of Court, when a person to be
arrested enters a premise and closes it There are only three recognized instances
thereafter, the public officer, after giving when search without a warrant is considered
notice of an arrest, can break into the valid, and, therefore, the seizure of any
premise. He shall not be liable for violation evidence done is also valid. Outside of these,
of domicile. search would be invalid and the objects seized
would not be admissible in evidence.
 3 acts punishable:
a. person enters dwelling w/o consent (1) Search made incidental to a valid arrest;
or against the will
(2) Where the search was made on a
In the plain view doctrine, public officer moving vehicle or vessel such that the
should be legally entitled to be in the exigency of he situation prevents the
place where the effects were found. If searching officer from securing a search
he entered the place illegally and he warrant;
saw the effects, doctrine inapplicable;
thus, he is liable for violation of domicile. (3) When the article seized is within plain
view of the officer making the seizure
b. person enters and searches for without making a search therefore.
papers and effects
 Papers and effects need not be part of a
Public officer who enters with consent crime.
searches for paper and effects without
the consent of the owner. Even if he is
welcome in the dwelling, it does not Article 129
mean he has permission to search. SEARCH WARRANTS MALICIOUSLY
OBTAINED

ELEMENTS:
 CRIMINAL LAW II ACJUCO 20

a. That the offender is a public officer b. That he has legally procured a search
or employee warrant

b. That he procures a search warrant c. That he exceeds his authority or uses

unnecessary severity in executing
c. That there is no just cause the same

 In order that a search warrant may be  Search warrant is valid for 10 days from its
issued, it must be based on probable cause date
in connection with one offense, to be
determined by a judge after examination  Search warrant is an order in writing
under oath of the complainant and the issued in the name of the People, signed by
witnesses he may produce, and particularly the judge and directed to a public officer,
describing the place to be searched and the commanding him to search for personal
persons or things to be seized. property described therein and bring it
before the court
This means there was no probable cause
determined in obtaining the search warrant.  No just cause – warrant is unjustified
 Although void, the search warrant is entitled
to respect because of presumption of  Search – limited to what is described in the
regularity. One remedy is a motion to warrant, all details must be with particularity
quash the search warrant, not refusal to
abide by it. The public officer may also be The officer exceeded his authority under the
prosecuted for perjury, because for him to warrant – To illustrate, let us say that there was
succeed in obtaining a search warrant a pusher in a condo unit. The PNP Narcotics
without a probable cause, he must have Group obtained a search warrant but the name
perjured himself or induced someone to of person in the search warrant did not tally
commit perjury to convince the court. with the address stated. Eventually, the person
with the same name was found but in a
The true test of lack of just cause is whether different address. The occupant resisted but
the sworn statement filed in support of the the public officer insisted on the search. Drugs
application for search warrant has been done were found and seized and occupant was
in such a manner that perjury could be charged prosecuted and convicted by the trial court.
and the affiant can be held liable for making The Supreme Court acquitted him because the
such false statement. The oath required refers public officers are required to follow the search
to the truth of the facts within the personal warrant to the letter. They have no discretion
knowledge of the applicant and his witnesses. on the matter. Plain view doctrine is
inapplicable since it presupposes that the
officer was legally entitled to be in the place
ABUSE IN THE SERVICE OF WARRANT OR where the effects where found. Since the entry
EXCEEDING AUTHORITY OR USING was illegal, plain view doctrine does not apply.
UNNECESSARY SEVERITY IN EXECUTING
A SEARCH WARRANT LEGALLY  Malicious warrant. Example. X was a
PROCURED respondent of a search warrant for illegal
possession of firearms. A return was made.
ELEMENTS: The gun did not belong to X and the
a. That the offender is a public officer witness had no personal knowledge that
or employee there is a gun in that place.
 CRIMINAL LAW II ACJUCO 21

 Abuse examples: Article 130 has no application to search and

a. X owner was handcuffed while search seizure made on moving vehicles because the
was going-on. application of this law is limited to dwelling and
personal properties such as papers and effects
b. Tank was used to ram gate prior to found therein.
announcement that a search will be
made There are searches and seizures which are
The search warrant is not a license authorized by law and which can be done
to commit destruction. without the attendance of witnesses. For
instance, the Tariff and Customs Code
c. Persons who were not respondents authorizes persons with police authority under
were searched. Sec. 2203, to enter; pass through or search
Article 130 any land, enclosure, warehouse, store or
SEARCHING DOMICILE WITHOUT building, not being used as a dwelling house;
WITNESSES and to inspect, search and examine any vessel
or aircraft, and any trunk, package, box or
 ELEMENTS : envelope, or any person on board, or to stop
a. That the offender is a public officer and search and examine any vehicle, beast or
or employee person suspected of holding or conveying any
dutiable or prohibited article introduced into the
b. That he is armed with a search Philippines contrary to law.
warrant legally procured

c. That he searches the domicile, Article 131

papers or other belongings of any PROHIBITION, INTERRUPTION, AND
person DISSOLUTION OF PEACEFUL MEETINGS

d. That the owner, or any member of his  ELEMENTS:

family, or two witnesses residing in a. Offender is a public officer or
the same locality are not present employee

 Order of those who must witness the b. He performs any of the ff. acts:
search:
1. Prohibiting or interrupting,
a. Homeowner without legal ground the holding
of a peaceful meeting, or
b. Members of the family of sufficient age dissolving the same (e.g. denial of
and discretion permit in arbitrary manner).

c. Responsible members of the community 2. Hindering any person from joining

(can’t be influenced by the searching any lawful association or from
party) attending any of its meetings.

 Validity of the search warrant can be  prohibiting or hindering any person from
questioned only in 2 courts: 1) where addressing, either alone or together with
issued or 2) where the case is pending. others, any petition to the authorities for the
Latter is preferred for objective correction of abuses or redress of
determination. grievances
 CRIMINAL LAW II ACJUCO 22

Two criteria to determine whether Article  But stopping the speaker who was
131 would be violated: attacking certain churches in public meeting
is a violation of this article
(1) Dangerous tendency rule – applicable in
times of national unrest such as to  Prohibition must be without lawful cause or
prevent coup d’etat. without lawful authority

(2) Clear and present danger rule – applied  Those holding peaceful meetings must
in times of peace. Stricter rule. comply with local ordinances. Example:
Ordinance requires permits for meetings in
 If the offender is a private individual, the public places. But if police stops a meeting
crime is disturbance of public order (Art in a private place because there’s no
153) permit, officer is liable for stopping the
meeting.
 Meeting must be peaceful and there is no
legal ground for prohibiting, dissolving or Distinctions between prohibition, interruption,
interrupting that meeting or dissolution of peaceful meetings under
Article 131, and tumults and other
 If in the course of the assembly the disturbances, under Article 153
participants commit illegal acts like oral
defamation or inciting to sedition, a public (1) As to the participation of the public
officer or law enforcer can stop or dissolve officer
the meeting. The permit given is not a
license to commit a crime. In Article 131, the public officer is not a
participant. As far as the gathering is
 Meeting is subject to regulation concerned, the public officer is a third
party.
If the permit is denied arbitrarily, Article 131 is
violated. If the officer would not give the permit If the public officer is a participant of the
unless the meeting is held in a particular place assembly and he prohibits, interrupts, or
which he dictates defeats the exercise of the dissolves the same, Article 153 is
right to peaceably assemble, Article 131 is violated if the same is conducted in a
violated. public place.

 Offender must be a stranger, not a (2) As to the essence of the crime

participant, in the peaceful meeting;
otherwise, it’s unjust vexation In Article 131, the offender must be a
public officer and, without any legal
 Interrupting and dissolving a meeting of the ground, he prohibits, interrupts, or
municipal council by a public officer is a dissolves a peaceful meeting or
crime against the legislative body, not assembly to prevent the offended party
punishable under this article from exercising his freedom of speech
and that of the assembly to petition a
 The person talking on a prohibited subject grievance against the government.
at a public meeting contrary to agreement
that no speaker should touch on politics In Article 153, the offender need not be
may be stopped a public officer. The essence of the
crime is that of creating a serious
disturbance of any sort in a public office,
 CRIMINAL LAW II ACJUCO 23

public building or even a private place a. That the acts complained of were
where a public function is being held. performed –

1. in a place devoted to religious

Article 132 worship, or (for this element, no
INTERRUPTION OF RELIGIOUS WORSHIP need of religious ceremony, only the
place is material)
 ELEMENTS: 2. during the celebration of any
a. That the officer is a public officer or religious ceremony
employee
b. That the acts must be notoriously
b. That religious ceremonies or offensive to the feelings of the
manifestations of any religion are faithful (deliberate intent to hurt the
about to take place or are going on feelings)

c. That the offender prevents or c. The offender is any person

disturbs the same
d. There is a deliberate intent to hurt the
 Circumstance qualifying the offense: if feelings of the faithful, directed
committed with violence or threats against religious tenet

 Reading of Bible and then attacking certain  If in a place devoted to religious purpose,
churches in a public plaza is not a there is no need for an ongoing religious
ceremony or manifestation of religion, but ceremony
only a meeting of a religious sect. But if
done in a private home, it’s a religious  Example of religious ceremony (acts
service performed outside the church). Processions
and special prayers for burying dead
 Religious Worship: people in the act of persons but NOT prayer rallies
performing religious rites for a religious
ceremony; a manifestation of religion. Ex.  Acts must be directed against religious
Mass, baptism, marriage practice or dogma or ritual for the purpose
of ridicule, as mocking or scoffing or
 X, a private person, boxed a priest while the attempting to damage an object of religious
priest was giving homily and while the latter veneration
was maligning a relative of X. Is X liable? X
may be liable under Art 133 because X is a  There must be deliberate intent to hurt the
private person. feelings of the faithful, mere arrogance or
rudeness is not enough
 When priest is solemnizing marriage, he is
a person in authority, although in other In determining whether an act is offensive to
cases, he’s not. the feelings of the faithful, the same must be
viewed or judged from the standpoint of the
offended religion and not from the point of view
Article 133 of the offender (People vs. Baes, 68 Phil.
OFFENDING RELIGIOUS FEELINGS 203).

 ELEMENTS:
CRIME Nature of Who are If
 CRIMINAL LAW II ACJUCO 24

Crime Liable Element

Missing 6. Conspiracy to commit sedition (Art.
Prohibition, Crime against Public If not by
141);
Interruption the officers, public
and fundamental Outsiders officer =
Dissolution law of the tumults 7. Inciting to sedition (Art. 142);
of Peaceful state
Meeting (131) 8. Acts tending to prevent the meeting of
Interruption Crime against Public If by Congress and similar bodies (Art. 143);
of Religious the officers, insider =
Worship (132) fundamental Outsiders unjust
law of the vexation 9. Disturbance of proceedings of Congress
state If not or similar bodies (Art. 144);
religious
= tumult 10. Violation of parliamentary immunity (Art.
or alarms
If not 145);
notoriousl
y 11. Illegal assemblies (Art. 146);
offensive
= unjust 12. Illegal associations (Art. 147);
vexation
Offending the Crime against Public If not
Religious public order officers, tumults = 13. Direct assaults (Art. 148);
Feeling (133) private alarms
persons, and 14. Indirect assaults (Art. 149);
outsiders scandal
If
meeting 15. Disobedience to summons issued by
illegal at Congress, its committees, etc., by the
onset = constitutional commissions, its
inciting to committees, etc. (Art. 150);
sedition
or
rebellion 16. Resistance and disobedience to a
person in authority or the agents of such
person (Art. 151);

TITLE THREE 17. Tumults and other disturbances of public

CRIMES AGAINST PUBLIC ORDER order (Art. 153);

Crimes against public order 18. Unlawful use of means of publication

and unlawful utterances (Art. 154);
1. Rebellion or insurrection (Art. 134);
19. Alarms and scandals (Art. 155);
Coup d’ etat (Art. 134-A)
20. Delivering prisoners from jails (Art. 156);
2. Conspiracy and proposal to commit
rebellion (Art. 136); 21. Evasion of service of sentence (Art.
157);
3. Disloyalty to public officers or
employees (Art. 137); 22. Evasion on occasion of disorders (Art.
158);
4. Inciting to rebellion (Art. 138);
23. Violation of conditional pardon (Art.
5. Sedition (Art. 139); 159); and
 CRIMINAL LAW II ACJUCO 25

for which they have been

24. Commission of another crime during appropriated (Note: “diverting public
service of penalty imposed for another funds” is malversation absorbed in
previous offense (Art. 160). rebellion);

4. Any person merely participating or

Article 134 executing the command of others in
REBELLION OR INSURRECTION rebellion
 ELEMENTS:
a. That there be – The essence of this crime is a public uprising
with the taking up of arms. It requires a
1. public uprising and multitude of people. It aims to overthrow the
duly constituted government. It does not
2. taking arms against the require the participation of any member of the
government (force/violence) military or national police organization or public
officers and generally carried out by civilians.
b. That the purpose of the uprising or Lastly, the crime can only be committed
movement is either through force and violence.

1. To remove from the allegiance to The crime of rebellion cannot be committed by

said government or its laws – a single individual. Invariably, it is committed by
4 several persons for the purpose of
5 i. the territory of the Philippines overthrowing the duly constituted or organized
or any part thereof, or government. In the Philippines, what is known
6 to the ordinary citizen as a symbol of
7 ii. anybody of land, naval or other Government would be the barangay,
armed forces, or represented by its officials; the local
government represented by the provincial and
2 To deprive the chief executive or municipal officials; and the national
congress, wholly or partially, of government represented by the President, the
any of their powers or Chief Justice and the Senate President and the
prerogatives Speaker of the House of Representatives.

 Persons liable for rebellion  Success is immaterial, purpose is always

a. Any person who: 1. promotes political
2. Maintains, or
3. Heads a rebellion The crime of rebellion is essentially a political
or insurrection; or crime. The intention of the rebel is to substitute
himself in place of those who are in power. His
b. Any person who, while holding any method of placing himself in authority with the
public office or employment, takes part use of violence, duress or intimidation,
therein by: assassination or the commission of common
1. engaging in war against the forces of crimes like murder, kidnapping, arson, robbery
the government and other heinous crimes in what we call
rebellion.
2. destroying property or committing
serious violence  Rebellion used where the object of the
movement is completely to overthrow and
3. exacting contributions or diverting supersede the existing government
public funds from the lawful purpose
 CRIMINAL LAW II ACJUCO 26

 Insurrection refers to a movement which  Mere giving of aid or comfort is not criminal
seeks merely to effect some change of in the case of rebellion. Merely
minor importance to prevent the exercise of sympathizing is not participation, there must
gov’t authority w/ respect to particular be ACTUAL participation
matters or subjects
There must be a public apprising and
 The phrase “to remove allegiance from the taking up of arms for the specified purpose or
government’ is used to emphasize that the purposes mentioned in Article 134. The acts of
object of the uprising could be limited to the accused who is not a member of the
certain areas, like isolating a barangay or Hukbalahap organization of sending cigarettes
municipality or a province in its loyalty to and food supplies to a Huk leader; the
the duly constituted government or the changing of dollars into pesos for a top level
national government. communist; and the helping of Huks in opening
accounts with the bank of which he was an
Allegiance is a generic term which includes official, do not constitute Rebellion. (Carino
loyalty, civil obedience and civil service. vs. People, et al., 7 SCRA 900).

The law on rebellion however, does not speak  Not necessary that there is killing, mere
only of allegiance or loss of territory. It also threat of removing Phil is sufficient
includes the efforts of the rebel to deprive the
President of the Philippines of the exercise of Rebellion may be committed even without a
his power to enforce the law, to exact single shot being fired. No encounter needed.
obedience of laws and regulations duly Mere public uprising with arms enough.
enacted and promulgated by the duly
constituted authorities.  Rebellion cannot be complexed with any
other crime.
 Actual clash of arms w/ the forces of the
gov’t, not necessary to convict the accused Common crimes perpetrated in furtherance of
who is in conspiracy w/ others actually a political offense are divested of their
taking arms against the gov’t character as “common” offenses and assume
the political complexion of the main crime
 Purpose of the uprising must be shown but which they are mere ingredients, and
it is not necessary that it be accomplished consequently, cannot be punished separately
from the principal offense, or complexed with
 A change of government w/o external the same.
participation

 RISING PUBLICLY and TAKING ARMS

AGAINST GOVERNMENT – actual
participation. If there is no public uprising,
the crime is of direct assault.

When any of the objectives of rebellion is

pursued but there is no public uprising in the
legal sense, the crime is direct assault of the
first form. But if there is rebellion, with public
uprising, direct assault cannot be committed.
 CRIMINAL LAW II ACJUCO 27

that precludes the application of Article 48 of

ORTEGA OPINION: the Revised Penal Code thereto. In the eyes
of the law then, said acts constitute only one
Rebellion can now be complexed with crime and that is rebellion. The Hernandez
common crimes. Not long ago, the doctrine was reaffirmed in Enrile v. Salazar
Supreme Court, in Enrile v. Salazar, 186 because the text of Article 135 has remained
SCRA 217, reiterated and affirmed the the same as it was when the Supreme Court
rule laid down in People v. Hernandez, resolved the same issue in the People v.
99 Phil 515, that rebellion may not be Hernandez. So the Supreme Court invited
complexed with common crimes which attention to this fact and thus stated:
are committed in furtherance thereof
because they are absorbed in rebellion. “There is a an apparent need to restructure the
In view of said reaffirmation, some law on rebellion, either to raise the penalty
believe that it has been a settled doctrine therefore or to clearly define and delimit the
that rebellion cannot be complexed with other offenses to be considered absorbed
common crimes, such as killing and thereby, so that it cannot be conveniently
destruction of property, committed on the utilized as the umbrella for every sort of illegal
occasion and in furtherance thereof. activity undertaken in its name. The court has
no power to effect such change, for it can only
This thinking is no longer correct; there is no interpret the law as it stands at any given time,
legal basis for such rule now. and what is needed lies beyond interpretation.
Hopefully, Congress will perceive the need for
The statement in People v. Hernandez that promptly seizing the initiative in this matter,
common crimes committed in furtherance of which is purely within its province.”
rebellion are absorbed by the crime of
rebellion, was dictated by the provision of Obviously, Congress took notice of this
Article 135 of the Revised Penal Code prior to pronouncement and, thus, in enacting Republic
its amendment by the Republic Act No. 6968 Act No. 6968, it did not only provide for the
(An Act Punishing the Crime of Coup D’etat), crime of coup d’etat in the Revised Penal Code
which became effective on October 1990. but moreover, deleted from the provision of
Prior to its amendment by Republic Act No. Article 135 that portion referring to those –
6968, Article 135 punished those “who while
holding any public office or employment, take “…who, while holding any public office or
part therein” by any of these acts: engaging in employment takes part therein [rebellion or
war against the forces of Government; insurrection], engaging in war against the
destroying property; committing serious forces of government, destroying property or
violence; exacting contributions, diverting funds committing serious violence, exacting
for the lawful purpose for which they have been contributions or diverting public funds from the
appropriated. lawful purpose for which they have been
appropriated …”
Since a higher penalty is prescribed for the
crime of rebellion when any of the specified Hence, overt acts which used to be punished
acts are committed in furtherance thereof, said as components of the crime of rebellion have
acts are punished as components of rebellion been severed therefrom by Republic Act No.
and, therefore, are not to be treated as distinct 6968. The legal impediment to the application
crimes. The same acts constitute distinct of Article 48 to rebellion has been removed.
crimes when committed on a different occasion After the amendment, common crimes
and not in furtherance of rebellion. In short, it involving killings, and/or destructions of
was because Article 135 then punished said property, even though committed by rebels in
acts as components of the crime of rebellion furtherance of rebellion, shall bring about
 CRIMINAL LAW II ACJUCO 28

complex crimes of rebellion with  Person deemed leader of rebellion in case

murder/homicide, or rebellion with robbery, or he is unknown:
rebellion with arson as the case may be. Any person who in fact:
a. directed the others
To reiterate, before Article 135 was amended, a b. spoke for them
higher penalty is imposed when the offender c. signed receipts and other
engages in war against the government. "War" documents issued in their
connotes anything which may be carried out in name
pursuance of war. This implies that all acts of d. performed similar acts on
war or hostilities like serious violence and behalf of the rebels
destruction of property committed on occasion
and in pursuance of rebellion are component Distinctions between rebellion and sedition
crimes of rebellion which is why Article 48 on
complex crimes is inapplicable. In amending (1) As to nature
Article135, the acts which used to be
component crimes of rebellion, like serious In rebellion, there must be taking up or
acts of violence, have been deleted. These arms against the government.
are now distinct crimes. The legal obstacle for
the application of Article 48, therefore, has In sedition, it is sufficient that the public
been removed. Ortega says legislators want to uprising be tumultuous.
punish these common crimes independently of
rebellion. Ortega cites no case overturning (2) As to purpose
Enrile v. Salazar.
In rebellion, the purpose is always
 However, illegal possession of firearms in political.
furtherance of rebellion is distinct from the
crime of rebellion. In sedition, the purpose may be political
or social. Example: the uprising of squatters
The offense of illegal possession of firearm is a against Forbes park residents. The purpose in
malum prohibitum, in which case, good sedition is to go against established
faith and absence of criminal intent are government, not to overthrow it.
not valid defenses.

 Furthermore, it is a continuing crime such Article 134-A

along with the crime of conspiracy or COUP D’ ETAT
proposal to commit such
 A private crime may be committed during  ELEMENTS:
rebellion. Examples: killing, possessions of a. Swift attack
firearms, illegal association are absorbed.
Rape, even if not in furtherance of rebellion b. Accompanied by violence,
cannot be complexed intimidation, threat, strategy or stealth

 If killing, robbing were done for private c. Directed against:

purposes or for profit, without any political
motivation, the crime would be separately 1. duly constituted authorities
be punished and would not be embraced by
rebellion (People v. Fernando) 2. any military camp or
installation
 CRIMINAL LAW II ACJUCO 29

3. communication networks or Rebellion is committed by any person whether

public utilities a private individual or a public officer whereas
in coup d’etat, the offender is a member of the
4. other facilities needed for the military or police force or holding a public office
exercise and continued or employment.
possession of power
In rebellion, the object is to alienate the
d. Singly or simultaneously carried out allegiance of a people in a territory, whether
anywhere in the Philippines wholly or partially, from the duly constituted
government; in coup d’etat, the object or
d. Committed by any person or purpose is to seize or diminish state power.
persons belonging to the
military or police or holding In both instances, the offenders intend to
any public office or substitute themselves in place of those who
employment; with or without are in power.
civilian support or
participation Treason (114) Rebellion
(134)
Coup
d’etat
Sedition
(139)
(134-A)
e. With or without civilian Nature Crime against Crime Crime Crime
National against against against
support or participation Security Public Public Public Order
Order Order
Overt levying war Public See article. Rising
f. Purpose of seizing or against the uprising publicly or
diminishing state power gov’t; AN tumultuously
OR D (caused by
adherence Taking up more than 3
The essence of the crime is a swift attack upon and giving aid arms armed men
or comfort to against or provided
the facilities of the Philippine government, enemies the gov’t with means
military camps and installations, of violence)
Purpose Deliver the See Seizing or See
communication networks, public utilities and of gov’t to enemy article. diminishing enumeration
facilities essential to the continued possession objectiv during war state in article.
e power.
of governmental powers. It may be committed
singly or collectively and does not require a
multitude of people.
Article 135
PENALTIES
 The objective may not be to overthrow the
government but only to destabilize or
 Who are liable?
paralyze the government through the
a. Any person who:
seizure of facilities and utilities essential to
1. Promotes
the continued possession and exercise of
2. Maintains
governmental powers. It requires as
3. heads a rebellion or insurrection
principal offender a member of the AFP or
of the PNP organization or a public officer
b. Any person who, while holding any
with or without civilian support. Finally, it
public office or employment, takes part
may be carried out not only by force or
therein
violence but also through stealth, threat or
1. engaging in war against the forces of
strategy.
the gov’t
How do you distinguish between coup
2. destroying property or committing
d’etat and rebellion?
serious violence
 CRIMINAL LAW II ACJUCO 30

3. exacting contributions or diverting nature of continuing crimes ( Umil vs.

public funds from the lawful purpose Ramos).
for which they have been
appropriated d. Killing, robbing etc for private persons or
for profit, without any political
c. Any person merely participating or motivation, would be separately
executing the command of other in a punished and would not be absorbed in
rebellion the rebellion.

When conspiracy is present in the commission of

the crime, the act of one is the act of all. In Article 136
committing rebellion and coup d’etat, even if CONSPIRACY TO COMMIT COUP D’ ETAT,
conspiracy as a means to commit the crime is REBELLION OR INSURRECTION
established, the principal of criminal liability under
Article 17 of the Revised Penal Code is not
followed.  ELEMENTS:
In Government Not in Government a. 2 more persons come to an
Service Service agreement to rise publicly and take
Anyone who leads, Anyone who participates arms against the government
directs, commands or in an manner,
others to undertake a supports, finances, b. For any of the purposes of rebellion
coup. abets, aids in a coup.
c. They decide to commit it
 Serious violence is that inflicted upon
civilians, which may result in homicide. It is
not limited to hostilities against the armed
force.

 Diverting public funds is malversation

absorbed in rebellion

NOTES: PROPOSAL TO COMMIT COUP D’ ETAT,

a. Public officer must take active part REBELLION OR INSURRECTION (136)
because mere silence or omission not
punishable in rebellion  ELEMENTS:

b. It is not a defense in rebellion that the a. A person who has decided to rise
accused never took the oath of publicly and take arms the
allegiance to, or that they never government
recognized the government
b. For any of the purposes of rebellion
c. Rebellion cannot be complexed with
murder and other common crimes c. Proposes its execution to some other
committed in pursuance of the person/s
movement to overthrow the government
 Organizing a group of soldiers, soliciting
Subversion, just like the crimes of rebellion, membership in, and soliciting funds for the
conspiracy or proposal to commit the crimes of organization show conspiracy to overthrow
rebellion or subversion and crimes or offenses the gov’t
committed in furtherance thereof constitute
direct assaults against the State and are in the
 CRIMINAL LAW II ACJUCO 31

 The mere fact of giving and rendering d’etat is a crime that should be classified as a
speeches favoring Communism would not crime committed by public officers like
make the accused guilty of conspiracy if malversation, bribery, dereliction of duty and
there’s no evidence that the hearers then violations of the anti-Graft and Corrupt
and there agreed to rise up in arms against Practices Act.
the gov’t
If the public officer or employee, aside from
 Conspiracy must be immediately prior to being disloyal, does or commits acts
rebellion constituting the crime of rebellion or coup
d’etat, he will no longer be charged for the
 If it is during the rebellion, then it is already simple crime of disloyalty but he shall be
taking part in it. proceeded against for the grave offense of
rebellion or coup d’etat.

Article 137
DISLOYALTY OF PUBLIC OFFICERS AND Article 138
EMPLOYEES INCITING TO REBELLION OR
INSURRECTION
 ACTS PUNISHED:
a. Failing to resist rebellion by all the  ELEMENTS:
means in their power a. That the offender does not take arms
or is not in open hostility against the
b. Continuing to discharge the duties of government
their offices under the control of
rebels b. That he incites others to the
execution of any of the acts of
c. Accepting appointment to office rebellion
under rebels
c. That the inciting is done by means of
 Presupposes existence of rebellion speeches, proclamations, writings,
emblems, banners or other
 Must not be in conspiracy with rebels or representations tending to the same
coup plotters end

 If there are means to prevent the rebellion  Intentionally calculated to seduce others to
but did not resist it, then there’s disloyalty. If rebellion
there are no means, no fault
 There must be uprising to take up arms and
 If position is accepted in order to protect the rise publicly for the purposes indicated in
people, not covered by this Art 134

 The collaborator must not have tried to One who promotes, maintains or heads a
impose the wishes of the rebels on the rebellion and who act at the same time incites
people. or influences others to join him in his war
efforts against the duly constituted government
Disloyalty as a crime is not limited to rebellion cannot be held criminally liable for the crime of
alone but should now include the crime of coup inciting to rebellion because, as the principal to
d’etat. Rebellion is essentially a crime the crime of rebellion, the act of inciting to
committed by private individuals while coup
 CRIMINAL LAW II ACJUCO 32

commit a rebellion is inherent to the graver property of any public officer or

crime of rebellion. employee

Proposal to Commit Inciting to Rebellion 4. to commit for any political or

Rebellion (136) (138) social end, any act of hate or
The person who Not required that the revenge against private persons
proposes has decided to offender has decided to or any social class (hence, even
commit rebellion. commit rebellion. private persons may be offended
The person who The inciting is done parties)
proposes the execution publicly.
of the crime uses secret
means. 5. to despoil, for any political or
social end, any person,
municipality or province, or the
Article 139 national government of all its
SEDITION property or any part thereof

 ELEMENTS:  Sedition: raising of commotion or

a. That the offenders rise – disturbances in the State. Its ultimate object
is a violation of the public peace or at least
1. Publicly (if no public uprising = such measures that evidently engenders it.
tumult and other disturbance of
public order)  The crime of sedition is committed by rising
publicly and tumultuously. The two
2. Tumultuously (vis-à-vis rebellion elements must concur.
where there must be a taking of
arms)  The crime of sedition does not contemplate
the taking up of arms against the
b. That they employ force, intimidation, government because the purpose of this
or other means outside of legal crime is not the overthrow of the
methods government. Notice from the purpose of
the crime of sedition that the offenders rise
c. That the offenders employ any of publicly and create commotion and
those means to attain any of the disturbance by way of protest to express
following objects: their dissent and obedience to the
government or to the authorities concerned.
1. to prevent the promulgation or This is like the so-called civil disobedience
execution of any law or the except that the means employed, which is
holding of any popular election violence, is illegal.

2. to prevent the national  Difference from rebellion – object or

government, or any provincial or purpose of the uprising.
municipal government, or any
public thereof from freely For sedition – sufficient that uprising is
exercising its or his functions, or tumultuous. In rebellion – there must be
prevent the execution of any taking up of arms against the government.
administrative order
Sedition – purpose may be either political
3. to inflict any act or hate or or social. In rebellion – always political
revenge upon the person or
 CRIMINAL LAW II ACJUCO 33

“Tumultuous” is a situation wherein the meantime, the participants have

disturbance or confusion is caused by at least encroached or stayed in the domain or
four persons. There is no requirement that the realm of criminal law.
offenders should be armed.
 Preventing public officers from freely Article 141.
exercising their functions Conspiracy to Commit Sedition

 In sedition – offender may be a private or In this crime, there must be an agreement and
public person (Ex. Soldier) a decision to rise publicly and tumultuously to
attain any of the objects of sedition.
 Public uprising and the object of sedition
must concur There is no proposal to commit sedition.

 Q: Are common crimes absorbed in The conspiracy must be to prevent the

sedition? promulgation or execution of any law or the
holding of any popular election. It may also be
In P v. Umali, SC held that NO. Crimes a conspiracy to prevent national and local
committed in that case were independent of public officials from freely exercising their
each other. duties and functions, or to prevent the
execution of an administrative order.
 Preventing election through legal means –
NOT sedition
Article 142
 But when sugar farmers demonstrated and INCITING TO SEDITION
destroyed the properties of sugar barons –
sedition  ELEMENTS:
a. That the offender does not take a
 Persons liable for sedition: direct part in the crime of sedition
a. leader of the sedition, and
b. That he incites others to the
b. other persons participating in the accomplishment of any of the acts
sedition which constitute sedition (134)

The objective of the law in criminalizing c. That the inciting is done by means of
sedition is to put a limit to the freedom of speeches, proclamations, writing,
expression or the right of the people to emblems, cartoons, banners, or other
assemble and petition the government for representations tending to the same
redress of grievance. end (purpose: cause commotion not
exactly against the government; actual
disturbance not necessary)
 The demonstrations conducted or held by
the citizenry to protest certain policies of the  Different acts of inciting to sedition:
government is not a crime. But when the a. Inciting others to the accomplishment of
protest in manifested in the form of rallies any of the acts which constitute sedition
where the participants, in order to attain by means of speeches, proclamations,
their objective of overcoming the will of the writings, emblems etc.
government, resort to force or violence, the
mantle of protection guaranteed under the b. Uttering seditious words or speeches
Constitution to express their dissent which tend to disturb the public peace or
peacefully, shall cease to exist, as in the writing, publishing, or circulating
scurrilous [vulgar, mean, libelous] libels
 CRIMINAL LAW II ACJUCO 34

against the government or any of the CRIMES AGAINST POPULAR

duly constituted authorities thereof, REPRESENTATION
which tend to disturb the public peace
Article 143
c. Knowingly concealing such evil ACTS TENDING TO PREVENT THE
practices MEETING OF CONGRESS AND SIMILAR
BODIES
 When punishable:
a. when they tend to disturb or obstruct  ELEMENTS:
any lawful officer in executing the a. That there be a projected or actual
functions of his office; or meeting of Congress or any of its
committees or subcommittees,
b. when they tend to instigate others to constitutional commissions or
cabal and meet together for unlawful committees or division thereof, or of
purposes; or any provincial board or city or
municipal council or board
c. when they suggest or incite rebellious
conspiracies or riots; or b. That the offender who may be any
persons prevents such meeting by
d. when they lead or tend to stir up the force or fraud
people against the lawful authorities or
to disturb the peace of the community, The crime is against popular representation
the safety and order of the government because it is directed against officers whose
primary function is to meet and enact laws.
Only non-participant in sedition may be liable. When these legislative bodies are prevented
from meeting and performing their duties, the
Inciting to sedition is an element of sedition. It system of government is disturbed. The three
cannot be treated as a separate offense branches of government must continue to exist
against one who is a part of a group that rose and perform their duties.
up publicly and tumultuously and fought the
forces of government.  Chief of Police and mayor who prevented
the meeting of the municipal council are
Considering that the objective of sedition is to liable under Art 143, when the defect of the
express protest against the government and in meeting is not manifest and requires an
the process creating hate against public investigation before its existence can be
officers, any act that will generate hatred determined.
against the government or a public officer
concerned or a social class may amount to
Inciting to sedition. Article 142 is, therefore, Article 144
quite broad. DISTURBANCE OF PROCEEDINGS

The mere meeting for the purpose of  ELEMENTS:

discussing hatred against the government is a. That there be a meeting of Congress
inciting to sedition. Lambasting government or any of its committees,
officials to discredit the government is Inciting constitutional commissions or
to sedition. But if the objective of such committees or divisions thereof, or of
preparatory actions is the overthrow of the any provincial board or city or
government, the crime is inciting to rebellion. municipal council or board
 CRIMINAL LAW II ACJUCO 35

b. That the offender does any of the Elements:

following acts 1. That the offender is a public
officer or employee
1. He disturbs any of such meetings
2. That he arrests or searches any
2. He behaves while in the presence member of Congress
of any such bodies in such a
manner as to interrupt its 3. That Congress, at the time of
proceedings or to impair the arrest or search, is in a regular or
respect due it special session

The disturbance can be in the form of 4. That the member searched has
utterances, speeches or any form of not committed a crime punishable
expressing dissent which is not done under the code by a penalty
peacefully but implemented in such a way that higher than prision mayor (1987
it substantially interrupts the meeting of the constitution: privilege from arrest
assembly or adversely affects the respect due while congress in session in all
to the assembly of its members. offenses punishable by not more
than 6 years imprisonment).
 Complaint must be filed by member of the
Legislative body. Accused may also be Under Section 11, Article VI of the Constitution,
punished for contempt. a public officer who arrests a member of
Congress who has committed a crime
punishable by prision mayor (six years and one
Article 145 day, to 12 years) is not liable Article 145.
VIOLATION OF PARLIAMENTARY IMMUNITY
According to Reyes, to be consistent with the
 Acts punishable: Constitution, the phrase "by a penalty higher
a. By using force, intimidation, threats, than prision mayor" in Article 145 should be
or frauds to prevent any member of amended to read: "by the penalty of prision
Congress from – mayor or higher."

1. attending the meeting of the The offender is any person and the offended
assembly or any of its party who is a member of Congress, has not
committees, constitutional committed any crime to justify the use of force,
commissions or committees or threat, intimidation or fraud to prevent him from
divisions thereof, or from attending the meeting of Congress.

2. expressing his opinions or

ILLEGAL ASSEMBLIES AND
3. casting his vote ASSOCIATIONS

b. By arresting or searching any Article 146

member thereof while Congress is in ILLEGAL ASSEMBLIES
a regular or special session, except
in case such member has committed  Two (2) Types of illegal assemblies:
a crime punishable under the code
by a penalty higher than prision a. Meeting of the first form
mayor ( 6 years up )
 CRIMINAL LAW II ACJUCO 36

1. Meeting, gathering or group of b. considered as leader or organizer of the

persons whether in a fixed place or meeting
moving
Those who incite the audience, by means of
2. purpose : to commit any of crimes speeches, printed matters, and other
punishable under the code representation, to commit treason, rebellion or
insurrection, sedition or assault a person in
3. meeting attended by armed persons authority, shall be deemed leaders or
organizers of said meeting.
b. Meeting of the second form
 The gravamen of the offense is mere
1. Meeting, gathering or group of assembly of or gathering of people for
persons whether in a fixed place or illegal purpose punishable by the Revised
moving Penal Code. Without gathering, there is no
illegal assembly. If unlawful purpose is a
2. Audience whether armed or not, is crime under a special law, there is no illegal
incited to the commission of the assembly. For example, the gathering of
crime of treason, rebellion or drug pushers to facilitate drug trafficking is
insurrection, sedition or direct not illegal assembly because the purpose is
assault. not violative of the Revised Penal Code but
of The Dangerous Drugs Act of 1972, as
 Not all the persons present at the meeting amended, which is a special law.
of the first form of illegal assembly must be
armed Two forms of illegal assembly

 Persons liable for illegal assembly (1) No attendance of armed men, but
a. the organizers or leaders of the meeting persons in the meeting are incited to
commit treason, rebellion or
b. persons merely present at the meeting insurrection, sedition or assault upon a
(except when presence is out of person in authority. When the illegal
curiosity – not liable) purpose of the gathering is to incite
people to commit the crimes mentioned
 Responsibility of persons merely above, the presence of armed men is
present at the meeting unnecessary. The mere gathering for
the purpose is sufficient to bring about
a. if they are not armed, penalty is arresto the crime already.
mayor
(2) Armed men attending the gathering – If
b. if they carry arms, like bolos or knives, the illegal purpose is other than those
or licensed firearms, penalty is prision mentioned above, the presence of
correccional armed men during the gathering brings
about the crime of illegal assembly.
 Presumptions if person present at the
meeting carries an unlicensed firearm: Example: Persons conspiring to rob a
bank were arrested. Some were with
a. purpose of the meeting is to commit acts firearms. Liable for illegal assembly, not
punishable under the RPC for conspiracy, but for gathering with
armed men.
 CRIMINAL LAW II ACJUCO 37

Distinction between illegal assembly and are punished membership in the

illegal association association
Persons liable: leaders Founders, directors,
In illegal assembly, the basis of liability is the and those present president and members
gathering for an illegal purpose which
constitutes a crime under the Revised Penal Public morals refers to crimes punished under
Code. Title Six of the Revised Penal Code, namely,
gambling, grave scandal, prostitution and
In illegal association, the basis is the formation vagrancy.
of or organization of an association to engage
in an unlawful purpose which is not limited to a
violation of the Revised Penal Code. It ASSAULT, RESISTANCE AND
includes a violation of a special law or those DISOBEDIENCE
against public morals. Meaning of public
morals: inimical to public welfare; it has Article 148
nothing to do with decency., not acts of DIRECT ASSAULT
obscenity.
 ELEMENTS OF THE 1ST FORM OF
DIRECT ASSAULT
Article 147 a. That the offender employs force or
ILLEGAL ASSOCIATIONS intimidation.

 ELEMENTS: b. That the aim of the offender is to

a. Organized totally or partially for the attain any of the purposes of the
purpose of committing any of the crime of rebellion or any of the
crimes in RPC objects of the crimes of sedition.
Or (victim need not be person in authority)
b. For some purpose contrary to public
morals c. That there is no public uprising.

 Persons liable: Example of the first form of direct assault:

a. founders, directors and president of the
association Three men broke into a National Food
b. mere members of the association Authority warehouse and lamented sufferings
of the people. They called on people to help
Illegal Assembly (146) Illegal Association themselves to all the rice. They did not even
(147) help themselves to a single grain.
Must be an actual No need for such
meeting of armed The crime committed was direct assault.
persons to commit any of There was no robbery for there was no intent
the crimes punishable to gain. The crime is direct assault by
under the RPC, or of committing acts of sedition under Article 139
individuals who, although (5), that is, spoiling of the property, for any
not armed, are incited to political or social end, of any person
the commission of
municipality or province or the national
treason, rebellion,
sedition or assault upon a government of all or any its property, but there
person in authority of his is no public uprising.
agent.
It is the meeting and the Act of forming or
attendance at such that organizing and
 CRIMINAL LAW II ACJUCO 38

 ELEMENTS OF THE 2ND FORM OF So, where the spirit is present, it is always
DIRECT ASSAULT: complexed with the material consequence of
a. That the offender (a) makes an the unlawful act. If the unlawful act was
attack, (b) employs force, (c) makes a murder or homicide committed under
serious intimidation, or (d) makes a circumstance of lawlessness or contempt of
serious resistance. authority, the crime would be direct assault with
murder or homicide, as the case may be. In
b. That the person assaulted is a the example of the judge who was killed, the
person in authority or his agent. crime is direct assault with murder or homicide.

c. That at the time of the assault the The only time when it is not complexed is when
person in authority or his agent (a) is material consequence is a light felony, that is,
engaged in the actual performance of slight physical injury. Direct assault absorbs
official duties (motive is not essential), the lighter felony; the crime of direct assault
or that he is assaulted (b) by reason can not be separated from the material result
of the past performance of official of the act. So, if an offender who is charged
duties (motive is essential). with direct assault and in another court for the
slight physical Injury which is part of the act,
d. That the offender knows that the one acquittal or conviction in one is a bar to the
he is assaulting is a person in prosecution in the other.
authority or his agent in the exercise
of his duties (with intention to offend,  Hitting the policeman on the chest with fist
injure or assault). is not direct assault because if done against
an agent of a person in authority, the force
e. That there is no public uprising. employed must be of serious character

Crime of direct assault can only be committed  The force employed need not be serious
by means of dolo. It cannot be committed by when the offended party is a person in
culpa. authority (ex. Laying of hands)

 Always complexed with the material  The intimidation or resistance must be

consequence of the act (e.g. direct assault serious whether the offended party is an
with murder) except if resulting in a light agent only or a person in authority (ex.
felony, in which case, the consequence is Pointing a gun)
absorbed
Force Intimidation/Resistance
The crime is not based on the material Employed
consequence of the unlawful act. The crime of Person Need not Serious
direct assault punishes the spirit of in be serious
lawlessness and the contempt or hatred for the Authorit
authority or the rule of law. y
Agent Must be of Serious
serious
To be specific, if a judge was killed while he character
was holding a session, the killing is not the
direct assault, but murder. There could be
 Person in authority: any person directly
direct assault if the offender killed the judge
vested with jurisdiction (power or authority
simply because the judge is so strict in the
to govern and execute the laws) whether as
fulfillment of his duty. It is the spirit of hate
an individual or as a member of some court
which is the essence of direct assault.
 CRIMINAL LAW II ACJUCO 39

or governmental corporation, board or

commission The offender and the offended party are both
public officers. The Supreme Court said that
 A barangay captain is a person in authority, assault may still be committed, as in fact the
so is a Division Superintendent of schools, offender is even subjected to a greater penalty
President of Sanitary Division and a teacher (U.S. vs. Vallejo, 11 Phil. 193).

In applying the provisions of Articles 148 and  When assault is made by reason of the
151, teachers, professors, and persons performance of his duty there is no need for
charged with the supervision of public or duly actual performance of his official duty when
recognized private schools, colleges and attacked
universities and lawyers in the actual
performance of their duties or on the occasion In direct assault of the first form, the stature of
of such performance, shall be deemed a the offended person is immaterial. The crime
person in authority. is manifested by the spirit of lawlessness.

 Agent: is one who, by direct provision of In the second form, you have to distinguish a
law or by election or by appointment by situation where a person in authority or his
competent authority, is charged with the agent was attacked while performing official
maintenance of public order and the functions, from a situation when he is not
protection and security of life and property. performing such functions.
(Example. Barrio councilman and any  If attack was done during the exercise of
person who comes to the aid of the person official functions, the crime is always direct
in authority, policeman, municipal treasurer, assault. It is enough that the offender knew
postmaster, sheriff, agents of the BIR, that the person in authority was performing
Malacañang confidential agent) an official function whatever may be the
reason for the attack, although what may
 Even when the person in authority or the have happened was a purely private affair.
agent agrees to fight, still direct assault.
On the other hand, if the person in authority or
 When the person in authority or the agent the agent was killed when no longer
provoked/attacked first, innocent party is performing official functions, the crime may
entitled to defend himself and cannot be simply be the material consequence of he
held liable for assault or resistance nor for unlawful act: murder or homicide. For the
physical injuries, because he acts in crime to be direct assault, the attack must be
legitimate self-defense by reason of his official function in the past.
Motive becomes important in this respect.
The offended party in assault must not be the Example, if a judge was killed while resisting
aggressor. If there is unlawful aggression the taking of his watch, there is no direct
employed by the public officer, any form of assault.
resistance which may be in the nature of force
against him will be considered as an act of In the second form of direct assault, it is also
legitimate defense. (People vs. Hernandez, important that the offended knew that the
59 Phil. 343) person he is attacking is a person in authority
or an agent of a person in authority, performing
 There can be no assault upon or his official functions. No knowledge, no
disobedience to one authority by another lawlessness or contempt.
when they both contend that they were in
the exercise of their respective duties. For example, if two persons were quarreling
and a policeman in civilian clothes comes and
 CRIMINAL LAW II ACJUCO 40

stops them, but one of the protagonists stabs

the policeman, there would be no direct assault  ELEMENTS:
unless the offender knew that he is a a. That a person in authority or his
policeman. agent is the victim of any of the
forms of direct assault defined in
In this respect it is enough that the offender ART. 148.
should know that the offended party was
exercising some form of authority. It is not b. That a person comes to the aid of
necessary that the offender knows what is such authority or his agent.
meant by person in authority or an agent of
one because ignorantia legis non excusat. c. That the offender makes use of force
or intimidation upon such person
 Circumstances qualifying the offense coming to the aid of the authority or
(Qualified Assault): his agent.
a. when the assault is committed with a
weapon  Indirect assault can be committed only
when a direct assault is also committed
b. when the offender is a public officer or
employee  To be indirect assault, the person who
should be aided is the agent (not the
c. when the offender lays hand upon a person in authority because it is already
person in authority direct assault, the person coming to the aid
of the person in authority being considered
 Complex crime of direct assault with as an agent and an attack on the latter is
homicide or murder, or with serious physical already direct assault). Example. Aiding a
injuries. policeman under attack.

If the crime of direct assault is committed with The victim in indirect assault should be a
the use of force and it resulted in the infliction private person who comes in aid of an agent of
of slight physical injuries, the latter shall not be a person in authority. The assault is upon a
considered as a separate offense. It shall be person who comes in aid of the agent of a
absorbed by the greater crime of direct assault. person in authority. The victim cannot be the
(People vs. Acierto, 57 Phil. 614) person in authority or his agent.

 Direct assault cannot be committed during Take note that under Article 152, as amended,
rebellion. when any person comes in aid of a person in
authority, said person at that moment is no
May direct assault be committed upon a longer a civilian – he is constituted as an agent
private individual? Yes. When a private of the person in authority. If such person were
person comes to the aid of a person in the one attacked, the crime would be direct
authority, and he is likewise assaulted. Under assault
Republic Act No. 1978,
 a private person who comes to the aid of a
person in authority is by fiction of law Article 150
deemed or is considered an agent of a DISOBEDIENCE TO SUMMONS
person in authority.
 Acts punishable:
Article 149 a. refusing without legal excuse to obey
INDIRECT ASSAULT summons
 CRIMINAL LAW II ACJUCO 41

b. That the offender resists or seriously

b. refusing to be sworn or placed under disobeys such person in authority or
affirmation his agent.

c. refusing to answer any legal inquiry c. That the act of the offender is not
to produce books, records etc. included in the provisions of arts.
148, 149 and 150.
d. restraining another from attending as
witness in such body
SIMPLE DISOBEDIENCE (par. 2)
e. inducing disobedience to a summons
or refusal to be sworn  ELEMENTS:
a. That an agent of a person in authority
The act punished is refusal, without legal is engaged in the performance of
excuse, to obey summons issued by the House official duty gives a lawful order to
of Representatives or the Senate. If a the offender.
Constitutional Commission is created, it shall
enjoy the same privilege. b. That the offender disobeys such
agent of a person in authority.
The exercise by the legislature of its contempt
power is a matter of self-preservation, c. That such disobedience is not of a
independent of the judicial branch. The serious nature.
contempt power of the legislature is inherent
and sui generis. US vs. Ramayrat, 22 Phil. 183
The Supreme Court held that: “the
The power to punish is not extended to the  violation does not refer to resistance or
local executive bodies. The reason given is that disobedience to the legal provisions of the
local legislative bodies are but a creation of law law, nor to judicial decisions defining or
and therefore, for them to exercise the power declaring the rights and obligations of the
of contempt, there must be an express grant of parties for the same give reliefs only in the
the same. form of civil actions. Rather, the
disobedience or resistance is to the orders
directly issued by the authorities in the
exercise of their official duties.”

Article 151
RESISTANCE/DISOBEDIENCE TO A Direct Assault (148) Resistant and
PERSON IN AUTHORITY OR THE AGENT Disobedience to a
OF SUCH PERSON (par. 1) Person in Authority or
Agents of such Person
 ELEMENTS: (151)
a. That a person in authority or his PIA or his agent must PIA or his agent must be
be engaged in the in the actual performance
agent is engaged in the performance
performance of official of his duties.
of official duty or gives a lawful order duties or that he is
to the offender. assaulted
Direct assault is Committed by resisting or
 CRIMINAL LAW II ACJUCO 42

committed in 4 ways – seriously disobeying a  Examples of Persons in Authority :

by attacking, PIA or his agent. a. Barangay captain
employing force, and b. Barangay chairman
seriously resisting a c. Municipal mayor
PIA or his agent.
d. Provincial fiscal
Use of force against an Use of force against an
e. Justice of the peace
agent of PIA must be agent of a PIA is not so
serious and deliberate. serious; no manifest f. Municipal councilor
intention to defy the law g. Teachers
and the officers enforcing h. Professors
it. i. Persons charged with the supervision of
public or duly recognized private
In both resistance against an agent of a person schools, colleges and universities
in authority and direct assault by resisting an j. Lawyers in the actual performance of
agent of a person in authority, there is force their professional duties or on the
employed, but the use of force in resistance is occasion of such performance
not so serious, as there is no manifest intention
to defy the law and the officers enforcing it.  Agent of Person in Authority – any
person who, by direct provision of law or by
The attack or employment of force which gives election or by appointment by competent
rise to the crime of direct assault must be authority, is charged with the maintenance
serious and deliberate; otherwise, even a case of public order and the protection and
of simple resistance to an arrest, which always security of life and property.
requires the use of force of some kind, would
constitute direct assault and the lesser offense  Examples of agents of PIA :
of resistance or disobedience in Article 151 a. Barrio councilman
would entirely disappear. b. Barrio policeman
c. Barangay leader
But when the one resisted is a person in d. Any person who comes to the aid of
authority, the use of any kind or degree of force persons in authority
will give rise to direct assault.
 Section 388 of the Local Gov’t Code
If no force is employed by the offender in provides that “for purposes of the RPC, the
resisting or disobeying a person in authority, punong barangay, sangguniang barangay
the crime committed is resistance or serious members and members of the lupong
disobedience under the first paragraph of tagapamayapa in each barangay shall be
Article 151. deemed as persons in authority in their
jurisdictions, while other barangay officials
and members who may be designated by
law or ordinance and charged with the
Article 152 maintenance of public order, protection and
PERSONS IN AUTHORITY/AGENTS OF the security of life, property, or the
PERSONS IN AUTHORITY: maintenance of a desirable and balanced
environment, and any barangay member
 Persons in Authority – any person directly who comes to the aid of persons in
vested with jurisdiction, whether as an authority shall be deemed AGENT of
individual or as a member of some court or persons in authority.
governmental corporation, board or
commission.  When the offended party is a person in
authority and while being assaulted, a
 CRIMINAL LAW II ACJUCO 43

private individual comes to his rescue, such

private individual, by operation of law,  The outcry is merely a public disorder if it is
mutates mutandis becomes an agent of a an unconscious outburst which, although
person in authority. Any assault committed rebellious or seditious in nature, is not
against such person is direct assault, and intentionally calculated to induce others to
not indirect assault. But if the person commit rebellion or sedition, otherwise, its
assaulted is an agent of a person in inciting to rebellion or sedition.
authority, and a private individual comes to
his rescue and is himself assaulted while  This article should be distinguished from
giving the assistance, as earlier discussed, inciting to rebellion or sedition as discussed
the crime committed is indirect assault. under Article 138 and 142. In the former,
the meeting is legal and peaceful. It
becomes unlawful only because of the
CRIMES AGAINST PUBLIC DISORDERS outcry made, which tends to incite rebellion
or sedition in the meeting. In the latter case,
Article 153 the meeting is unlawful from the beginning
TUMULTS AND OTHER DISTURBANCES OF and the utterances made are deliberately
PUBLIC ORDER articulated to incite others to rise publicly
and rebel against the government. What
 TYPES: makes it inciting to rebellion or sedition is
a. Causing any serious disturbance in a the act of inciting the audience to commit
public place, office or establishment rebellion or sedition.

b. Interrupting or disturbing public  Tumultuous – if caused by more than 3

performances, functions, gatherings persons who are armed or provided with
or peaceful meetings, if the act is not means of violence (circumstance qualifying
included in Art 131 and 132 (Public the disturbance/interruption) – “tumultuous
Officers interrupting peaceful meetings in character”
or religious worship).
The essence is creating public disorder. This
c. Making any outcry tending to incite crime is brought about by creating serious
rebellion or sedition in any meeting, disturbances in public places, public buildings,
association or public place and even in private places where public
functions or performances are being held.
d. Displaying placards or emblems
which provoke a disturbance of  For a crime to be under this article, it must
public order in such place not fall under Articles 131 (prohibition,
interruption, and dissolution of peaceful
e. Burying with pomp the body of a meetings) and 132 (interruption of religious
person who has been legally worship).
executed.

 If the act of disturbing or interrupting a

meeting or religious ceremony is NOT
committed by public officers, or if committed
by public officers who are not participants
therein, this article applies. Art 131 and 132
punishes the same acts if committed by
public officers who are NOT participants in
the meeting
 CRIMINAL LAW II ACJUCO 44

In the act of making outcry during speech order, or cause damage to the
tending to incite rebellion or sedition, interest or credit of the State.
the situation must be distinguished
from inciting to sedition or rebellion. b. Encouraging disobedience to the
 If the speaker, even before he delivered his law or to the constituted authorities
speech, already had the criminal intent to or by praising, justifying or extolling
incite the listeners to rise to sedition, the any act punished by law, by the same
crime would be inciting to sedition. means or by words, utterances or
However, if the offender had no such speeches
criminal intent, but in the course of his
speech, tempers went high and so the c. Maliciously publishing or causing
speaker started inciting the audience to rise to be published any official
in sedition against the government, the resolution or document without
crime is disturbance of the public order. proper authority, or before they have
been published officially
The disturbance of the pubic order is
tumultuous and the penalty is increased if it is d. Printing, publishing or
brought about by armed men. The term distributing or (causing the same)
“armed” does not refer to firearms but includes books, pamphlets, periodicals or
even big stones capable of causing grave leaflets which do not bear the real
injury. printer’s name or which are
classified as anonymous.
 It is also disturbance of the public order if a
convict legally put to death is buried with The purpose of the law is to punish the
pomp. He should not be made out as a spreading of false information which tends to
martyr; it might incite others to hatred. cause panic, confusion, distrust and divide
people in their loyalty to the duly constituted
 The crime of disturbance of public order authorities.
may be committed in a public or private
place. If committed in a private place, the Actual public disorder or actual damage to the
law is violated only where the disturbance is credit of the State is not necessary.
made while a public function or
performance is going on. Without a public Republic Act No. 248 prohibits the reprinting,
gathering in a private place, the crime reproduction or republication of government
cannot be committed. publications and official documents without
previous authority
The article also punishes any person who
Article 154 knowingly publishes official acts or documents
UNLAWFUL USE OF MEANS OF which are not officially promulgated.
PUBLICATION AND UNLAWFUL
UTTERANCES
Article 155
 TYPES: ALARMS AND SCANDALS
a. Publishing or causing to be
published, by means of printing,  TYPES:
lithography or any other means of a. Discharging any firearm, rocket,
publication as news any false news firecracker, or other explosive within
which may endanger the public any town or public place, calculated
to cause alarm or danger
 CRIMINAL LAW II ACJUCO 45

b. Instigating or taking active part in because the offended party is not mortally
any charivari or other disorderly wounded.
meeting offensive to another or
prejudicial to public tranquility In Araneta v. Court of Appeals, it was held
that if a person is shot at and is
c. Disturbing the public peace while wounded, the crime is automatically
wandering about at night or while attempted homicide. Intent to kill is
engaged in any other nocturnal inherent in the use of the deadly
amusement weapon.

d. Causing any disturbance or scandal (4) Grave Threats – If the

in public places while intoxicated or weapon is not discharged but
otherwise, provided the act is not merely pointed to another
covered by Art 153 (tumult).
(5) Other Light Threats – If drawn in a
 Understand the nature of the crime of quarrel but not in self defense
alarms and scandals as one that disturbs
public tranquility or public peace. If the  What governs is the result, not the intent
annoyance is intended for a particular
person, the crime is unjust vexation.
CRIME Nature of Crime
Who are
 Charivari – mock serenade or discordant Liable
noises made with kettles, tin horns etc, Tumults and Crime against Private
designed to deride, insult or annoy other Public Order persons,
Disturbances outsider
When a person discharges a firearm in (153)
public, the act may constitute any of the Alarms and Crime against Private
possible crimes under the Revised Penal Scandals Public Order persons,
Code: (155) outsider

(1) Alarms and scandals if the firearm when

discharged was not directed to any Article 156
particular person; DELIVERING PRISONERS FROM JAILS

(2) Illegal discharge of firearm under Article  ELEMENTS :

254 if the firearm is directed or pointed a. That there is a person confined in a
to a particular person when discharged jail or penal establishment.
but intent to kill is absent;
b. That the offender removes therefor
(3) Attempted homicide, murder, or such person, or helps the escape of
parricide if the firearm when discharged such person (if the escapee is serving
is directed against a person and intent final judgement, he is guilty of evasion
to kill is present. of sentence).

In this connection, understand that it is not c. Offender is a private individual

necessary that the offended party be wounded
or hit. Mere discharge of firearm towards  Prisoner may be detention prisoner or one
another with intent to kill already amounts to sentenced by virtue of a final judgment
attempted homicide or attempted murder or
attempted parricide. It can not be frustrated
 CRIMINAL LAW II ACJUCO 46

Even if the prisoner is in the hospital or asylum prisoners. But if the offender is not the
or any place for detention of prisoner, as long custodian of the prisoner at that time, even
as he is classified as a prisoner, that is, a though he is a public officer, the crime he
formal complaint or information has been filed committed is delivering prisoners from jail.
in court, and he has been officially categorized
as a prisoner, this article applies, as such place Liability of the prisoner or detainee who
is considered extension of the penal institution. escaped – When these crimes are
committed, whether infidelity in the
 A policeman assigned to the city jail as custody of prisoners or delivering
guard who while off-duty released a prisoners from jail, the prisoner so
prisoner is liable here escaping may also have criminal
liability and this is so if the prisoner is a
Even if the prisoner returned to the jail after convict serving sentence by final
several hours, the one who removed him from judgment. The crime of evasion of
jail is liable. service of sentence is committed by
the prisoner who escapes if such
 It may be committed through negligence prisoner is a convict serving sentence
by final judgment.
 Circumstances qualifying the offense –
is committed by means of violence, If the prisoner who escapes is only a detention
intimidation or bribery. prisoner, he does not incur liability from
escaping if he does not know of the plan to
 Mitigating circumstance – if it takes place remove him from jail. But if such prisoner
outside the penal establishment by taking knows of the plot to remove him from jail and
the guards by surprise cooperates therein by escaping, he himself
becomes liable for delivering prisoners from jail
Correlate the crime of delivering person from as a principal by indispensable cooperation.
jail with infidelity in the custody of
prisoners punished under Articles If three persons are involved – a stranger, the
223, 224 and 225 of the Revised custodian and the prisoner – three crimes are
Penal Code. In both acts, the committed:
offender may be a public officer or a
private citizen. (1) Infidelity in the custody of prisoners;
 Do not think that infidelity in the custody of
prisoners can only be committed by a public (2) Delivery of the prisoner from jail; and
officer and delivering persons from jail can
only be committed by private person. Both (3) Evasion of service of sentence.
crimes may be committed by public officers
as well as private persons. It is possible that several crimes may be
committed in one set of facts. For instance,
In both crimes, the person involved may be a assuming that Pedro, the jail warden, agreed
convict or a mere detention prisoner. with Juan to allow Maria to escape by not
locking the gate of the city jail. Provided that
The only point of distinction between the two Juan comes across with P5,000.00 pesos as
crimes lies on whether the offender is the bribe money. The arrangement was not known
custodian of the prisoner or not at the time the to Maria but when she noticed the unlocked
prisoner was made to escape. gate of the city jail she took advantage of the
 If the offender is the custodian at that time, situation and escaped. From the facts given,
the crime is infidelity in the custody of there is no question that Pedro, as the jail
warden, is liable for the crime of infidelity in the
 CRIMINAL LAW II ACJUCO 47

custody of the prisoner. He will also be able for

the crime of bribery. Juan will be liable for the A detention prisoner even if he escapes from
crime of delivering a prisoner from jail and for confinement has no criminal liability. Thus,
corruption of public official under Art. 212. If escaping from his prison cell when his case is
Maria is a sentenced prisoner, she will be liable still on appeal does not make said prisoner
for evasion of service of sentence under Article liable for Evasion of Service of Sentence.
157. if she is a detention prisoner, she commits
no crime.  In leaving or escaping from jail or prison,
that the prisoner immediately returned is
immaterial. It is enough that he left the
EVASION OF SENTENCE OR SERVICE penal establishment by escaping therefrom.
His voluntary return may only be mitigating,
Evasion of service of sentence has three being analogous to voluntary surrender.
forms: But the same will not absolve his criminal
liability.
(1) By simply leaving or escaping from the
penal establishment under Article 157;  A continuing offense.

(2) Failure to return within 48 hours after  Offenders – not minor delinquents nor
having left the penal establishment detention prisoners
because of a calamity, conflagration or
mutiny and such calamity, conflagration  If escaped within the 15 day appeal period
or mutiny has been announced as – no evasion
already passed under Article 158;
 No applicable to deportation as the
(3) Violating the condition of conditional sentence
pardon under Article 159.
 The crime of evasion of service of sentence
may be committed even if the sentence is
Article 157 destierro, and this is committed if the
EVASION OF SERVICE OF SENTENCE convict sentenced to destierro will enter the
prohibited places or come within the
 ELEMENTS : prohibited radius of 25 kilometers to such
a. That the offender is a convict by places as stated in the judgment.
final judgment.
If the sentence violated is destierro, the penalty
b. That he is serving his sentence upon the convict is to be served by way of
which consists in deprivation of destierro also, not imprisonment. This is so
liberty (destierro included) because the penalty for the evasion can not be
more severe than the penalty evaded.
c. That he evades the service of his
sentence by escaping during the  Circumstances qualifying the offense
term if his sentence. (fact of return (done thru):
immaterial). a. unlawful entry (by “scaling”)
 By the very nature of the crime, it cannot be b. breaking doors, windows, gates, walls,
committed when the prisoner involved is roofs or floors
merely a detention prisoner. But it applies to
persons convicted by final judgment with a
penalty of destierro.
 CRIMINAL LAW II ACJUCO 48

c. using picklocks, false keys, disguise,  The leaving from the penal establishment is
deceit, violence or intimidation not the basis of criminal liability. It is the
failure to return within 48 hours after the
d. connivance with other convicts or passing of the calamity, conflagration or
employees of the penal institution mutiny had been announced. Under Article
158, those who return within 48 hours are
A, a foreigner, was found guilty of violation of given credit or deduction from the
the law, and was ordered by the court to be remaining period of their sentence
deported. Later on, he returned to the equivalent to 1/5 of the original term of the
Philippines in violation of the sentence. Held: sentence. But if the prisoner fails to return
He is not guilty of Evasion of Service of within said 48 hours, an added penalty, also
Sentence as the law is not applicable to 1/5, shall be imposed but the 1/5 penalty is
offenses executed by deportation. (U.S. vs. based on the remaining period of the
Loo Hoe, 36 Phil. 867). sentence, not on the original sentence. In
no case shall that penalty exceed six
months.
Article 158
EVASION OF SERVICE OF SENTENCE ON  Offender must escape to be entitled to
THE OCCASION OF DISORDERS, allowance
CONFLAGRATIONS, EARTHQUAKES OR
OTHER CALAMITIES Those who did not leave the penal
establishment are not entitled to the 1/5 credit.
 ELEMENTS : Only those who left and returned within the 48-
a. That the offender is a convict by hour period.
final judgement who is confined in
a penal institution.  For such event to be considered as a
calamity, the President must declared it to
b. That there is disorder, resulting be so. He must issue a proclamation to the
from: effect that the calamity is over. Even if the
1. conflagration, events herein mentioned may be
2. earthquake, or considered as calamity, there is a need for
3. explosion, or the Chief Executive to make such
4. similar catastrophe, or announcement. Absent such declaration.
5. mutiny , not participated. Even if the prisoner will return to the penal
institution where he was confined, the same
c. That the offender evades the is of no moment as in the meantime he has
service of his sentence by leaving committed a violation of the law, not under
the penal institution where he is the present article but for pure evasion of
confined, on the occasion of such service of sentence under Article 157.
disorder or during the mutiny.
 Mutiny – organized unlawful resistance to a
d. That the offender fails to give superior officer, a sedition, a revolt
himself up to the authorities
within 48 hours following the
issuance of a proclamation by the
chief executive announcing the
passing away of such calamity.
 CRIMINAL LAW II ACJUCO 49

 The mutiny referred to in the second In violation of conditional pardon, as a rule, the
form of evasion of service of sentence violation will amount to this crime only if the
does not include riot. The mutiny condition is violated during the remaining
referred to here involves subordinate period of the sentence.
personnel rising against the supervisor
within the penal establishment. One If the condition of the pardon is violated, the
who escapes during a riot will be remedy against the accused may be in the
subject to Article 157, that is, simply form of prosecution under Article 159. it may
leaving or escaping the penal also be an administrative action by referring
establishment. the violation to the court of origin and praying
for the issuance of a warrant of arrest justified
 Disarming the guards is not mutiny under Section 64 of the Revised Administrative
Code.
Violation attributed to the accused is no longer
referred to the court for judicial inquiry or  The administrative liability of the convict
resolution. The law has provided sufficient under the conditional pardon is different and
guidelines for the jail warden to follow. has nothing to do with his criminal liability
for the evasion of service of sentence in the
This disquisition will not apply if the offender event that the condition of the pardon has
who escapes taking advantage of the been violated. Exception: where the
calamities enumerated herein is apprehended violation of the condition of the pardon will
by the authorities after 48 hours from the constitute evasion of service of sentence,
declaration that the calamity is over. It is only even though committed beyond the
extended to one who returns but made inside remaining period of the sentence. This is
the 48 hours delimited by the proclamation. At when the conditional pardon expressly so
this stage, the violation is not substantive but provides or the language of the conditional
administrative in nature. pardon clearly shows the intention to make
the condition perpetual even beyond the
unserved portion of the sentence. In such
Article 159 case, the convict may be required to serve
VIOLATION OF CONDITIONAL PARDON the unserved portion of the sentence even
though the violation has taken place when
 ELEMENTS: the sentence has already lapsed.
a. That the offender was a convict.  Offender must have been found guilty of the
subsequent offense before he can be
b. That he was granted a conditional prosecuted under this Article. But if under
pardon by the chief executive. Revised Admin Code, no conviction
necessary. President has power to arrest,
c. That he violated any of the reincarnate offender without trial
conditions of such pardon.
Article 159 is a distinct felony. It is a
 Condition extends to special laws – substantive crime. For one to suffer the
violation of illegal voting consequence of its violation, the prisoner must
The condition imposed upon the prisoner not to be formally charged in court. He will be entitled
be guilty of another crime is not limited to those to a full blown hearing, in full enjoyment of his
punishable under the Revised Penal Code. It right to due process. Only after a final
includes those punished under Special Law. judgment has been rendered against him may
(People vs. Corral, 74 Phil. 357). he suffer the penalty prescribed under Article
 CRIMINAL LAW II ACJUCO 50

159 (Torres vs. Gonzales, et al., 152 SCRA  A quasi-recidivist may be pardoned at age
292) 70. Except: Unworthy or Habitual
Delinquent
VIOLATION OF ORDINARY EVASION
PARDON  If new felony is evasion of sentence –
Infringement of To evade the penalty offender is not a quasi-recidivist
conditions/terms of given by the courts –
President disturbs the public order
 Penalty: maximum period of the penalty for
the new felony should be imposed
 Two penalties provided:
a. prision correccional in its minimum
Quasi-recidivism is a special aggravating
period – if the penalty remitted does not
circumstance which directs the court to impose
exceed 6 years
the maximum period of the penalty prescribed
by law for the new felony. The court will do
b. the unexpired portion of his original
away or will ignore mitigating and aggravating
sentence – if the penalty remitted is
circumstances in considering the penalty to be
higher than 6 years
imposed. There will be no occasion for the
court to consider imposing the minimum,
COMMISSION OF ANOTHER CRIME
medium or maximum period of the penalty. The
mandate is absolute and is justified by the
Article 160
finding that the accused is suffering from some
COMMISSION OF ANOTHER CRIME
degree of moral perversity if not total
DURING SERVICE OF PENALTY IMPOSED
incorrigibility. (People vs. Alicia, et al., 95
FOR ANOTHER PREVIOUS OFFENSE-
SCRA 227)
PENALTY: (quasi-recidivism)
Quasi-recidivism is an aggravating
 ELEMENTS circumstance which cannot be offset by any
a. That the offender was already mitigating circumstance. To be appreciated as
convicted by final judgement of a special aggravating circumstance, it must be
one offense. alleged in the information. (People vs.
Bautista, 65 SCRA 460)
b. That he committed a new felony
before beginning to serve such  Quasi-Recidivism may be offset by a
sentence or while serving the
special privileged mitigating circumstance
same.
(ex. Minority)
 Quasi-recidivism : a person after having
been convicted by final judgement shall
commit a new felony before beginning to
serve such sentence, or while serving the
same.

 Second crimes must belong to the RPC, not

special laws. First crime may be either from
the RPC or special laws

 Reiteracion: offender shall have served out

his sentence for the prior offense
 CRIMINAL LAW II ACJUCO 51

TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST

Crimes against public interest

1. Counterfeiting the great seal of the

Government of the Philippines (Art.
161);

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);

5. Selling of false or mutilated coins,

without connivance (Art. 165);

6. Forging treasury or bank notes or other

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

7. Counterfeiting, importing and uttering

instruments not payable to bearer (Art.
167);

8. Illegal possession and use of forged

treasury or bank notes and other
instruments of credit (Art. 168);

9. Falsification of legislative documents

(Art. 170);

10. Falsification by public officer, employee

or notary (Art. 171);

11. Falsification by private individuals and

use of falsified documents (Art. 172);

12. Falsification of wireless, cable, telegraph

and telephone messages and use of
said falsified messages (Art. 173);

13. False medical certificates, false

certificates of merit or service (Art. 174);
 CRIMINAL LAW II ACJUCO 52

14. Using false certificates (Art. 175);

The crimes in this title are in the nature of fraud
15. Manufacturing and possession of or falsity to the public. The essence of the
instruments or implements for crime under this title is that which defraud the
falsification (Art. 176); public in general. There is deceit perpetrated
upon the public. This is the act that is being
16. Usurpation of authority or official punished under this title.
functions (Art. 177);

17. Using fictitious name and concealing Article 161

true name (Art. 178); COUNTERFEITING GREAT SEAL OF
GOVERNMENT
18. Illegal use of uniforms or insignia (Art.
179);  TYPES:
a. Forging the great seal of the
19. False testimony against a defendant Government
(Art. 180);
b. Forging the signature of the
20. False testimony favorable to the President
defendant (Art. 181);
c. Forging the stamp of the
21. False testimony in civil cases (Art. 182); President

22. False testimony in other cases and  When the signature of the President is
perjury (Art. 183); forged, it is not falsification but forging of
signature under this article
23. Offering false testimony in evidence (Art.
184);  Signature must be forged, others signed it –
not the President.
24. Machinations in public auction (Art.
185);
Article 162
25. Monopolies and combinations in USING FORGED SIGNATURE OR
restraint of trade (Art. 186); COUNTERFEIT SEAL OR STAMP

26. Importation and disposition of falsely ELEMENTS:

marked articles or merchandise made of a. That the great seal of the republic
gold, silver, or other precious metals or was counterfeited or the signature
their alloys (Art. 187); or stamp of the chief executive
was forged by another person.
27. Substituting and altering trade marks
and trade names or service marks (Art. b. That the offender knew of the
188); counterfeiting or forgery.

28. Unfair competition and fraudulent c. That he used the counterfeit seal
registration of trade mark or trade name, or forged signature or stamp.
or service mark; fraudulent designation
of origin, and false description (Art.
189).
 CRIMINAL LAW II ACJUCO 53

 Offender is NOT the forger/not the cause of  Applies also to coins withdrawn from
the counterfeiting circulation

 Essence of article: making of coins

Article 163 without authority
MAKING AND IMPORTING AND UTTERING
FALSE COINS Acts punished

 ELEMENTS : 1. Mutilating coins of the legal currency,

a. That there be false or with the further requirements that there
counterfeited coins (need not be be intent to damage or to defraud
legal tender). another;

b. That the offender either made, 2. Importing or uttering such mutilated

imported or uttered such coins. coins, with the further requirement that
there must be connivances with the
c. That in case of uttering such false mutilator or importer in case of uttering.
or counterfeited coins, he
connives with counterfeiters or The first acts of falsification or falsity are –
importers.
(1) Counterfeiting – refers to money or
 Coin is counterfeit – if it is forged, or if it is currency;
not an article of the government as legal
tender, regardless if it is of no value (2) Forgery – refers to instruments of credit
and obligations and securities issued by
Kinds of coins the counterfeiting of which the Philippine government or any
is punished banking institution authorized by the
Philippine government to issue the
1. Silver coins of the Philippines or coins of same;
the Central Bank of the Philippines;
(3) Falsification – can only be committed in
2. Coins of the minor coinage of the respect of documents.
Philippines or of the Central Bank of the
Philippines;
In so far as coins in circulation are concerned,
3. Coin of the currency of a foreign country. there are two crimes that may be committed:

 Counterfeiting – imitation of legal or (1) Counterfeiting coins -- This is the

genuine coin (may contain more silver, crime of remaking or manufacturing
different design) such as to deceive an without any authority to do so.
ordinary person in believing it to be genuine
In the crime of counterfeiting, the law is not
 Utter – to pass counterfeited coins, deliver concerned with the fraud upon the public such
or give away that even though the coin is no longer legal
tender, the act of imitating or manufacturing the
 Import – to bring to port the same coin of the government is penalized. In
punishing the crime of counterfeiting, the law
 Both Philippine and foreign state coins wants to prevent people from trying their
ingenuity in their imitation of the manufacture
of money.
 CRIMINAL LAW II ACJUCO 54

 MULTILATION OF COINS –
(2) Mutilation of coins -- This refers to the IMPORTATION AND UTTERANCE:
deliberate act of diminishing the proper
metal contents of the coin either by This has been repealed by PD 247.
scraping, scratching or filling the edges (Defacement, Mutilation, Tearing, Burning
of the coin and the offender gathers the or Destroying Central Bank Notes and
metal dust that has been scraped from Coins)
the coin.
Under this PD, the acts punishable are:
Requisites of mutilation under the Revised a. will
Penal Code ful defacement
b. mu
(1) Coin mutilated is of legal tender; tilation
c. tea
(2) Offender gains from the precious metal ring
dust abstracted from the coin; and d. bur
ning
(3) It has to be a coin. e. de
struction of Central Bank notes
 There is no expertise involved here. In and coins
mutilation of coins under the Revised Penal
Code, the offender does nothing but to  Mutilation – to take off part of the metal
scrape, pile or cut the coin and collect the either by filling it or substituting it for
dust and, thus, diminishing the intrinsic another metal of inferior quality, to diminish
value of the coin. by inferior means (to diminish metal
contents).
Mutilation of coins is a crime only if the coin
mutilated is legal tender. If it is not legal tender  Foreign notes and coins not included. Must
anymore, no one will accept it, so nobody will be legal tender.
be defrauded. But if the coin is of legal tender,
and the offender minimizes or decreases the  Must be intention to mutilate.
precious metal dust content of the coin, the
crime of mutilation is committed. Mutilation under the Revised Penal Code is
true only to coins. It cannot be a crime under
The offender must deliberately reduce the the Revised Penal Code to mutilate paper bills
precious metal in the coin. Deliberate intent because the idea of mutilation under the code
arises only when the offender collects the is collecting the precious metal dust. However,
precious metal dust from the mutilated coin. If under Presidential Decree No. 247, mutilation
the offender does not collect such dust, intent is not limited to coins.
to mutilate is absent, but Presidential Decree
No. 247 will apply.
Questions & Answers

1. The people playing cara y cruz,

before they throw the coin in the air would rub
the money to the sidewalk thereby diminishing
the intrinsic value of the coin. Is the crime of
mutilation committed?
Article 164
 CRIMINAL LAW II ACJUCO 55

Mutilation, under the Revised Penal

Code, is not committed because they do not The primary purpose of Presidential Decree
collect the precious metal content that is being No. 247 at the time it was ordained was to stop
scraped from the coin. However, this will the practice of people writing at the back or on
amount to violation of Presidential Decree No. the edges of the paper bills, such as "wanted:
247. pen pal".

2. When the image of Jose Rizal on So, if the act of mutilating coins does not
a five-peso bill is transformed into that of involve gathering dust like playing cara y cruz,
Randy Santiago, is there a violation of that is not mutilation under the Revised Penal
Presidential Decree No. 247? Code because the offender does not collect
the metal dust. But by rubbing the coins on the
Yes. Presidential Decree No. 247 is sidewalk, he also defaces and destroys the
violated by such act. coin and that is punishable under Presidential
Decree No. 247.
4. An old woman who was a
cigarette vendor in Quiapo refused to accept
one-centavo coins for payment of the vendee Article 165
of cigarettes he purchased. Then came the SELLING OF FALSE OR MUTILATED COIN,
police who advised her that she has no right to WITHOUT CONNIVANCE
refuse since the coins are of legal tender. On
this, the old woman accepted in her hands the  2 Types
one-centavo coins and then threw it to the face a. Possession of coin, counterfeited
of the vendee and the police. Was the old or mutilated by another person,
woman guilty of violating Presidential Decree with intent to utter the same,
No. 247? knowing that it is false or
mutilated.
She was guilty of violating Presidential
Decree No. 247 because if no one ever picks ELEMENTS:
up the coins, her act would result in the 1. possession
diminution of the coin in circulation.
2. with intent to utter, and
5. A certain customer in a restaurant
wanted to show off and used a P 20.00 bill to 3. knowledge
light his cigarette. Was he guilty of violating
Presidential Decree No. 247? b. Actually uttering such false or
mutilated coin, knowing the same
He was guilty of arrested for violating of to be false or mutilated.
Presidential Decree No. 247. Anyone who is in
possession of defaced money is the one who ELEMENTS:
is the violator of Presidential Decree No. 247. 1. actually uttering, and
The intention of Presidential Decree No. 247 is
not to punish the act of defrauding the public 2. knowledge.
but what is being punished is the act of
destruction of money issued by the Central  Possession does not require legal tender in
Bank of the Philippines. foreign coins

Note that persons making bracelets out of  Includes constructive possession

some coins violate Presidential Decree No.
247.
 CRIMINAL LAW II ACJUCO 56

On counterfeiting coins, it is immaterial If the falsification is done on a document that is

whether the coin is legal tender or not because classified as a government security, then the
the intention of the law is to put an end to the crime is punished under Article 166. On the
practice of imitating money and to discourage other hand, if it is not a government security,
anyone who might entertain the idea of then the offender may either have violated
imitating money (People vs. Kong Leon). Article 171 or 172.

Article 166 Article 167

FORGING TREASURY OR BANK NOTES – COUNTERFEITING, IMPORTING, AND
IMPORTING AND UTTERING UTTERING INSTRUMENTS NOT PAYABLE
TO BEARER
 Acts punishable:
a. Forging or falsity of treasury/bank  ELEMENTS :
notes or documents payable to a. That there be an instrument
bearer payable to order or other
document of credit not payable to
b. Importing of such notes bearer.

c. Uttering of such false or forged b. That the offender either forged,

obligations and notes in imported or uttered such
connivance with forgers and instruments.
importers
c. That in case of uttering, he
 Forging – by giving a treasury or bank note connived with the forger or
or document payable to bearer/order an importer.
appearance of a true and genuine
document
Article 168
 Falsification – by erasing, substituting, ILLEGAL POSSESSION AND USE OF FALSE
counterfeiting or altering by any means the TREASURY OR BANK NOTES AND OTHER
figures and letters, words, signs contained INSTRUMENT OF CREDIT
therein
 ELEMENTS:
 E.g. falsifying – lotto or sweepstakes ticket. a. That any treasury or bank note or
Attempted estafa through falsification of an certificate or other obligation and
obligation or security of the Phil security payable to bearer, or any
instrument payable to order or
 PNB checks not included here – it’s other document of credit not
falsification of commercial document under payable to bearer is forged or
Article 172 falsified by another person.

 Obligation or security includes: bonds, b. That the offender knows that any
certificate of indebtedness, bills, national of those instruments is forged or
bank notes, coupons, treasury notes, falsified.
certificate of deposits, checks, drafts for
money, sweepstakes money c. That he performs any of these
acts –
1. using any of such forged or
falsified instrument, or
 CRIMINAL LAW II ACJUCO 57

2. possessing with intent to use

any of such forged or falsified
instrument.

 Act sought to be punished: Knowingly Questions & Answers

possessing with intent to use any of such
forged treasury or bank notes
1. Instead of the peso sign (P),
somebody replaced it with a dollar sign ($).
Article 169 Was the crime of forgery committed?
FORGERY
No. Forgery was not committed. The
 How forgery is committed: forged instrument and currency note must be
a. by giving to a treasury or bank note given the appearance of a true and genuine
or any instrument payable to bearer document. The crime committed is a violation
or to order, the appearance of a true of Presidential Decree No. 247. Where the
and genuine document currency note, obligation or security has been
changed to make it appear as one which it
b. by erasing, substituting, purports to be as genuine, the crime is forgery.
counterfeiting, altering by any means In checks or commercial documents, this crime
the figures, letters or words, or signs is committed when the figures or words are
contained therein. changed which materially alters the document.

 if all acts done but genuine appearance is 2. An old man, in his desire to earn
not given, the crime is frustrated something, scraped a digit in a losing
sweepstakes ticket, cut out a digit from another
Forgery under the Revised Penal Code applies ticket and pasted it there to match the series of
to papers, which are in the form of obligations digits corresponding to the winning
and securities issued by the Philippine sweepstakes ticket. He presented this ticket to
government as its own obligations, which is the Philippine Charity Sweepstakes Office. But
given the same status as legal tender. the alteration is so crude that even a child can
Generally, the word “counterfeiting” is not used notice that the supposed digit is merely
when it comes to notes; what is used is superimposed on the digit that was scraped.
“forgery.” Counterfeiting refers to money, Was the old man guilty of forgery?
whether coins or bills.
NO Because of the impossibility of
Notice that mere change on a document does deceiving whoever would be the person to
not amount to this crime. The essence of whom that ticket is presented, the Supreme
forgery is giving a document the appearance of Court ruled that what was committed was an
a true and genuine document. Not any impossible crime. Note, however, that the
alteration of a letter, number, figure or design decision has been criticized. In a case like
would amount to forgery. At most, it would this, the Supreme Court of Spain ruled that the
only be frustrated forgery. crime is frustrated. Where the alteration is
such that nobody would be deceived, one
When what is being counterfeited is obligation could easily see that it is a forgery, the crime is
or securities, which under the Revised Penal frustrated because he has done all the acts of
Code is given a status of money or legal execution which would bring about the
tender, the crime committed is forgery. felonious consequence but nevertheless did
not result in a consummation for reasons
independent of his will.
 CRIMINAL LAW II ACJUCO 58

The crime of falsification must involve a writing

3. A person has a twenty-peso bill. that is a document in the legal sense. The
He applied toothache drops on one side of the writing must be complete in itself and capable
bill. He has a mimeograph paper similar in of extinguishing an obligation or creating rights
texture to that of the currency note and placed or capable of becoming evidence of the facts
it on top of the twenty-peso bill and put some stated therein. Until and unless the writing has
weight on top of the paper. After sometime, he attained this quality, it will not be considered as
removed it and the printing on the twenty-peso document in the legal sense and, therefore, the
bill was reproduced on the mimeo paper. He crime of falsification cannot be committed in
took the reverse side of the P20 bill, applied respect thereto.
toothache drops and reversed the mimeo
paper and pressed it to the paper. After Distinction between falsification and
sometime, he removed it and it was forgery:
reproduced. He cut it out, scraped it a little and
went to a sari-sari store trying to buy a Falsification is the commission of any of the
cigarette with that bill. What he overlooked was eight acts mentioned in Article 171 on
that, when he placed the bill, the printing was legislative (only the act of making alteration),
inverted. He was apprehended and was public or official, commercial, or private
prosecuted and convicted of forgery. Was the documents, or wireless, or telegraph
crime of forgery committed? messages.

The Supreme Court ruled that it was The term forgery as used in Article 169 refers
only frustrated forgery because although the to the falsification and counterfeiting of treasury
offender has performed all the acts of or bank notes or any instruments payable to
execution, it is not possible because by simply bearer or to order.
looking at the forged document, it could be
seen that it is not genuine. It can only be a Note that forging and falsification are crimes
consummated forgery if the document which under Forgeries.
purports to be genuine is given the
appearance of a true and genuine document.
Otherwise, it is at most frustrated. Article 170
FALSIFICATION OF LEGISLATIVE
Five classes of falsification: DOCUMENTS

(1) Falsification of legislative documents;  ELEMENTS :

a. That these be a bill, resolution or
(2) Falsification of a document by a public ordinance enacted or approved or
officer, employee or notary public; pending approval by the national
assembly or any provincial board or
(3) Falsification of a public or official, or municipal council.
commercial documents by a private
individual; b. That the offender (any person) alters
the same.
(4) Falsification of a private document by
any person; c. That he has no proper authority
therefor.
(5) Falsification of wireless, telegraph and
telephone messages. d. That the alteration has changed the
meaning of the document.
 CRIMINAL LAW II ACJUCO 59

The words "municipal council" should include 2. Causing it to appear that persons
the city council or municipal board – Reyes. have participated in any act or
proceeding when they did not in
 Accused must not be a public official fact so participate.
entrusted with the custody or possession of
such document otherwise Art 171 applies . 3. Attributing to persons who have
participated in an act or
The falsification must be committed on a proceeding statements other than
genuine, true and authentic legislative those in fact made by them.
document. If committed on a simulated,
spurious or fabricated legislative document, the Requisites:
crime is not punished under this article but i. That the offender caused it
under Article 171 or 172. to appear in a document that
a person/s participated in an
act or a proceeding; and
Article 171
FALSIFICATION OF DOCUMENTS BY ii. That such person/s did not
PUBLIC OFFICER, EMPLOYEE, OR NOTARY in fact so participate in the act
OR ECCLESTASTICAL MINISTER or proceeding

 ELEMENTS: 4. Making untruthful statements in a

a. That the offender is a public narration of facts;
officer, employee, or notary public.
Requisites:
b. That he takes advantage of his i. That the offender makes in
official position. a document statements in a
narration of facts
c. That he falsifies a document by
committing any of the following acts: ii. That he has a legal obligation
to disclose the truth of the
1. Counterfeiting or imitating any facts narrated by him;
handwriting, signature or rubric. (required by law to be done)
and
Requisites:
i. That there be an intent to iii. That the facts narrated by the
imitate, or an attempt to offender are absolutely false;
imitate and

ii. That the two signatures or iv. That the perversion or truth in
handwritings, the genuine and the narration of facts was
the forged, bear some made with the wrongful intent
resemblance, to each other of injuring a third person

 (lack of similitude/imitation of  There must be a narration of

a genuine signature will not facts, not a conclusion of law.
be a ground for conviction Must be on a material matter
under par. 1 but such is not an
impediment to conviction For one to be held criminally liable for
under par. 2) falsification under paragraph 4, the untruthful
statement must be such as to effect the
 CRIMINAL LAW II ACJUCO 60

integrity of the document or to change the genuine original; (if no knowledge,

effects which it would otherwise produce. falsification through negligence) or

 Legal obligation means that there The acts of falsification mentioned in this
is a law requiring the disclosure paragraph are committed by a public officer or
of the truth of the facts narrated. by a notary public who takes advantage of his
Ex. Residence certificates official position as custodian of the document. It
can also refer to a public officer or notary who
 The person making the narration prepared and retained a copy of the document.
of facts must be aware of the The falsification can be done in two ways. It
falsity of the facts narrated by can be a certification purporting to show that
him. This kind of falsification may the document issued is a copy of the original
be committed by omission on record when no such original exists. It can
also be in the form of a certification to the effect
5. Altering true dates. that the document on file contains statements
– date must be essential or including in the copy issued, entries which
are not found on contrary to, or different from
For falsification to take place under this the original genuine document on file.
paragraph, the date of the document must be
material to the right created or to the obligation 8. Intercalating any instrument or
that is extinguished. note relative to the issuance
thereof in a protocol, registry, or
6. Making any alteration or official book. (genuine document)
intercalation in a genuine
document which changes its d. In case the offender is an
meaning. ecclesiastical minister, the act of
falsification is committed with respect to
Requisites: any record or document of such
i. That there be an alteration character that its falsification may affect
(change) or intercalation the civil status of persons.
(insertion) on a document
 There is no crime of attempted or frustrated
ii. That it was made on a falsification of public document
genuine document
Alteration or changes to make the document
iii. That the speak the truth do not constitute falsification.
alteration/intercalation has (US vs. Mateo, 25 Phil. 324)
changed the meaning of the
document  Persons liable – public officer, employee or
notary public or ecclesiastical minister
iv. That the change made the
document speak something Either he has duty to intervene in the
false. preparation of the document or it may be a
situation wherein the public officer has official
7. Issuing in an authenticated form a custody of the document.
document purporting to be a copy
of an original document when no  So even if the offender is a public officer, if
such original exists, or including her causes the falsification of a document
in such copy a statement contrary which is not in his official custody or if the
to, or different from, that of the
 CRIMINAL LAW II ACJUCO 61

falsification committed by him is not related (3) Commercial document or any document
whatsoever to the performance of his recognized by the Code of Commerce
duties, he will still be liable for falsification or any commercial law; and
but definitely not under this Article but under
Article 172. (falsification of documents by a (4) Private document in the execution of
private person) which only private individuals take part.

Document: Any written instrument which Public document is broader than the term
establishes a right or by which an obligation is official document. Before a document may be
extinguished. A deed or agreement executed considered official, it must first be a public
by a person setting forth any disposition or document. But not all public documents are
condition wherein rights and obligations may official documents. To become an official
arise. document, there must be a law which requires
a public officer to issue or to render such
Writing may be on anything as long as it document. Example: A cashier is required to
is a product of the handwriting, it is considered issue an official receipt for the amount he
a document. receives. The official receipt is a public
document which is an official document.
 Not necessary that what is falsified is a
genuine or real document, enough that it Liability of a private individual in
gives an appearance of a genuine article falsification by a public officer when there
is conspiracy.
As long as any of the acts of falsification
is committed, whether the document is genuine Under Republic Act 7975, when a public officer
or not, the crime of falsification may be who holds a position classified as Grade 27 or
committed. Even totally false documents may higher, commits a crime in relation to the
be falsified. performance of his official functions, the case
against him will fall under the jurisdiction of the
 Counterfeiting – imitating any handwriting, Sandiganbayan. If a private person is included
signature or rubric in the accusation because of the existence of
conspiracy in the commission of the crime, the
 Feigning – simulating a signature, Sandiganbayan shall maintain jurisdiction over
handwriting, or rubric out of one of which the person of the co-accused, notwithstanding
does not in fact exist the fact that said co-accused is a private
individual. If the public officer is found guilty,
It does not require that the writing be genuine. the same liability and penalty shall be imposed
Even if the writing was through and through on the private individual. (U.S. vs. Ponce, 20
false, if it appears to be genuine, the crime of Phil. 379)
falsification is nevertheless committed.

There are four kinds of documents: Article 172

FALSIFICATION OF PUBLIC, OFFICIAL, OR
(1) Public document in the execution of COMMERCIAL DOCUMENT BY A PRIVATE
which, a person in authority or notary INDIVIDUAL (par 1)
public has taken part;
 ELEMENTS
(2) Official document in the execution of a. That the offender is a private
which a public official takes part; individual or a public officer or
employee who did not take
advantage of his official position.
 CRIMINAL LAW II ACJUCO 62

a. the written acts or records of acts of the

b. That he committed any of the acts sovereign authority of official bodies and
of falsification enumerated in ART. tribunals, and of the public officers,
171. legislative, judicial and executive,
whether of the Philippines or of a foreign
1. Counterfeiting or imitating any country.
handwriting, signature or rubric.
b. Public records kept in the Philippines.
2. Causing it to appear that persons
have participated in any act or  Examples of commercial documents –
proceeding when they did not in warehouse receipts, airway bills, bank
fact so participated. checks, cash files, deposit slips and bank
statements, journals, books, ledgers, drafts,
3. Attributing to persons who have letters of credit and other negotiable
participated in an act or instruments
proceeding statements other than
those in fact made by them. There is a complex crime of estafa through
falsification of public, official or commercial
4. Making untruthful statements in a document. In the crime of estafa, damage or
narration of facts; intent to cause damage is not an element. It is
sufficient that the offender committed or
5. Altering true dates. performed the acts of falsification as defined
and punished under Article 171. The two
6. Making any alteration or offenses can co-exist as they have distinct
intercalation in a genuine elements peculiar to their nature as a crime.
document which changes its When the falsification is committed because it
meaning. is necessary to commit estafa, what we have is
a complex crime defined and punished under
c. That the falsification was Article 48 of the Revised Penal Code.
committed in any public or official or
commercial document. There is a complex crime of falsification of
pubic documents through reckless
 Under this paragraph, damage is not imprudence.
essential, it is presumed
 Cash disbursement vouchers or receipts
If the falsification of public, official or evidencing payments are not commercial
commercial documents, whether they be public documents
official or by private individuals, it is not
necessary that there be present the idea of  A mere blank form of an official document is
gain or the intent to injure a third person. What not in itself a document
is punished under the law is the violation of
public faith and the perversion of the truth as  The possessor of falsified document is
solemnly proclaimed by the nature of the presumed to be the author of the
document. (Sarep vs. Sandiganbayan) falsification

 Defense: lack of malice or criminal intent

FALSIFICATION UNDER PARAGRAPH 2 OF
 The following writings are public: ART. 172. OF PRIVATE DOCUMENT
 CRIMINAL LAW II ACJUCO 63

 ELEMENTS : an independent act which operates to cause

a. That the offender committed any of damage or prejudice to a third person. The
the acts of falsification, except those third person mentioned herein may include the
in paragraph 7 and 8, enumerated in government. Damage is not limited to money
art. 171. or pecuniary prejudice. Damage to one’s honor,
reputation or good name is included.
b. That the falsification was committed
in any private document (must affect  A document falsified as a necessary means
the truth or integrity of the document) to commit another crime must be public,
official or commercial
c. That the falsification caused damage
(essential element; hence, no crime of  There is no complex crime of estafa
estafa thru falsification of private through falsification of a private document
document) to a third party or at least because the immediate effect of the latter is
the falsification was committed with the same as that of estafa
intent to cause such damage.
If a private document is falsified to cause
 Not necessary that the offender profited or damage to the offended party, the crime
hoped to profit from the falsification committed is falsification of a private
document. Remember that in estafa, damage
Falsification of a private document is or intent to cause damage is an indispensable
consummated when such document is actually element of the crime. The same element is
falsified with the intent to prejudice a third necessary to commit the crime of falsification
person whether such falsified document is or is of private document. Since they have a
not thereafter put to illegal use for which it is common element, such element cannot be
intended. (Lopez vs. Paras, 36 Phil. 146) divided into the two parts and considered as
two separate offenses.
What is emphasized at this point is the element
of falsification of private document. There must There is no complex crime of estafa with
be intent to cause damage or damage is falsification because deceit is a common
actually caused. The intention is therefore must element of both. One and the same deceit or
be malicious or there is deliberate intent to damage cannot give rise to more than one
commit a wrong. Reckless imprudence is crime. It is either estafa or falsification.
incompatible with malicious intent.
Criteria to determine whether the crime is
 Falsification is not a continuing offense estafa only or falsification only :

There is no falsification through reckless IF the falsification of the private document was
imprudence if the document is a private essential in the commission of estafa because
document. the falsification, estafa cannot be committed,
the crime is falsification; estafa becomes the
 Falsification by omission consequence of the crime.

Mere falsification of a private document is not IF the estafa can be committed even without
enough to commit crime under paragraph 2 of resorting to falsification, the latter being
Article 172. Two acts must be done by the resorted only to facilitate estafa, the main crime
offender. 1) He must have performed in the is estafa; falsification is merely incidental, since
private document the falsification contemplated even without falsification, estafa can be
under Article 171. 2) He must have performed committed.
 CRIMINAL LAW II ACJUCO 64

 If the estafa was already consummated at 3. That he introduced said document

the time of the falsification of a private in evidence in any judicial
document was committed for the purpose of proceeding. (intent to cause
concealing the estafa, the falsification is not damage not necessary)
punishable, because as regards the
falsification of the private document there b. Use in any other transaction:
was no damage or intent to cause damage. 1. That the offender knew that a
document was falsified by another
A private document which is falsified to obtain person.
money from offended party is a falsification of
private document only. 2. That the false document is
embraced in art. 171 or in any of
 A private document may acquire the subdivisions nos. 1 and 2 of art.
character of a public document when it 172.
becomes part of an official record and is
certified by a public officer duly authorized 3. That he used such documents (not
by law in judicial proceedings).

 The crime is falsification of public 4. That the use of the documents

documents even if falsification took place caused damage to another or at
before the private document becomes part least was used with intent to
of the public records cause such damage.

Examples:  The user of the falsified document is

An employee of a private company who deemed the author of falsification, if:
punches the bundy clock on behalf on a co- a. the use is so closely connected in
employee is guilty of falsification of a private time with the falsification
document.
b. the user had the capacity of falsifying
One who will take the civil service examination the document
for another and makes it appear that he is the
examinee is guilty of falsification of a public Falsification of Falsification of
document. Private Documents Public/Official Documents
Prejudice to third Prejudice to third persons is
USE OF FALSIFIED DOCUMENT (par. 3, art. party is an element immaterial, what is
of the offense. punished is the violation of
172)
public faith and perversion
of truth which the document
 ELEMENTS: proclaims.

a. Introducing in a judicial proceeding: Rules to observe in the use of a falsified

1. That the offender knew that a document.
document was falsified by another 1. It is a crime when knowingly introduced in a
person. judicial proceeding even if there is not intent
to cause damage to another. Knowingly
2. That the false document is introducing a falsified document in a judicial
embraced in art. 171 or in any proceeding, the use alone is not a crime.
subdivisions nos. 1 and 2 of art. The mere introduction of the forged
172. document is the crime itself. But when the
falsified document is knowingly introduced
 CRIMINAL LAW II ACJUCO 65

in an administrative proceeding, the use an officer or employee of a

alone is not a crime. There must be intent to private corporation, engaged in
cause damage or damage is actually the service of sending or
inflicted. receiving wireless, cable or
telephone message.
2. Falsification of document is a separate and
distinct offense from that of the use of b. That the accused commits any of
falsified documents. So if the falsification of the following acts:
document was done or performed because - uttering fictitious wireless,
it was necessary to the use of the same cable, telegraph, or telephone
and in the commission of the crime, then message, or
we may have a complex crime defined and - falsifying wireless, cable,
punished under Article 48 of the Revised telegraph, or telephone
Penal Code. message

3. Good faith is a defense in falsification of 3. Using such falsified message

public document. Requisites:
a. That the accused knew that
Article 173 wireless, cable, telegraph, or
FALSIFICATION OF WIRELESS, CABLE, telephone message was falsified
TELEGRAPH, AND TELEPHONE by any of the person specified in
MESSAGES, AND USE OF SAID FALSIFIED the first paragraph of art. 173.
MESSAGES
b. That the accused used such
 Acts punishable: falsified dispatch.
1. Uttering fictitious, wireless, telegraph
or telephone message c. That the use of the falsified
Requisites: dispatch resulted in the prejudice
a. That the offender is an officer or of a third party, or that the use
employee of the government or thereof was with intent to cause
an officer or employee of a such prejudice.
private corporation, engaged in
the service of sending or  The public officer, to be liable must be
receiving wireless, cable or engaged in the service of sending or
telephone message. receiving wireless, cable and telegraph or
telephone message
b. That the accused commits any of
the following acts: Article 174
- uttering fictitious wireless, FALSIFICATION OF MEDICAL
cable, telegraph, or telephone CERTIFICATES, CERTIFCATES OF MERIT
message, or OR SERVICE AND THE LIKE:
- falsifying wireless, cable,
telegraph, or telephone  Persons liable:
message a. Physician or surgeon who, in connection
with the practice of his profession,
2. Falsifying wireless, telegraph or issued a false certificate (note: such
telephone message certificate must refer to the illness or
Requisites: injury of a person)
a. That the offender is an officer or
employee of the government or
 CRIMINAL LAW II ACJUCO 66

b. Public officer who issued a false

certificate of merit of service, good
conduct or similar circumstances

c. Private individual who falsified a

certificate under (1) and (2) OTHER FALSITIES

Article 175 Article 177

USING FALSE CERTIFICATES USURPATION OF AUTHORITY OR OFFICIAL
FUNCTIONS:
 ELEMENTS:
a. That a physician or surgeon has  2 ways of committing the crime:
issued a false medical certificate, a. By knowingly and falsely
or a public officer has issued a representing oneself to be an
false certificate of merit or officer, agent or representative of
service, good conduct, or similar any department or agency of the
circumstances, or a private Philippine gov’t or any foreign
person had falsified any of said gov’t.
certificates.
b. By performing an act pertaining to
b. That the offender knew that the any person in authority or public
certificate was false. officer of the Phil gov’t or foreign
gov’t under the pretense of such
c. That he used the same. official position, and without
being lawfully entitled to do so.

Article 176  In usurpation of authority: The mere act

MANUFACTURING AND POSSESSION OF of knowingly and falsely representing
INTRUMENTS OR IMPLEMENTS FOR oneself is sufficient. Not necessary that he
FALSIFICATION: performs an act pertaining to a public
officer.
 Acts punishable:
a. Making or introducing into the Elements
Philippines any stamps, dies or
marks or other instruments or 1. Offender knowingly and falsely
implements for counterfeiting or represents himself;
falsification
2. As an officer, agent or
b. Possessing with intent to use the representative of any
instruments or implements for department or agency of the
counterfeiting or falsification Philippine government or of
made in or introduced into the any foreign government.
Philippines by another person
 In usurpation of official functions: It is
 The implement confiscated need not form a essential that the offender should have
complete set performed an act pertaining to a person in
authority
 Constructive possession is also punished
 CRIMINAL LAW II ACJUCO 67

Elements  ELEMENTS (using fictitious name) :

a. That the offender uses a name
1. Offender performs any act; other than his real name.

2. Pertaining to any person in b. That he uses that fictitious name

authority or public officer of publicly.
the Philippine government or
any foreign government, or c. That the purpose of the offender
any agency thereof; is –
1. To conceal a crime,
3. Under pretense of official 2. To evade the execution of a
position; judgment, or
3. To cause damage to public
4. Without being lawfully entitled interest. (ex. Signing fictitious
to do so. name for a passport)

 A public officer may also be an offender The name of a person is what appears in his
 The act performed without being birth certificate. The name of a person refers to
lawfully entitled to do so must pertain: his first name, surname, and maternal name.
a. to the gov’t Any other name which a person publicly
b. to any person in authority applies to himself without authority of law is a
c. to any public office fictitious name.

Foreign government adverted to in this article

refers to public officers duly authorized to  ELEMENTS (concealing true name):
perform governmental duties in the Philippines. a. that the offender conceals –
The law cannot refer to other foreign
governments as its application may bring us to 1. his true name, and
legal problems which may infringe on
constitutional boundaries. 2. all other personal
circumstances.
If the offender commits the acts of usurpation
as contemplated herein, and he does it b. that the purpose is only to
because he is a rebel and pursuant to the conceal his identity.
crime of rebellion or insurrection or sedition, he
will not be liable under this article because What the offender does to violate or commit
what is attributed against him as a crime of this act is for him to conceal his true name and
usurpation is in fact one of the elements of other personal circumstances. His only motive
committing rebellion. in doing so is to conceal his identity. In
concealment of true name, the deception is
The elements of false pretense is necessary to done momentarily, just enough to conceal the
commit the crime of usurpation of official name of the offender. In the use of fictitious
function. name, the offender presents himself before the
public with another name.

Article 178 A person under investigation by the police who

USING FICTITIOUS NAME AND gives a false name and false personal
CONCEALING TRUE NAME circumstances, upon being interrogated, is
guilty of this crime.
 CRIMINAL LAW II ACJUCO 68

Use of Fictitious Name Concealing True calculated to deceive the common run of
(178) Name (178) people is sufficient.
Element of publicity must Publicity not
be present necessary The wearing of insignia, badge or emblem of
Purpose is to conceal a Purpose is to conceal rank of the members of the armed forced of the
crime, to evade the identity Philippines or constabulary (now PNP) is
execution of a judgement,
punished by Republic Act No. 493.
or to cause damage
When the uniform or insignia is used to
Commonwealth Act No. 142 (Regulating the
emphasize the pageantry of a play or drama or
Use of Aliases)
in moving picture films, the crime is not
No person shall use any name different from
committed.
the one with which he was registered at birth in
the office of the local civil registry, or with which
Three forms of false testimony
he was registered in the bureau of immigration
upon entry; or such substitute name as may
1. False testimony in criminal cases under
have been authorized by a competent court.
Article 180 and 181;
2. False testimony in civil case under
Exception: Pseudonym solely for literary,
Article 182;
cinema, television, radio, or other
3. False testimony in other cases under
entertainment and in athletic events where the
Article 183.
use of pseudonym is a normally accepted
practice.
False testimony, defined
It is the declaration under oath of a
Article 179
witness in a judicial proceeding which is
ILLEGAL USE OF UNIFORM OR INSIGNIA
contrary to what is true, or to deny the same, or
to alter essentially the truth.
 ELEMENTS:
a. That the offender makes use of
Nature of the crime of false testimony.
insignia, uniform or dress.
1. It cannot be committed through reckless
imprudence because false testimony
b. That the insignia, uniform or
requires criminal intent or intent to violate
dress pertains to an office not
the law is an essential element of the crime.
held by the offender or to a class
of persons of which he is not a
2. If the false testimony is due to honest
member.
mistake or error or there was good faith in
making the false testimony, no crime is
c. That said insignia, uniform or
committed.
dress is used publicly and
improperly.
Article 180
FALSE TESTIMONY AGAINST A
The wearing of a uniform, or insignia of a non-
DEFENDANT
existing office or establishment is not a crime. It
 ELEMENTS:
is necessary that the uniform or insignia
a. That there be a criminal
represents an office which carries authority,
proceeding.
respect, dignity, or influence which the public
looks up to.
b. That the offender testifies falsely
under oath against the defendant
So also, an exact imitation of a uniform or
therein.
dress is unnecessary; a colorable resemblance
 CRIMINAL LAW II ACJUCO 69

c. That the offender who gives false  False testimony need not in fact benefit the
testimony knows that it is false. defendant

d. That the defendant against whom  A statement of a mere opinion is not

the false testimony is given is either punishable
acquitted or convicted in a final
judgment (prescriptive period starts at  Conviction or acquittal is not necessary
this point) (final judgement is not necessary). The
 Requires criminal intent, can’t be committed false testimony need not influence the
through negligence. Need not impute guilt acquittal
upon the accused
 A defendant who voluntarily goes up on the
 The defendant must at least be sentenced witness stand and falsely imputes the
to a correctional penalty or a fine or must offense to another person the commission
have been acquitted of the offense is liable under this article. If
he merely denies the commission of the
 The witness who gave false testimony is offense, he is not liable.
liable even if the court did not consider his
testimony  Basis of penalty: gravity of the felony
charged against the defendant
The probative value of the testimonial evidence
is subject to the rules of evidence. It may not
be considered at all by the judge. But whether Article 182
the testimony is credible or not or whether it is FALSE TESTIMONY IN CIVIL CASES
appreciated or not in the context that the false
witness wanted it to be, the crime of false  ELEMENTS:
testimony is still committed, since it is punished a. That the testimony must be given in a
not because of the effect it produces, but civil case.
because of its tendency to favor the accused.
(People vs. Reyes) b. That the testimony must relate to the
issues presented in said case.
 Penalty is dependent upon sentence
imposed on the defendant c. That the testimony must be false.

d. That the false testimony must be

Article 181 given by the defendant knowing the
FALSE TESTIMONY IN FAVOR OF same to be false.
DEFENDANT in a criminal case:
e. That the testimony must be malicious
Elements: and given with an intent to affect the
1. A person gives false testimony; issues presented in the said case

2. In favor of the defendant;  Not applicable when testimony given in a

special proceeding (in this case, the crime
3. In a criminal case. is perjury)

 False testimony by negative statement is in  Basis of penalty: amount involved in the

favor of the defendant civil case
 CRIMINAL LAW II ACJUCO 70

Distinctions between perjury and false  A false affidavit to a criminal complaint may
testimony: give rise to perjury

PERJURY FALSE TESTIMONY Two contradictory sworn statements are not

1. Non-judicial 1. Given in a judicial sufficient to convict the affiant for the crime of
proceedings. proceeding. perjury. There must be evidence to show which
2. Statement or 2. Testimony need not is false. The same must be established or
testimony is required by be required by law. proved from sources other than the two
law.
contradictory statements. (People vs.
3. Amount involved is 3. Amount involved in
not material. civil cases is material.
Capistrano, 40 Phil. 902)
4. immaterial whether 4. It is always material in
statement or testimony criminal cases.  A matter is material when it is directed to
is favorable or not to the prove a fact in issue
accused.
The test of materiality is whether a false
statement can influence the court (People vs.
Article183 Bnazil).
FALSE TESTIMONY IN OTHER CASES AND
PERJURY IN SOLEMN AFFIRMATION  A “competent person authorized to
administer an oath” means a person who
ELEMENTS: has a right to inquire into the questions
a. That an accused made a presented to him upon matters under his
statement under oath or made an jurisdiction
affidavit upon a material matter.
There is no perjury if the accused signed and
b. That the statement or affidavit swore the statement before a person not
was made before a competent authorized to administer oath (People vs.
officer, authorized to receive and Bella David).
administer oath.
 There is no perjury through negligence or
c. That in that statement or affidavit, imprudence since the assertion of
the accused made a willful and falsehood must be willful and deliberate
deliberate assertion of a
falsehood, and Because of the nature of perjury, which is the
willful and corrupt assertion of a falsehood,
d. That the sworn statement or there is no perjury committed through reckless
affidavit containing the falsity is imprudence or simple negligence under Article
required by law. 365. Since admittedly perjury can only be
committed by means of dolo, then good faith or
 2 ways of committing perjury: lack of malice is a good defense when one is
a. by falsely testifying under oath indicted for the crime of perjury.
b. by making a false statement
 Even if there is no law requiring the
 Subornation of perjury: procures another statement to be made under oath, as long
to swear falsely. as it is made for a legal purpose, it is
sufficient
 Solemn affirmation: refers to non-judicial
proceedings and affidavits If there is no requirement of law to place
the statement or testimony under oath, there is
 CRIMINAL LAW II ACJUCO 71

no Perjury considering the phrases “oath in OFFERING FALSE TESTIMONY IN

cases in which the law so requires” in Article EVIDENCE
183.
 ELEMENTS:
The affidavit or sworn statement must be a That the offender offered in evidence
required by law like affidavit of adverse claim to a false witness or false testimony.
protect one’s interest on real property; or an
affidavit of good moral character to take the bar b That he knew the witness or the
examination. So if the affidavit was made but testimony was false.
the same is not required by law, even if the
allegations are false, the crime of perjury is not c That the offer was made in a judicial
committed. (Diaz vs. People, 191 SCRA 86) or official proceeding.

 Perjury is an offense which covers false  The false witness need not be convicted of
oaths other than those taken in the course false testimony. The mere offer is sufficient.
of judicial proceedings
The offender in this article knows that the
 False testimony before the justice of the witness to be presented is a false witness or
peace during the P.I. may give rise to the that the witness will lie while testifying. The
crime of perjury because false testimony in proceedings is either judicial or official. There is
judicial proceedings contemplates an actual a formal offer of testimonial evidence in the
trial where a judgment of conviction or proceedings. The witness is able to testify and
acquittal is rendered the offender, knowing the testimony is given by
the witness to be false, nevertheless offers the
 A person who knowingly and willfully same in evidence. In this case, the person
procures another to swear falsely commits offering the false testimony must have nothing
subornation of perjury and the witness to do in the making of the false testimony. He
suborned does testify under circumstances knows that the witness is false and yet he asks
rendering him guilty of perjury. him to testify and thereafter offers the
testimony in evidence. So if the offeror, aside
 The false testimony is not in a judicial from being such, is also the person responsible
proceeding in inducing or convincing the false witness to
lie, Article 184 will not apply. The applicable
False testimony vs. Perjury article will be Article 180, 181, 182, or 183 as
When one testifies falsely before the court, the the case may be. The offenders in this case will
crime committed is false testimony. If one be charged with perjury; the inducer as
testifies falsely in a non-judicial proceeding, the principal by inducement and the induced party
crime committed is perjury. In false testimony, as the principal by direct participation.
it is not required that the offender asserts a
falsehood on a material matter. It is enough It is for this reason that subornation of
that he testifies falsely with deliberate intent. In perjury is no longer treated as a specific
perjury, the witness must testify or assert a fact felony with a separate article of its own.
on a material matter with a full knowledge that Nevertheless, it is a crime defined and
the information given is essentially contrary to punished under the Revised Penal Code. The
the truth. Material matter means the main fact crime committed by one who induces another
which is the subject or object of the inquiry. to testify falsely and the person who agrees
and in conspiracy with the inducer, testifies
falsely, is perjury. (People vs. Padol, 66 Phil.
Article 184 365)
 CRIMINAL LAW II ACJUCO 72

a. Combination to prevent free

competition in the market

Elements

1. Entering into any contract or

agreement or taking part in any
FRAUDS conspiracy or combination in
the form of a trust or
Article 185 otherwise;
MACHINATIONS IN PUBLIC AUCTION
2. In restraint of trade or
 ELEMENTS: commerce or to prevent by
a That there be a public auction. artificial means free
competition in the market.
b That the accused solicited any gift or
a promise from any of the bidders. b. By entering into a contract or
agreement or taking part in any
c That such gifts or promise was the conspiracy or combination in the
consideration for his refraining from form of a trust or otherwise, in
taking part in that public auction. restraint of trade or commerce or
prevent by artificial means free
d That the accused had the intent to competition in the market (It is
cause the reduction of the price of enough that initial steps are taken. It is
the thing auctioned. not necessary that there be actual
restraint of trade)

 ELEMENTS OF ATTEMPTING TO CAUSE c. Monopoly to restrain free

BIDDERS TO STAY AWAY: competition in the market
a That there be a public auction.
Elements
b That the accused attempted to cause
the bidders to stay away from that 1. By monopolizing any
public auction merchandise or object of trade
or commerce, or by combining
c That it was done by threats, gifts, with any other person or
promises, or any other artifice. persons to monopolize said
merchandise or object;
d That the accused had the intent to
cause the reduction of the price of 2. In order to alter the prices
the thing auctioned. thereof by spreading false
rumors or making use of any
other artifice;
Article 186
MONOPOLIES AND COMBINATIONS IN 3. To restrain free competition in
RESTRAINT OF TRADE: the market

 Acts punished: d. Manufacturer, producer or processor

or importer combining, conspiring or
agreeing with any person to make
 CRIMINAL LAW II ACJUCO 73

transactions prejudicial to lawful

commerce or to increase the market  Aggravated if items are:
price of the merchandise. a. food substance
b. motor fuel or lubricants
Elements c. goods of prime necessity

1. Manufacturer, producer,
processor or importer of any
merchandise or object of Article 187
commerce; IMPORTATION AND DISPOSITION OF
FALSELY MARKED ARTICLES OR
2. Combines, conspires or agrees MERCHANDISE MADE OF GOLD, SILVER,
with any person; OR OTHER PRECIOUS METALS OR THEIR
ALLOYS
3. Purpose is to make
transactions prejudicial to  ELEMENTS:
lawful commerce or to a That the offender imports, sells or
increase the market price of disposes of any of those articles or
any merchandise or object of merchandise.
commerce manufactured,
produced, processed, b That the stamps, brands, or marks or
assembled or imported into the those articles or merchandise fails to
Philippines. indicate the actual fineness or quality
of said metals or alloys.
 Person/s liable:
a. manufacturer c That the offender knows that the said
b. producer stamp, brand, or mark fails to
c. processor indicate the actual fineness or quality
d. importer of the metals or alloys.

 Crime is committed by: To be criminally liable, it is important to

a. combining establish that the offender knows the fact that
b. conspiring the imported merchandise fails to indicate the
c. agreeing with another person actual fineness or quality of the precious metal.
If the importer has no expertise on the matter
 The purpose is: such that he has no way of knowing how the
a. to make transactions prejudicial to lawful fraud was committed, the existence of such
commerce fact may be seriously considered as a defense.
b. to increase the market price of any
merchandise or object of commerce What the law punishes herein is the selling of
manufactured, produced, processed, misbranded goods made of gold, silver and
assembled or imported into the Phil other precious metals. Therefore, it must be
shown that the seller knows that the
 Also liable as principals: merchandise is misbranded. Hence,
a. corporation/association dishonesty is an essential element of the
b. agent/representative crime.
c. director/manager – who willingly
permitted or failed to prevent
commission of above offense Article 188
 CRIMINAL LAW II ACJUCO 74

SUBSTITUTING – ALTERING TRADE-MARK,  Must not be another manufacturer

TRADENAME, OR SERVICE otherwise unfair competition
MARK
Take note that after making the substitution the
 Acts punishable: goods are displayed in the store or market for
a By (a) substituting the trade name sale, Article 188 is already committed even if
(t/n) or trademark (t/m) of some other no customer comes to buy any of the goods on
manufacturer or dealer or a colorable display. The mere offer for sale to the public
imitation thereof, for the t/n or t/m of consummates the crime.
the real manufacturer or dealer upon
any article of commerce and (b) The pendency of the administrative aspect of
selling the same. the case is not a prejudicial question in the
resolution of the criminal case.
b By selling or by offering for sale such
article of commerce, knowing that Article 189
the t/n or t/m has been fraudulently UNFAIR COMPETITION, FRAUDULENT
used REGISTRATION OF TRADENAME,
TRADEMARK SERVICE MARK,
c By using or substituting the service FRAUDULENT DESIGNATION OF ORIGIN,
mark of some other person, or a AND FALSE DESCRIPTION
colorable imitation of such marks, in
the sale or advertising of services  Acts punished:
a Unfair competition by selling his
d By printing, lithographing or goods, giving them the general
reproducing t/n, t/m or service mark appearance of the goods of another
of one person, or a colorable manufacturer or dealer
limitation thereof, to enable another
person to fraudulently use the same, b Fraudulent designation of origin;
knowing the fraudulent purpose for false description by (a) affixing to his
which it is to be used. goods or using in connection with his
services a false designation of origin; or
 If a particular person is defrauded by the any false description or representation,
offender; as in the case of locally and (b) selling such goods or services
manufactured goods, which the offender, by
altering the label, are made to appear as c Fraudulent registration by procuring
imported articles and sold to a particular fraudulently from the patent office the
person, the crime committed is undoubtedly registration of t/m, t/m or service mark.
estafa as far as the particular person is
concerned. But if the falsely mislabeled  ELEMENTS:
goods are displayed in a store and offered a That the offender gives his goods the
for sale to the public in general, the crime general appearance of the goods of
committed is punished under Article 188. another manufacturer or dealer
So, if the deception is isolated and is
confined to a particular person or group of b That the general appearance is
persons, estafa is committed. If the fraud is shown in the (a) goods themselves,
employed against the public, Article 188 is or in the (b) wrapping of their
violated. packages, or in the (c) device or
words therein, or in (d) any other
feature of their appearance
 CRIMINAL LAW II ACJUCO 75

considered a property right which must

c That the offender offers to sell or therefore be protected. In unfair competition,
sells those goods or gives other the offended party has identified in the mind of
persons a chance or opportunity to the public the goods he manufactures to
do the same with a like purpose. distinguish it from the goods of the other
manufacturers. In infringement of trade name
d That there is actual intent to deceive or trademark, the offender uses the trade name
the public or defraud a competitor. or trademark of another in selling his goods,
while in unfair competition, the offender gives
Under Republic Act No. 166, Section 29, his goods the general appearance of the goods
paragraph 2, unfair competition is defined as of another manufacturer and sells the same to
follows: It consists in employing deception or the public. (E. Spinner & Co. vs. New
any other means contrary to good faith by Hesslein Corp., 54 Phil. 224)
which any person shall pass off the goods TITLE FIVE
manufactured by him or in which he deals, or CRIMES RELATED TO OPIUM AND OTHER
his business, or services for those of the one PROHIBITED DRUGS (190-194)
having established goodwill, or committing any
acts calculated to produce such result. COMPREHENSIVE DANGEROUS DRUGS
ACT OF 2002
The true test of unfair competition is (RA No. 9165)
whether certain goods have been clothed with
an appearance which is likely to deceive the I. Acts Punishable:
ordinary purchaser exercising ordinary care. a. importation of prohibited drugs
(U.S. vs. Manuel, 7 Phil. 221) b. sale, administration, delivery,
distribution and transportation of
For unfair competition to take place, it must be prohibited drugs
the manufacturer of the goods who will cloth or c. maintenance of a den, dive or resort
label his goods with the trade name or for prohibited drug users
trademark of another manufacturer, who has d. being employees or visitors of drug
established a good name or good will in the den
mind of the public because of the quality of the e. manufacture of prohibited drugs
merchandise manufactured by him. The f. possession or use
imitator is also a manufacturer of the same g. cultivation of plants
kind of product but of inferior quality. By h. failure to comply with provisions
labeling his product with the trademark or trade relative to keeping of records of
name of said manufacturer, he profits from the prescription
goodwill of another. i. unnecessary prescription
j. possession of opium pipe and other
If the labeling or clothing of the goods is not paraphernalia
done by another manufacturer, the crime k. Importation, sale, etc. of regulated
committed is not unfair competition but drugs
substitution of trademark or trade name under
Article 188. DRUG SYNDICATE – any organized group of
two(2) or more persons forming or joining
When the honorable Supreme Court declared together with the intention of committing
that unfair competition is broader and more any offense prescribed under the act.
inclusive than infringement of trade name or
trademark. In infringement of trade name or PLANTING OF EVIDENCE – the willful act by
trademark, the offended party has a peculiar any person of maliciously and
symbol or mark on his goods which is surreptitiously inserting, placing, adding or
 CRIMINAL LAW II ACJUCO 76

attaching directly or indirectly, through any the death of the person using the same in
overt or covert act, whatever quantity of any such den, dive or resort, the maximum of
dangerous drug and/or controlled precursor the penalty shall be imposed.
and essential chemical in the person,
house, effects, or in the immediate vicinity  Manufacture of prohibited/regulated
of an innocent individual for the purpose of drugs.
implicating, incriminating or imputing the
commission of any violation of this Act.  Possession of prohibited/regulated
drugs.
P D E A – Philippine Drug Enforcement Unit
PENALTY :
 Importation of prohibited/regulated
drugs. a. Life to death & fine of 500,000 to 10 million
10 gms. Opium, morphine, heroine, cocaine,
PENALTY : Life to death & fine of 500,000 marijuana resin and Ecstasy.
to 10 million regardless of the Quantity 50 gms. Shabu
and purity involved 500 gms. Marijuana
MAXIMUM PENALTY :
1) Use of diplomatic Passport b. Life Imprisonment and a fine of
2) Financier P400,000.00-P500,000.00
10-50 gms. Shabu
 Sale, administration, delivery,
distribution and transaction of c. 20 years to Life and a fine of 400,000.00-
prohibited/regulated drugs. 500,000.00
5-10 gms. Shabu
- NOT BAILABLE
d. 12 – 20 years and a fine of 300,000.00-
PENALTY : Life to death & fine of 500,000 400,000.00
to 10 million regardless of the Quantity Less than 5 gms. Of any dangerous drugs
and purity involved ( includes BROKER )
Qualifying Circumstances –  Possession of paraphernalia
1) if the victim of the offense is a minor or 6 mos. – 4 yrs. & fine of 10,000 – 50,000
should a prohibited/regulated drug involve
in any offense under this section be the Use of Dangerous Drugs – A person
proximate cause of the death of a victim apprehended or arrested, who is found to
thereof, the maximum penalty herein shall be positive for use of any dangerous drug,
be imposed. after a confirmatory test, shall be imposed a
2) Financier penalty of a minimum of six (6) months
3) Sale made within 100m from school rehabilitation in a government center for the
first offense, subject to the provisions of
 Maintenance of a den, dive, or resort for Article VIII of this Act.
prohibited/regulated drug users.
** Property escheated in favor of the If apprehended using any dangerous drug
government act for the second time, he/she shall suffer
Qualifying Circumstance – where a the penalty of imprisonment ranging from
prohibited/regulated drug is administered, six (6) years and one (1) day to twelve(12)
delivered, or sold to a minor who is allowed years and a fine ranging from Fifty
to use the same in such place, or should a thousand pesos (P50,000.00) to Two
prohibited drug be the proximate cause of hundred thousand pesos (P200,000.00);
 CRIMINAL LAW II ACJUCO 77

Persons Liable: Physician or dentist who

Provided, That this section shall not be shall prescribe any prohibited/regulated
applicable where the person tested is also drug for any person whose
found to have in his/her possession such physical/physiological condition does not
quantity of any dangerous drug provided for require the use of thereof.
under Section 11 of this Act, in which case
the provisions stated therein shall apply. Confiscation and forfeiture of the proceeds
or instruments of the unlawful act,
 Cultivation of plants which are sources including the properties of the proceeds
of prohibited drugs. derived from the illegal trafficking of
Penalty - Life to death and a fine of dangerous drugs.
P500,000.00 to P10 Million
Forfeited infavor of the government
a Note: The land/portions thereof and/or
greenhouses in which any of the said After the conviction in the Regional Trial Court
plants is cultivated or cultured shall be in the appropriate criminal case filed, the Court
confiscated and escheated to the State, shall immediately schedule a hearing for the
unless the owner thereof can prove that confiscation and forfeiture of all the proceeds
he did not know of such cultivation or of the offense and all the assets and properties
culture despite the exercise of due of the accused either owned or held by him or
diligence on his part. in the name of some other persons if the same
shall be found to be manifestly out of
b Qualifying Circumstance – proportion of his/her income; Provided,
1. If the land involved is part of the public however, That if the forfeited property is a
domain, the maximum of the penalty herein vehicle, the same shall be auctioned off not
provided shall be imposed. later than five (5) days upon order of
2. Maximum penalty imposed on financier confiscation or forfeiture.

 Failure to keep records of prescription, During the pendency of the case in the
sales, purchases, acquisitions and/or Regional Trial Court, no property, or income
deliveries of prohibited/regulated drugs derived therefrom, which may be confiscated
and forfeited, shall be disposed, alienated or
Persons liable: transferred and the same shall be in custodia
Pharmacist, Physician, Dentist, legis and no bond shall be admitted for the
Veterinarian, Manufacturer, Wholesaler, release of the same.
Importer, Distributor, Dealer, Retailer
Custody and disposition of confiscated,
seized and/or surrendered dangerous drugs
 Unlawful prescription of
prohibited/regulated drugs PDEA in charge and custody for proper
Penalty – life to death and a fine of disposition
P500,000 to P10 Million
Procedure in Disposal
 Unnecessary prescription of 1. Apprehending team immediately after
prohibited/regulated drugs seizure shall make physical inventory and
Penalty – 12 to 20 years and fine of photograph the seized drugs in the presence of
P100,000 to P500,000 plus revocation of the accused or his counsel, a representative of
license the media and DOJ and any elected public
official who shall sign the copies of the
inventory.
 CRIMINAL LAW II ACJUCO 78

 Possession of opium pipe, equipment,

2. Within 24 hours upon confiscation/seizure of apparatus or any paraphernalia fit or
dangerous drugs, such drug shall be submitted intended for smoking, consuming,
to the PDEA forensic laboratory for a administering, injecting, ingesting, or
qualitative and quantitative examination. otherwise using opium or any other
prohibited drug, shall be prima facie
3. Certification of the forensic examination evidence that the possessor has smoked,
results shall be issued within 24 hours. consumed, administered to himself, injected
or used a prohibited drug.
4. After the filing of the criminal case, the
proper court shall conduct and ocular  Attempt and conspiracy to commit the
inspection within 72 hours of the confiscated, following offenses:
seized and/or surrendered dangerous drugs. a Importation of dangerous drugs

5. After ocular inspection by the court, PDEA b Sale, administration, delivery,

shall destroy or burn the confiscated, seized distribution and transportation of
and/or surrendered dangerous drugs within 24 dangerous drugs
hours in the presence of the accused or his
counsel, representative of the media and the c Maintenance of a den, dive or resort for
DOJ, civil society groups and any elected prohibited drugs
public officer.
d Manufacture of dangerous drugs
6. PDEA shall issue a certification of such
destruction and samples of the dangerous e Cultivation or culture of plants which are
drugs shall be submitted to the court. sources of prohibited drugs

Plea-Bargaining  Other persons liable:

Any person charged under any commission of a If the violation of the Act is committed by
this act regardless of the imposable penalty a partnership, corporation, association
shall not be allowed to avail of the provision on or any judicial person, the partner,
plea-bargaining. president, director, or manager who
consents to or knowingly tolerates such
Probation Law violation shall be held criminally liable as
Any person convicted for drug trafficking co-principal.
regardless of the penalty imposed cannot avail
of the privilege granted by the probation law. b Partner, president, director, manager,
officer or stockholder, who knowingly
Qualifying Aggravating Circumstance authorizes, tolerates, or consents to the
A positive finding for the use of dangerous use of a vehicle, vessel, or aircraft as an
drugs shall be a qualifying aggravating instrument in the importation, sale,
circumstance in the commission of a crime by delivery, distribution or transportation of
an offender and the application of the penalty dangerous drugs, or to the use of their
provided for in the RPC. equipment, machines or other
instruments in the manufacture of any
dangerous drugs, if such vehicle,
vessel, aircraft, equipment, or other
instrument, is owned or under the
control and supervision of the
 CRIMINAL LAW II ACJUCO 79

partnership, corporation, association or

judicial entity to which they are affiliated. 5. Officers and members of the military,
police and other law enforcement agencies
Criminal liability of a public officer or – annual mandatory
employee for misappropriation,
misapplication or failure to account for 6. All persons charged before the
the confiscated, seized and/or prosecutor’s office with a criminal offense
surrendered dangerous drugs having an impossible penalty of
imprisonment of not less than six (6) years
Penalty - life to death and a fine of and one (1) day shall have to undergo a
P500,000.00 to P10 Million in addition to mandatory drug test
absolute perpetual disqualification from any
public office. 7. All candidates for public office whether
appointed or elected both in the national or
Any elective local or national official found local government shall undergo a
to have benefited from the proceeds of the mandatory drug test.
trafficking of dangerous drugs or have
received any financial or material Issuance of False or fraudulent drug test
contributions from persons found guilty of results (whether willfully or through gross
drug trafficking dangerous drugs, shall be negligence)
removed from office and perpetually
disqualified from holding any elective or Penalty – 6 to 12 years and fine P100,000.00
appointive positions in the government. to P500,000.00
Additional penalty – revocation of license to
Planting of Evidence practice and closure of the drug testing center
Any person who is found guilty of planting
any dangerous drug regardless of the II. For the purpose of enforcing the
quantity and purity, shall suffer the penalty provisions of this Act, all school heads,
of death. supervisors and teachers shall be
deemed to be persons in authority and,
Drug Testing as such, are vested with the power to
1. Applicants for driver’s license - apprehend, arrest, or cause the
mandatory apprehension or arrest of any person
who shall violate any of the said
2. Applicants for firearms license and for provision.
permit to carry - mandatory
a. NOTE: They shall be considered as
3. Students of secondary and tertiary persons in authority if they are in the
schools – random (school shall shoulder school or within its immediate
expenses) vicinity, or beyond such immediate
vicinity if they are in attendance in
4. Officers and employees of private and any school or class function in their
public offices – random (employer shall official capacity as school heads,
shoulder expenses) supervisors or teachers.
Any officer or employee found positive for
use of dangerous drug shall be dealt with b. Any teacher or school employee who
administratively which shall be a ground for discovers or finds that any person in
suspension or termination subject to Art. the school or within its immediate
282 of the Labor Code and pertinent vicinity is violating this Act shall have
provisions of the Civil Service Law. the duty to report the violation to the
 CRIMINAL LAW II ACJUCO 80

school head or supervisor who shall, proceedings and transmit records of the
in turn, report the matter to the case to the Board.
proper authorities. Failure to report in
either case shall, after hearing, f. After his rehabilitation, he shall be
constitute sufficient cause for prosecuted for such violation. In case of
disciplinary action. conviction, the judgement shall, if the
accused is certified by the treatment and
III. Rules regarding rehabilitation of drug rehabilitation center to have maintained
dependents good behavior, indicate that he shall be
given full credit for the period he was
Voluntary submission confined in the center.
a. Voluntary submission of a drug
dependent to confinement, treatment NOTE: When the offense is use of
and rehabilitation by the drug dependent dangerous drugs and the accused is not
himself or through his parent, guardian a recidivist, the penalty thereof shall be
or relative within the 4th civil degree of deemed to have been served in the
consanguinity or affinity, in a center and center upon his release therefrom.
compliance with such conditions
therefor as the Dangerous Drugs Board g. The period of prescription of the offense
may prescribe shall exempt from charged shall not run during the time
criminal liability for possession or use of that the respondent/accused is under
the prohibited/regulated drug. detention or confinement in a center.
(Applicable only to those liable for
use of dangerous drugs and not to h. Requisites of suspension of
possession and sale) sentence for first offense in a minor:

b. Should the drug dependent escape from 1. If accused is a minor (under 18 years
the center, he may submit himself for of age at the time of the commission
confinement within 1 week from the date of the offense but not more than 21
of his escape, of his parent guardian or years of age when the judgement
relative may, within the same period should have been promulgated.
surrender him for confinement.
2. He has not been previously
c. Upon application of the Board, the Court convicted of violating any provision
shall issue an order for recommitment if of this Act or of the RPC or placed on
the drug dependent does not resubmit probation.
himself for confinement or if he is not
surrendered for recommitment.  Sentence shall be deferred and
the accused shall be placed on
d. If, subsequent to such recommitment, probation under the supervision
he should escape again, he shall no of the Board.
longer be exempt from criminal liability
for the use or possession of any  In case of violation of conditions
dangerous drug. of pardon, court shall pronounce
judgment of conviction and he
e. If a person charged with an offense is shall serve sentence.
found by the fiscal or by the Court at any
stage of the proceedings, to be a drug  If accused did not violate
dependent, the fiscal or court as the conditions of probation, case
case may be, shall suspend all further shall be dismissed upon
 CRIMINAL LAW II ACJUCO 81

expiration of the designated Testifying as Prosecution Witnesses in

period. Dangerous Drugs Cases – Any member of
law enforcement agencies or any other
Compulsory submission government official and employees who, after
If a person charged with an offense where the due notice, fails or refuses intentionally or
imposable penalty is imprisonment of not negligently, to appear as a witness for the
more than six (6) years and one (1) day, and is prosecution in any proceedings, involving
found by the prosecutor or by the court, at any violations of this Act, without any valid reason,
stage of the proceedings, to be a drug shall be punished with imprisonment of not less
dependent, the prosecutor of the court as the than twelve (12) years and one (1) day to 20
case may be, shall suspend all further years and a fine of not less than P500,000.00,
proceedings and transmit copies of the record in addition to the administrative liability he/she
of the case to the Board. may be meted out by his/her immediate
superior and/or appropriate body.
Jurisdiction Over Dangerous Drug Cases
The immediate superior of a member of the law
Section 90. Jurisdiction – The Supreme enforcement agency or any other government
Court shall designate special courts from employee mentioned in the preceding
among the existing Regional Trial Court in paragraph shall be penalized with
each judicial region to exclusively try and hear imprisonment of not less than two (2) months
cases involving violations of this Act. The and one (1) day but not more than six (6) years
number of court designated in each judicial and a fine of not less than P10,000.00 but not
region shall be based on population and the more than P50,000 and in addition, perpetual
number of cases pending in their respective absolute disqualification from public office if
jurisdiction. despite due notice to them and to the witness
concerned, the former does not exert
The DOJ shall designate special prosecutors to reasonable effort to present the latter to the
exclusively handle cases involving violations of court.
this Act.
The member of the law enforcement agency or
The preliminary investigation of cases filed any other government employee mentioned in
under this Act shall be terminated within a the preceding paragraphs shall not be
period of thirty (30) days from the date of their transferred or re-assigned to any other
filing. territorial jurisdiction during the pendency of
the case in court. However, the concerned
When the preliminary investigation is member of the law enforcement agency or
conducted by a public prosecutor and a government employee may be transferred or
probable cause is established, the re-assigned for compelling reasons; Provided,
corresponding information shall be filed in court That his/her immediate superior shall notify the
within 24 hours from the termination of the court where the case is pending of the order of
investigation. If the preliminary investigation is transfer or re-assign, within 24 hours from its
conducted by a judge and a probable cause is approval; Provided further, That his/her
found to exist, the corresponding information immediate superior shall be penalized with
shall be filed by the proper prosecutor within 48 imprisonment of not less than two (2) months
hours from the receipt of the records of the and one (1) day but not less than six (6) years
case. and a fine of not less than P10,000.00 but not
more than P50,000.00 and in addition,
Section 91. Responsibility and Liability of perpetual absolute disqualification from public
Law Enforcement Agencies and Other office, should he/she fail to notify the court of
Government Officials and Employees such order to transfer or re-assign.
 CRIMINAL LAW II ACJUCO 82

fact of sale or delivery is proved by

Prosecution and punishment under this Section prosecution, the burden to prove that
shall be without prejudice to any liability for the accused is not aware that drugs
violation of any existing law. are prohibited falls on the defense (P
v. Aranda)
Section 92. Delay and Bungling in the
Prosecution of Drug Cases. - Any 4. P v. Angelito Manalo – burden of
government officer or employee tasked with the proving the authority to possess
prosecution of drug-related cases under this shabu is a matter of defense
Act, who, through patent laxity, inexcusable
neglect, unreasonable delay or deliberately 5. P v. Hilario Moscaling – court may
causes the unsuccessful prosecution and/or take judicial notice of the word
dismissal ranging from 12 years and 1 day to “shabu”
20 years without prejudice to his/her
prosecution under the pertinent provisions of 6. Criminal liabilities of a policeman
the Revised Penal Code. who sold the drugs confiscated from
a pusher: violation of RA 9165 and
a Buy Bust Operation – no law or rule to malversation under RPC.
require policemen to adopt a uniform
way of identifying BUY MONEY (P v. e Planting evidence – to implicate
Abedes) another

b Absence of ultraviolet powder is not fatal f Buy Bust Operation – form of

in the prosecution entrapment (P v. Alberto) – not
necessary to have prior police
c Transportation/importation of MJ – surveillance (P v. Carlos Franca)
immaterial whether there may or may
not be a distinction for the MJ g Possession – constructive or actual –
not necessary to adduce the marked
d Distinguish Entrapment and money as evidence (P v. Romeo
Instigation: Macara)

1. If prosecution can prove the crime h Separate crimes – sale/possession of

without presenting the informer or MJ found in his possession after he was
asset – not necessary because their frisked but he can’t be convicted for
testimonies are merely corroborative. possession of MJ that he sold
Poseur buyer – it depends on
whether the prosecution can prove i If victim is minor or drug is proximate
the crime without their testimonies (P cause of death – max penalty is
v. Rosalinda Ramos) imposed

2. Under the RA, special aggravating 1. First offense of a minor – suspension

circumstance if a crime has been of sentence
committed while the accused was
high on drugs (P v. Anthony Belgar) CONDITIONS:
 under 18 at time of
3. Delivery or Sale of Prohibited Drugs commission but not more than 21
– the accused must be aware that at time when judgment was
what he is selling or delivering was promulgated
prohibited drug. But the moment the
 CRIMINAL LAW II ACJUCO 83

 found guilty of possession or

use of prohibited or regulated
drugs

 not been previously convicted

of violating any provision of this
Act or the RPC

 not been placed on probation

 defer sentence, place on

probation for 6 months to 1 year

 violation of probation – TITLE SIX

pronounce sentence – convict CRIMES AGAINST PUBLIC MORALS
and serve sentence
Crimes against public morals
 no violation – discharge him
and dismiss the proceeding 1. Gambling (Art. 195);
 if minor is drug dependent – 2. Importation, sale and possession of lottery
commit to a center for treatment tickets or advertisements (Art. 196);
and rehabilitation
3. Betting in sport contests (Art. 197);

4. Illegal betting on horse races (Art. 198);

5. Illegal cockfighting (Art. 199);

6. Grave scandal (Art. 200);

7. Immoral doctrines, obscene publications

and exhibitions (Art. 201); and

8. Vagrancy and prostitution (Art. 202).

Article 195. What Acts Are Punishable in

Gambling

Acts punished

1. Taking part directly or indirectly in –

a. any game of monte, jueteng, or

any other form of lottery, policy,
banking, or percentage game,
dog races, or any other game or
scheme the results of which
 CRIMINAL LAW II ACJUCO 84

depend wholly or chiefly upon for a chance to obtain a prize. (US vs. Filart,
chance or hazard; or wherein et al., 30 Phil. 80)
wagers consisting of money,
articles of value, or Pinball machines or slot machines are
representative of value are made; considered gambling devices because the
or result depends upon chance or hazard.

b. the exploitation or use of any If the prizes do not come out of the funds or
other mechanical invention or contributions of the participants, there is no
contrivance to determine by lottery. (Uy vs. Palomar, 27 SCRA 287)
chance the loser or winner of
money or any object or
representative of value;
Article 196
2. Knowingly permitting any form of IMPORTATION, SALE AND POSSESSION OF
gambling to be carried on in any place LOTTERY TICKETS OR ADVERTISEMENTS
owned or controlled by the offender;
Acts punished
3. Being maintainer, conductor, or banker
in a game of jueteng or similar game; 1. Importing into the Philippines from any
foreign place or port any lottery
4. Knowingly and without lawful purpose ticket or advertisement; or
possessing lottery list, paper, or other
matter containing letters, figures, signs 2. Selling or distributing the same in
or symbol which pertain to or are in any connivance with the importer;
manner used in the game of jueteng or
any similar game. 3. Possessing, knowingly and with intent
to use them, lottery tickets or
What is gambling? advertisements; or
It is a game or device or method, the
result of which depends wholly or chiefly upon 4. Selling or distributing the same without
chance or hazard. So, if the game depends connivance with the importer of the
wholly upon skill or ability of the players, there same.
is no gambling.
Note that possession of any lottery ticket or
The manner of determining whether the game advertisement is prima facie evidence of an
played is prohibited or not is whether the result intent to sell, distribute or use the same in the
will depend wholly or chiefly upon chance or Philippines.
hazard.

Significantly, if the game has been identified Article 197.

and declared as a form of gambling by express BETTING IN SPORT CONTESTS
provision of law, there will be no need or
requirement to go into the methods upon how This article has been repealed by Presidential
the game is played. Decree No. 483 (Betting, Game-fixing or
Point-shaving and Machinations in Sport
What is lottery? Contests):
It is a scheme for the distribution of
prizes by chance among persons who have
paid, or agreed to pay, a valuable consideration
 CRIMINAL LAW II ACJUCO 85

PENALIZING BETTING, GAME-FIXING OR When horse races not allowed:

POINT-SHAVING AND
MACHINATIONS IN SPORTS CONTESTS  July 4 (Republic Act No. 137);
PD 483
 December 30 (Republic Act No. 229);
 Acts Punishable:
a. Betting: Betting money or any object  Any registration or voting days (Republic
or article of value of representative Act No. 180, Revised Election Code);
value upon the result of any game, and
races and other sports contests.
 Holy Thursday and Good Friday
b. Game-fixing: any arrangement, (Republic Act No. 946).
combination, scheme or agreement by
which the result of any game, races, or
sports contests shall be predicated Article 199.
and/or known other than on the basis of ILLEGAL COCKFIGHTING
the honest playing skill or ability of the
players or participants. This article has been modified or repealed by
Presidential Decree No. 449 (The
c. Point-shaving: any such Cockfighting Law of 1974):
arrangement combination, scheme or
agreement by which the skill or ability of
any player or participant in a fame, COCKFIGHTING LAW OF 1974
races, or sports contests to make points PD 449
of scores shall be limited deliberately in
order to influence the result thereof in I. Scope – This law shall govern the
favor of one or other team, player or establishment, operation, maintenance
participant. and ownership of cockpits.

d. Game Machination: any other II. Rules:

fraudulent, deceitful, unfair or dishonest
means, method, manner or practice A. Only Filipino citizens not otherwise
employed for the purpose of influencing inhibited by existing laws shall be
the result of any game, races or sports allowed to own, manage and
contest. operated cockpits.

Article 198. B. Only one cockpit shall be allowed in

ILLEGAL BETTING ON HORSE RACE each city or municipality with a
population of 100,000 or less.
Acts punished
C. Cockpits shall be constructed and
1. Betting on horse races during periods not operated within the appropriate
allowed by law; areas as prescribed in the Zoning
Law or ordinance.
2. Maintaining or employing a totalizer or other
device or scheme for betting on races or D. When allowed:
realizing profit therefrom during the periods
not allowed by law. 1. Cockfighting shall be allowed
only in licensed cockpits during
 CRIMINAL LAW II ACJUCO 86

Sundays and legal holidays and

during local fiestas for not more E. No gambling of any kind shall be
than 3 days; or permitted on the premises of the
cockpit or place of cockfighting
2. During provincial, city or during cockfights.
municipal, agricultural,
commercial or industrial fair, F. City or municipal mayors are
carnival or exposition for a similar authorized to issue licenses for the
period of 3 days upon resolution operation and maintenance of
of the province, city or cockpits.
municipality where such fair,
carnival or exposition is to be
held, subject to the approval of Presidential Decree No. 1602 (Simplifying
the Chief of Constabulary or his and Providing Stiffer Penalties for
authorized representative. Violations of Philippine Gambling Laws)

Section 1. Violations and Penalties. --

Limitations: The penalty of prision mayor in its medium
a) No cockfighting on the occasion degree or a fine ranging from Five Hundred
of such fair, carnival or exposition Pesos to Two Thousand Pesos and in case of
shall be allowed within the month recidivism the penalty of prision correccional in
of the local fiesta or for more than its medium degree or a fine of ranging from
2 occasions a year in the same One Thousand Pesos to Six Thousand Pesos
city of municipality. shall be imposed upon:

b) No cockfighting shall be held on (a) Any person other than those

December 30, June referred to in the succeeding subsection who in
12,November 30, Holy Thursday, any manner, shall directly or indirectly take part
Good Friday, Election Day and in any game of cockfighting, jueteng, bookies
during registration days for such (jai- alai or horse racing to include game fixing)
election/referendum. and other lotteries, cara y cruz or pompiang
and the like, black jack, lucky nine, “pusoy” or
3. If the purpose is for the Russian Poker, monte, baccarat and other card
entertainment of foreign games, palk que, domino, mahjong, high and
dignitaries or for tourists, or for low, slot machines, roulette, pinball and other
returning balikbayans, or for the mechanical inventories or devices, dog racing,
support of national fund-raising boat racing, car raising and other races,
campaigns for charitable basketball, volleyball, boxing, seven-eleven
purposes as may be authorized dice games and the like and other contests to
by the Office of the President include game fixing, point shaving and other
upon resolution of a provincial machinations banking or percentage game, or
board, city or municipal council, any other game or scheme, whether upon
in licensed cockpits or in chance or skill, which do not have a franchise
playgrounds or parks. from the national government, wherein wagers
consisting of money, articles of value of
Limitations: This privilege shall representative of value are made;
be extended for only one time, for
a period not exceeding 3 days, (b) Any person who shall knowingly
within a year to a province, city or permit any form of gambling referred to in the
municipality. preceding subdivision to be carried on in
 CRIMINAL LAW II ACJUCO 87

inhabited or uninhabited places or any building, concept of gambling under it has been
vessel or other means of transportation owned changed by the new gambling law.
or controlled by him. If the place where
gambling is carried on has a reputation of a Before, the Revised Penal Code considered
gambling place or that prohibited gambling is the skill of the player in classifying whether a
frequently carried on therein or the place is a game is gambling or not. But under the new
public or government building or barangay hall, gambling law, the skill of the players is
the culprit shall be punished by the penalty immaterial.
provided for in its maximum period and a fine
of Six Thousand Pesos. Any game is considered gambling where there
are bets or wagers placed with the hope to win
The penalty of prision correccional in its a prize therefrom.
maximum degree and a fine of Six Thousand
Pesos shall be imposed upon the maintainer, Under this law, even sports contents like
conductor of the above gambling schemes. boxing, would be gambling insofar as those
who are betting therein are concerned.
The penalty of prision mayor in its Under the old penal code, if the skill of the
medium degree and temporary absolute player outweighs the chance or hazard
disqualification and a fine of Six Thousand involved in winning the game, the game is
Pesos shall be imposed if the maintainer, not considered gambling but a sport. It was
conductor or banker is a government official, or because of this that betting in boxing and
if a player, promoter, referee, umpire, judge or basketball games proliferated.
coach in cases of game-fixing, point-shaving
and other game machination. “Unless authorized by a franchise, any form of
gambling is illegal.” So said the court in the
The penalty of prision correccional in its recent resolution of the case against the
medium degree and a fine ranging from Five operation of jai-alai.
Hundred pesos to Two Thousand Pesos shall
be imposed upon any person who shall There are so-called parlor games which have
knowingly and without lawful purpose in any been exempted from the operation of the
hour of any day shall have in his possession decree like when the games are played during
any lottery list, paper, or other matter a wake to keep the mourners awake at night.
containing letter, figures, signs or symbols Pursuant to a memorandum circular issued by
which pertain to or in any manner used in the the Executive Branch, the offshoot of the
game of jueteng, jai-alai or horse racing exemption is the intentional prolonging of the
bookies and similar game or lottery which has wake of the dead by gambling lords.
taken place or about to take place.
As a general rule, betting or wagering
Section 2. Barangay Official. – Any determines whether a game is gambling or not.
barangay official in whose jurisdiction such Exceptions: These are games which are
gambling house is found and which house has expressly prohibited even without bets. Monte,
the reputation of a gambling place shall suffer jueteng or any form of lottery; dog races; slot
the penalty of prision correccional in its machines; these are habit-forming and
medium period and a fine ranging from Five addictive to players, bringing about the
Hundred to Two Thousand Pesos and pernicious effects to the family and economic
temporary absolute disqualifications. life of the players.

Mere possession of lottery tickets or lottery lists

While the acts under the Revised Penal Code is a crime punished also as part of gambling.
are still punished under the new law, yet the However, it is necessary to make a distinction
 CRIMINAL LAW II ACJUCO 88

whether a ticket or list refers to a past date or each merchandise and for his purchase,
to a future date. he gets a coupon which is to be dropped
at designated drop boxes to be raffled
Illustration: on a certain period.

X was accused one night and found in his The increase of the price is to answer
possession was a list of jueteng. If the date for the cost of the valuable prices that
therein refers to the past, X cannot be will be covered at stake. The increase
convicted of gambling or illegal possession of in the price is the consideration for the
lottery list without proving that such game was chance to win in the lottery and that
indeed played on the date stated. Mere makes the lottery a gambling game.
possession is not enough. If the date refers to
the future, X can be convicted by the mere But if the increase in prices of the
possession with intent to use. This will already articles or commodities was not general,
bring about criminal liability and there is no but only on certain items and the
need to prove that the game was played on the increase in prices is not the same, the
date stated. If the possessor was caught, fact that a lottery is sponsored does not
chances are he will not go on with it anymore. appear to be tied up with the increase in
prices, therefore not illegal.
There are two criteria as to when the lottery is
in fact becomes a gambling game: Also, in case of manufacturers, you
have to determine whether the increase
1. If the public is made to pay not only for in the price was due to the lottery or
the merchandise that he is buying, but brought about by the normal price
also for the chance to win a prize out of increase. If the increase in price is
the lottery, lottery becomes a gambling brought about by the normal price
game. Public is made to pay a higher increase [economic factor] that even
price. without the lottery the price would be
like that, there is no consideration in
2. If the merchandise is not saleable favor of the lottery and the lottery would
because of its inferior quality, so that the not amount to a gambling game.
public actually does not buy them, but
with the lottery the public starts If the increase in the price is due
patronizing such merchandise. In effect, particularly to the lottery, then the lottery
the public is paying for the lottery and is a gambling game. And the sponsors
not for the merchandise, and therefore thereof may be prosecuted for illegal
the lottery is a gambling game. Public is gambling under Presidential Decree No.
not made to pay a higher price. 1602.

Illustrations: (2) The merchandise is not really saleable

because of its inferior quality. A certain
(1) A certain supermarket wanted to manufacturer, Bhey Company,
increase its sales and sponsored a manufacture cigarettes which is not
lottery where valuable prices are offered saleable because the same is irritating
at stake. To defray the cost of the prices to the throat, sponsored a lottery and a
offered in the lottery, the management coupon is inserted in every pack of
increased their prices of the cigarette so that one who buys it shall
merchandise by 10 cents each. have a chance to participate. Due to the
Whenever someone buys from that coupons, the public started buying the
supermarket, he pays 10 cents more for cigarette. Although there was no price
 CRIMINAL LAW II ACJUCO 89

increase in the cigarettes, the lottery can required, it is sufficient if in public

be considered a gambling game place. For public knowledge, it may
because the buyers were really after the occur even in a private place; the
coupons not the low quality cigarettes. number of people who sees it is not
material).
If without the lottery or raffle, the public
does not patronize the product and  Grave scandal: consists of acts which are
starts to patronize them only after the offensive to decency and good customs.
lottery or raffle, in effect the public is They are committed publicly and thus, give
paying for the price not the product. rise to public scandal to persons who have
accidentally witnessed the acts

Under this decree, a barangay captain who is The crime of grave scandal is a crime against
responsible for the existence of gambling dens public morals. Necessarily, the offender must
in their own locality will be held liable and commit the crime in a public place or within the
disqualified from office if he fails to prosecute view of the public.
these gamblers. But this is not being
implemented. In grave scandal, the scandal involved refers
to moral scandal offensive to decency,
Gambling, of course, is legal when authorized although it does not disturb public peace. But
by law. such conduct or act must be open to the public
view.
Fund-raising campaigns are not gambling.
They are for charitable purposes but they have In alarms and scandals, the scandal involved
to obtain a permit from Department of Social refers to disturbances of the public tranquility
Welfare and Development. This includes and not to acts offensive to decency.
concerts for causes, Christmas caroling, and
the like.  Decency: means properly observing the
requirements of modesty, good taste etc

OFFENSES AGAINST DECENCY AND  Customs: refers to established usage,

GOOD CUSTOMS social conventions carried on by tradition
and enforced by social disapproval in case
Article 200 of violation
GRAVE SCANDAL
 If the acts complained of are punishable
 ELEMENTS: under another provision of the RPC, Art 200
a. Offender performs an act is not applicable

b. Act is highly scandalous as Any act which is notoriously offensive to

offending against decency or decency may bring about criminal liability for
good customs the crime of grave scandal provided such act
does not constitute some other crime under the
c. Highly scandalous conduct does Revised Penal Code. Grave scandal is a
not expressly fall within any other crime of last resort.
article of the RPC
 The essence of grave scandal is publicity
d. Committed in a public place or and that the acts committed are not only
within the public knowledge or contrary to morals and good customs but
view. (The public view is not
 CRIMINAL LAW II ACJUCO 90

must likewise be of such character as to without shutting the blinds. She does
cause public scandal to those witnessing it. this every night at about eight in the
evening. So that at this hour of the night,
Distinction should be made as to the place you can expect people outside gathered
where the offensive act was in front of her window looking at her
committed, whether in the public place silhouette. She was charged of grave
or in a private place: scandal. Her defense was that she was
doing it in her own house.
(1) In public place, the criminal liability
arises irrespective of whether the It is no defense that she is doing it in her
immoral act is open to the public view. private home. It is still open to the
In short public view is not required. public view.

(2) When act offensive to decency is done (4) In a particular building in Makati which
in a private place, public view or public stands right next to the house of a
knowledge is required. young lady who goes sunbathing in her
poolside. Every morning several men in
Public view does not require numerous the upper floors would stick their heads
persons. Even if there was only one person out to get a full view of said lady while in
who witnessed the offensive act for as long as her two-piece swimsuit. The lady was
the third person was not an intruder, grave then charged with grave scandal. Her
scandal is committed provided the act does not defense was that it is her own private
fall under any other crime in the Revised Penal pool and it is those men looking down at
Code. her who are malicious.

Illustrations: This is an act which even though done

in a private place is nonetheless open to
(1) A man and a woman enters a movie public view.
house which is a public place and then
goes to the darkest part of the balcony
and while there the man started Article 201
performing acts of lasciviousness on the IMMORAL DOCTRINES, OBSCENE
woman. PUBLICATIONS AND EXHIBITIONS:

If it is against the will of the woman, the  Persons liable:

crime would be acts of lasciviousness. a. Those who publicly expound or
But if there is mutuality, this constitutes proclaim doctrines that are
grave scandal. Public view is not contrary to public morals
necessary so long as it is performed in a
public place. b. Authors of obscene literature,
published with their knowledge in
(2) A man and a woman went to Luneta and any form
slept there. They covered themselves
their blanket and made the grass their c. Editors publishing such obscene
conjugal bed. literature

This is grave scandal. d. Owners or operators of

establishments selling obscene
(3) In a certain apartment, a lady tenant had literature
the habit of undressing in her room
 CRIMINAL LAW II ACJUCO 91

e. Those who exhibit indecent or b. those w/c serve no other purpose but to
immoral plays, scenes, acts or satisfy the market for violence, lust or
shows ion theaters, fairs, cinemas pornography
or any other place
c. those w/c offend against any race or
f. Those who sell, distribute, or religion
exhibit prints, engraving,
sculptures or literature which are d. those w/c tend to abet the traffic in and
offensive to morals the use of prohibited drugs

 Morals: implies conformity to generally e. those that are contrary to law, public
accepted standards of goodness or order, morals, good customs,
rightness in conduct or character established policies, lawful orders,
decrees and edicts
 Test of obscenity: whether the matter has
a tendency to deprave or corrupt the minds  Mere nudity in paintings and pictures is not
of those who are open to immoral obscene
influences. A matter can also be considered
obscene if it shocks the ordinary and  Pictures w/ a slight degree of obscenity
common sense of men as indecency. having no artistic value and intended for
commercial purposes fall within this article
The test is objective. It is more on the effect
upon the viewer and not alone on the conduct  Publicity is an essential element
of the performer.
Sexual indulgence is not in itself immoral if
If the material has the tendency to deprave and done within the bounds of privacy and
corrupt the mind of the viewer then the same is performed normally. The moment the parties
obscene and where such obscenity is made carry their private rights and privileges to public
publicly, criminal liability arises. view, they expose themselves to public
scrutiny.
The law is not concerned with the moral of one
person. As long as the pornographic matter or
exhibition is made privately, there is no crime Article 202
committed under the Revised Penal Code VAGRANTS AND PROSTITUTES:
because what is protected is the morality of the
public in general.  Who are considered vagrants:

In committing this crime, there must be a. Those who have no apparent

publicity. It means the act or acts done must means of subsistence and who
come to the knowledge of third persons. have the physical ability to work
yet neglect to apply themselves to
 However, Art 201 enumerates what are some useful calling
considered as obscene literature or
immoral or indecent plays, scenes or b. Persons found loitering around
acts: public and semi-public places
a. those w/c glorify criminals or condone without visible means of support
crimes
 CRIMINAL LAW II ACJUCO 92

c. Persons tramping or wandering

around the country or the streets
with no visible means of support

d. Idle or dissolute persons lodging

in houses of ill-fame

e. Ruffians or pimps and those who

habitually associate with
prostitutes (may include even the
rich)
TITLE SEVEN
f. Persons found loitering in CRIMES COMMITTED BY PUBLIC
inhabited or uninhabited places OFFICERS
belonging to others, without any
lawful or justifiable reason Crimes committed by public officers
provided the act does not fall
within any other article of the RPC 1. Knowingly rendering unjust judgment
(Art. 204);
If fenced and with Trespass to dwelling 2. Judgment rendered through negligence
prohibition of entry (Art. 205);

If fenced and Attempted theft 3. Unjust interlocutory order (Art. 206);

entered to hunt/fish
4. Malicious delay in the administration of
If not fenced and Vagrancy justice (Art. 207);
with no prohibition
of entry 5. Prosecution of offenses; negligence and
tolerance (Art. 208);
 Who are considered prostitutes - refer to
women who habitually indulge in sexual 6. Betrayal of trust by an attorney or
intercourse or lascivious conduct for money solicitor – Revelation of secrets (Art.
or profit (if a man indulges in the same 209);
conduct: vagrancy)
7. Direct bribery (Art. 210);
In law the mere indulging in lascivious conduct
habitually because of money or gain would 8. Indirect bribery (Art. 211);
amount to prostitution, even if there is no
sexual intercourse. Virginity is not a defense. 9. Qualified bribery (Art. 211-A);
Habituality is the controlling factor; it has to be
more than one time. 10. Corruption of public officials (Art. 212);

There cannot be prostitution by conspiracy. 11. Frauds against the public treasury and
One who conspires with a woman in the similar offenses (Art. 213);
prostitution business like pimps, taxi drivers or
solicitors of clients are guilty of the crime under 12. Other frauds (Art. 214);
Article 341 for white slavery.
13. Prohibited transactions (Art. 215);
 CRIMINAL LAW II ACJUCO 93

31. Refusal to discharge elective office (Art.

14. Possession of prohibited interest by a 234);
public officer (Art. 216);
32. Maltreatment of prisoners (Art. 235);
15. Malversation of public funds or property
– Presumption of malversation (Art. 217) 33. Anticipation of duties of a public office
(Art. 236);
16. Failure of accountable officer to render
accounts (Art. 218); 34. Prolonging performance of duties and
powers (Art. 237);
17. Failure of a responsible public officer to
render accounts before leaving the 35. Abandonment of office or position (Art.
country (Art. 219); 238);

18. Illegal use of public funds or property 36. Usurpation of legislative powers (Art.
(Art. 220); 239);

19. Failure to make delivery of public funds 37. Usurpation of executive functions (Art.
or property (Art. 221); 240);

20. Conniving with or consenting to evasion 38. Usurpation of judicial functions (Art.
(Art. 223); 241);

21. Evasion through negligence (Art. 224); 39. Disobeying request for disqualification
(Art. 242);
22. Escape of prisoner under the custody of
a person not a public officer (Art. 225); 40. Orders or requests by executive officers
to any judicial authority (Art. 243);
23. Removal, concealment or destruction of
documents (Art. 226); 41. Unlawful appointments (Art. 244); and

24. Officer breaking seal (Art. 227); 42. Abuses against chastity (Art. 245).

25. Opening of closed documents (Art. 228);

The designation of the title is misleading.
26. Revelation of secrets by an officer (Art. Crimes under this title can be committed by
229); public officers or a non-public officer, when the
latter become a conspirator with a public
27. Public officer revealing secrets of private officer, or an accomplice, or accessory to the
individual (Art. 230); crime. The public officer has to be the
principal.
28. Open disobedience (Art. 231);
In some cases, it can even be committed by a
29. Disobedience to order of superior officer private citizen alone such as in Article 275
when said order was suspended by (infidelity in the custody of a prisoner where the
inferior officer (Art. 232); offender is not a public officer) or in Article 222
(malversation).
30. Refusal of assistance (Art. 233);
 CRIMINAL LAW II ACJUCO 94

Article 203 Breach of oath of office partakes of three

 WHO ARE PUBLIC OFFICERS: forms:
a. Takes part in the performance of
public functions in the d. Misfeasance: means improper
Government, or performance of an act which might
be properly be performed
b. Performs public duties as an
employee, agent or subordinate e. Malfeasance: means performance
official in the gov’t or any of its of an act which ought not to be done
branches
f. Nonfeasance: means omission of
an act which ought to be done
 Notes:
a. Public officer must derive his
authority from: Malfeasanc Doing of an act which a public
1. direct provision of law e officer should not have done
2. popular election
3.appointment by competent Misfeasanc Improper doing of an act which
authority e a person might lawfully do

In defining the term “public officers”, the law Nonfeasanc Failure of an agent to perform
makes the reference to the manner by which e his undertaking for the principal
he is appointed to public office. He thus
becomes a public officer because of his
appointment by competent authority or Article 204:
because he is elected to public office. KNOWINGLY RENDERING AN UNJUST
JUDGMENT
b. Public officers: embraces every
public servant from the lowest to the  ELEMENTS:
highest rank a. Offender is a judge

Under Republic Act No. 3019 (The Anti-Graft b. Renders a judgment in the case
and Corrupt Practices Act), the term public submitted to him for judgment
officer is broader and more comprehensive
because it includes all persons whether an c. Judgment is unjust
official or an employee, temporary or not,
classified or not, contractual or otherwise. Any d. Knowledge that the decision is
person who receives compensation for unjust
services rendered is a public officer.

c. A government laborer is not a public  Notes:

officer. However, temporary a. Judgment: is a final consideration
performance by a laborer of public and determination by a court of
functions makes him a public officer competent jurisdiction of the issues
submitted to it in an action or
Crimes committed by public officers are proceeding
nothing but corruption in public service.
The law requires that the judgment must be
written in the official language, personally and
 CRIMINAL LAW II ACJUCO 95

directly prepared by the judge, and signed by

him. It must contain a clear and distinct  Manifestly unjust judgment: one that is
statement of facts proved or admitted by the so contrary to law that even a person
defendant and upon which the judgment is having meager knowledge of the law
based. cannot doubt the injustice

b. Unjust judgment: one which is The unjust judgment is merely the result of
contrary to law, or not supported by inexcusable negligence or ignorance of the
the evidence, or both law. The ignorance may refer to substantive or
procedural law. There must be an apparent and
c. An unjust judgment may result notorious manifestation of lack of logic and
from: false interpretation of the law. (Cortes vs.
1. error (with bad faith) Catral, 279 SCRA 1)
2. ill-will or revenge
3. bribery
Article 206
d. There must be evidence that the UNJUST INTERLOCUTORY ORDER
decision rendered is unjust. It is not
presumed  ELEMENTS:
a. That the offender is a judge.
To be liable for the above crime, not only must
the judgment be proved to be unjust .it must b. That he performs any of the
likewise be established to have been knowingly following acts:
rendered. There must be a conscious and 1. knowingly renders unjust
deliberate intent to do an injustice. This usually interlocutory order or decree,
occurs when the judge entertains hatred, envy, or
revenge, or greed against one of the parties.
2. renders a manifestly unjust
e. Abuse of discretion or mere error of interlocutory order or decree
judgment cannot likewise serve as through inexcusable
basis for rendering an unjust negligence or ignorance.
judgment in the absence of proof or
even an allegation of bad faith  Interlocutory order: one issued by the
(motive or improper consideration). court deciding a collateral or incidental
matter. It is not a final determination of the
issues of the action or proceeding
Article 205
JUDGMENT RENDERED THROUGH The crime of knowingly rendering an unjust
NEGLIGENCE judgment, or knowingly issuing an unjust
interlocutory order, may be committed only by
 ELEMENTS: a judge of a trial court and never of an
a. Offender is a judge appellate court. The reason for this is that in
appellate court, not only one magistrate
b. Renders a judgment in a case renders or issues the interlocutory order. An
submitted to him for decision appellate court functions as a division and the
resolutions thereof are handed down only after
c. Judgment is manifestly unjust deliberations among the members of a division
so that it cannot be said that there is malice or
d. Due to inexcusable negligence or inexcusable negligence or ignorance in the
ignorance
 CRIMINAL LAW II ACJUCO 96

rendering of a judgment or order that is 1. Maliciously refraining from instituting

supposedly unjust as held by the Supreme prosecution against violators of the law;
Court in one administrative case.
2. Maliciously tolerating the commission of
offenses.
Article 207
MALICIOUS DELAY IN THE  ELEMENTS OF DERELICTION OF DUTY
ADMINISTRATION OR JUSTICE IN THE PROSECUTION OF OFFENSES:
a. That the offender is a public
 ELEMENTS: officer or officer of the law who
a. That the offender is a judge. has a duty to cause the
prosecution of, or to prosecute
b. That there is a proceeding in his offenses.
court.
b. That there is dereliction of the
c. That he delays the administration duties of his office, that is,
of justice. knowing the commission of the
crime, he does not cause (a) the
d. That the delay is malicious, that prosecution of the criminal
is, the delay is caused by the (People vs. Rosales, G.R. no.
judge with deliberate intent to 42648) or (b) knowing that a crime
inflict damage on either party in is about to be committed he
the case. tolerates its commission (if
gift/promise is a consideration for his
 Mere delay without malice is not punishable conduct: direct bribery)

Malice must be proven. Malice is present c. That the offender acts with malice
where the delay is sought to favor one party to and deliberate intent to favor the
the prejudice of the other. violator of the law.

These have been interpreted by the Supreme  PREVARICACION: negligence and

Court to refer only to judges of the trial court. tolerance in the prosecution of an offense

The Constitution provides that cases submitted A public officer engaged in the prosecution of
for decision before the Supreme Court must be offenders shall maliciously tolerate the
resolved within two years. Before the Court of commission of crimes or refrain from
Appeals, such cases must be resolved within 1 prosecuting offenders or violators of the law.
year; and before the Regional Trial Court and
Metropolitan Trial Court, such cases must be This crime can only be committed by a public
decided within a period of three months or officer whose official duty is to prosecute
ninety days. offenders, that is, state prosecutors. Hence,
those officers who are not duty bound to
perform these obligations cannot commit this
Article 208 crime in the strict sense.
PROSECUTION OF OFFENSES;
NEGLIGENCE AND TOLERANCE  There must be a duty on the part of the
public officer to prosecute or move for the
Acts Punished prosecution of the offender. Note however,
that a fiscal is under no compulsion to file
 CRIMINAL LAW II ACJUCO 97

an information based upon a complaint if he  The crime must be proved first before an
is not convinced that the evidence before officer can be convicted of dereliction of
him does not warrant filing an action in duty
court
 A public officer who harbors, conceals, or
When a policeman tolerates the commission assists in the escape of an offender, when it
of a crime or otherwise refrains from is his duty to prosecute him is liable as
apprehending the offender, such peace officer principal in the crime of dereliction of duty in
cannot be prosecuted for this crime but they the prosecution of offenses. He is not an
can be prosecuted as: accessory

(1) An accessory to the crime committed by  Article not applicable to revenue officers
the principal in accordance with Article
19, paragraph 3; or Relative to this crime under Article 208,
consider the crime of qualified bribery.
(2) He may become a fence if the crime Among the amendments made by Republic Act
committed is robbery or theft, in which No. 7659 on the Revised Penal Code is a new
case he violates the Anti-Fencing Law; provision which reads as follows:
or
Article. 211-A. Qualified
(3) He may be held liable for violating the Bribery – If any public officer is
Anti-Graft and Corrupt Practices Act. entrusted with law enforcement
and he refrains from arresting or
Illustration: prosecuting an offender who has
committed a crime punishable by
The offender was caught for white slavery. Reclusion Perpetua and/or death
The policeman allowed the offender to go free in consideration of any offer,
for some consideration. The policeman does promise, gift, or present, he shall
not violate Article 208 but he becomes an suffer the penalty for the offense
accessory to the crime of white slavery. which was not prosecuted.

But in the crime of theft or robbery, where the If it is the public officer
policeman shared in the loot and allowed the who asks or demands such gift or
offender to go free, he becomes a fence. present, he shall suffer the
Therefore, he is considered an offender under penalty of death.
the Anti-Fencing Law.

However, in distant provinces or municipalities Actually the crime is a kind of direct bribery
where there are no municipal attorneys, the where the bribe, offer, promise, gift or present
local chief of police is the prosecuting officer. If has a consideration on the part of the public
he is the one who tolerates the violations of officer, that is refraining from arresting or
laws or otherwise allows offenders to escape, prosecuting the offender in consideration for
he can be prosecuted under this article. such offer, promise, gift or present. In a way,
this new provision modifies Article 210 of the
This is also true in the case of a barangay Revised Penal Code on direct bribery.
chairman. They are supposed to prosecute
violators of laws within their jurisdiction. If they However, the crime of qualified bribery may be
do not do so, they can be prosecuted for this committed only by public officers “entrusted
crime. with enforcement” whose official duties
 CRIMINAL LAW II ACJUCO 98

authorize then to arrest or prosecute offenders. In the latter situation, three crimes are
Apparently, they are peace officers and public committed: direct bribery and dereliction of
prosecutors since the nonfeasance refers to duty on the part of the fiscal; and corruption of
“arresting or prosecuting.” But this crime a public officer by the giver.
arises only when the offender whom such
public officer refrains from arresting or
prosecuting, has committed a crime punishable Article 209
by reclusion perpetua and/or death. If the BETRAYAL OF TRUST BY AN ATTORNEY
crime were punishable by a lower penalty, then OR SOLICITOR
such nonfeasance by the public officer would (NOT NECESSARILY A PUBLIC OFFICER
amount to direct bribery, not qualified bribery. ALTHOUGH ALL LAWYERS ARE OFFICERS
OF THE COURT)
If the crime was qualified bribery, the
dereliction of the duty punished under Article  ACTS PUNISHED:
208 of the Revised Penal Code should be a. Causing damage to client
absorbed because said article punishes the (prejudice is essential) either
public officer who “maliciously refrains from 1. by any malicious breach of
instituting prosecution for the punishment of professional duty, or
violators of the law or shall tolerate the
commission of offenses”. The dereliction of 2. by inexcusable negligence or
duty referred to is necessarily included in the ignorance.
crime of qualified bribery.
b. Revealing any of the secrets of
On the other hand, if the crime was direct his client learned by him in his
bribery under Article 210 of the Revised Penal professional capacity (damage not
Code, the public officer involved should be necessary)
prosecuted also for the dereliction of duty,
which is a crime under Article 208 of the c. Undertaking the defense of the
Revised Penal Code, because the latter is not opposing party of the 1st client
absorbed by the crime of direct bribery. This is and/or having received
because in direct bribery, where the public confidential information from the
officer agreed to perform an act constituting a latter and without the latter’s
crime in connection with the performance of his consent (damage not necessary)
official duties, Article 210 expressly provides
that the liabilty thereunder shall be “in addition Note: When the attorney acts with malicious
to the penalty corresponding to the crime abuse of his employment or inexcusable
agreed upon, if the crime shall have been negligence or ignorance, there must be
committed. damage to his client.

Illustration: Under the rules on evidence, communications

made with prospective clients to a lawyer with
A fiscal, for a sum of money, refrains from a view to engaging his professional services
prosecuting a person charged before him. If are already privileged even though the client-
the penalty for the crime involved is reclusion lawyer relationship did not eventually
perpetua, the fiscal commits qualified bribery. materialize because the client cannot afford the
If the crime is punishable by a penalty lower fee being asked by the lawyer. The lawyer and
than reclusion perpetua, the crime is direct his secretary or clerk cannot be examined
bribery. thereon.
 CRIMINAL LAW II ACJUCO 99

That this communication with a prospective

client is considered privileged, implies that the Several acts which would make a lawyer
same is confidential. Therefore, if the lawyer criminally liable:
would reveal the same or otherwise accept a
case from the adverse party, he would already (1) Maliciously causing damage to his client
be violating Article 209. Mere malicious breach through a breach of his professional
without damage is not violative of Article 209; duty. The breach of professional duty
at most he will be liable administratively as a must be malicious. If it is just incidental,
lawyer, e.g., suspension or disbarment under it would not give rise to criminal liability,
the Code of Professional Responsibility. although it may be the subject of
administrative discipline;
Illustration:
(2) Through gross ignorance, causing
B, who is involved in the crime of seduction damage to the client;
wanted A, an attorney at law, to handle his
case. A received confidential information from (3) Inexcusable negligence;
B. However, B cannot pay the professional fee
of A. C, the offended party, came to A also and (4) Revelation of secrets learned in his
the same was accepted. professional capacity;

A did not commit the crime under Article 209, (5) Undertaking the defense of the opposite
although the lawyer’s act may be considered party in a case without the consent of
unethical. The client-lawyer relationship the first client whose defense has
between A and B was not yet established. already been undertaken.
Therefore, there is no trust to violate because
B has not yet actually engaged the services of Note that only numbers 1, 2 and 3 must
the lawyer A. A is not bound to B. However, if approximate malice.
A would reveal the confidential matter learned
by him from B, then Article 209 is violated A lawyer who had already undertaken the case
because it is enough that such confidential of a client cannot later on shift to the opposing
matters were communicated to him in his party. This cannot be done.
professional capacity, or it was made to him
with a view to engaging his professional Under the circumstances, it is necessary that
services. the confidential matters or information was
confided to the lawyer in the latter’s
Here, matters that are considered confidential professional capacity.
must have been said to the lawyer with the
view of engaging his services. Otherwise, the It is not the duty of the lawyer to give advice on
communication shall not be considered the commission of a future crime. It is,
privileged and no trust is violated. therefore, not privileged in character. The
lawyer is not bound by the mandate of privilege
Illustration: communication if he reports such commission
of a future crime. It is only confidential
A went to B, a lawyer/notary public, to have a information relating to crimes already
document notarized. A narrated to B the detail committed that are covered by the crime of
of the criminal case. If B will disclose what was betrayal of trust if the lawyer should undertake
narrated to him there is no betrayal of trust the case of opposing party or otherwise divulge
since B is acting as a notary public and not as confidential information of a client.
a counsel. The lawyer must have learned the
confidential matter in his professional capacity.
 CRIMINAL LAW II ACJUCO 100

Under the law on evidence on privileged The client who was suing his wife disclosed
communication, it is not only the lawyer who is that he also committed acts of unfaithfulness.
protected by the matter of privilege but also the The lawyer talked about this to a friend. He is,
office staff like the secretary. thus, liable.

The nominal liability under this article may be

constituted either from breach of professional Article 210
duties in the handling of the case or it may DIRECT BRIBERY
arise out of the confidential relation between
the lawyer and the client.  ELEMENTS:
a. That the offender be a public
Breach of professional duty officer within the scope of Art 203

Tardiness in the prosecution of the case for b. That the offender accepts an offer
which reason the case was dismissed for being or promise or receives a gift or
non-prosecuted; or tardiness on the part of the present by himself or through
defense counsel leading to declaration of another
default and adverse judgment.
c. That such offer or promise be
Professional duties – Lawyer must appear on accepted or gift/present received
time. But the client must have suffered by the public officer (mere
damage due to the breach of professional duty. agreement consummates the crime)
Otherwise, the lawyer cannot be held liable.
1. with a view to committing
If the prosecutor was tardy and the case was some crime (delivery of
dismissed as non-prosecuted, but he filed a consideration is not necessary)
motion for reconsideration which was granted, or
and the case was continued, the lawyer is not
liable, because the client did not suffer 2. in consideration of an
damage. execution of an act which does
not constitute a crime, but the
If lawyer was neglectful in filing an answer, and act must be unjust (delivery of
his client declared in default, and there was an consideration is necessary), or
adverse judgment, the client suffered
damages. The lawyer is liable. 3. to refrain from doing
something which is his official
Breach of confidential relation duty to do

Revealing information obtained or taking d. That the act which the offender
advantage thereof by accepting the agrees to perform or which he
engagement with the adverse party. There is executes be connected with the
no need to prove that the client suffered performance of his official duties
damages. The mere breach of confidential
relation is punishable. Bribery refers to the act of the receiver and the
act of the giver is corruption of public official.
In a conjugal case, if the lawyer disclosed the
confidential information to other people, he  For purposes of this article, temporary
would be criminally liable even though the performance of public functions is sufficient
client did not suffer any damage. to constitute a person a public officer.
 CRIMINAL LAW II ACJUCO 101

 A private person may commit this crime

only in the case in which custody of If the public officer did not report the
prisoners is entrusted to him same to his superior and actually
accepted it, he allowed himself to be
 Applicable also to assessors, arbitrators, corrupted. The corruptor becomes liable
appraisal and claim commissioners, experts for consummated corruption of public
or any other person performing public official. The public officer also becomes
duties equally liable for consummated bribery.

 Cannot be frustrated, only attempted or (2) If a public official demanded something

consummated. from a taxpayer who pretended to agree
and use marked money with the
Direct bribery may be committed only in the knowledge of the police, the crime of the
attempted and consummated stages because, public official is attempted bribery. The
in frustrated felony, the offender must have reason is that because the giver has no
performed all the acts of execution which intention to corrupt her and therefore, he
would produce the felony as a consequence. could not perform all the acts of
In direct bribery, it is possible only if the execution.
corruptor concurs with the offender. Once
there is concurrence, the direct bribery is Be sure that what is involved is a crime
already consummated. In short, the offender of bribery, not extortion. If it were
could not have performed all the acts of extortion, the crime is not bribery, but
execution to produce the felony without robbery. The one who yielded to the
consummating the same. demand does not commit corruption of a
public officer because it was involuntary.
Actually, you cannot have a giver unless there
is one who is willing to receive and there  Bribery exists when the gift is:
cannot be a receiver unless there is one willing a. voluntarily offered by a private person
to give. So this crime requires two to commit.
It cannot be said, therefore, that one has b. solicited by the public officer and
performed all the acts of execution which voluntarily delivered by the private
would produce the felony as a consequence person
but for reasons independent of the will, the
crime was not committed. c. solicited by the public officer but the
private person delivers it out of fear of
It is now settled, therefore, that the crime of the consequences should the public
bribery and corruption of public officials cannot officer perform his functions (here the
be committed in the frustrated stage because crime by giver is not corruption of public
this requires two to commit and that means a officials due to involuntariness)
meeting of the minds.
 Actual receipt of the gift is not only if acts
Illustrations: constitutes a crime necessary. An accepted
offer or promise of a gift is sufficient.
(1) If the public official accepted the corrupt However, if the offer is not accepted, only
consideration and turned it over to his the person offering the gift is liable for
superior as evidence of the corruption, attempted corruption of a public officer
the offense is attempted corruption only
and not frustrated. The official did not
agree to be corrupted.
 CRIMINAL LAW II ACJUCO 102

 The gift must have a value or capable of principal by inducement, the other as
pecuniary estimation. It could be in the form principal by direct participation.
of money, property or services
(2) A party litigant approached the court’s
 If the act required of the public officer stenographer and proposed the idea of
amounts to a crime and he commits it, he altering the transcript of stenographic
shall be liable for the penalty corresponding notes. The court stenographer agreed
to the crime in addition to the penalty for and he demanded P 2,000.00.
bribery
Unknown to them, there were law
In direct bribery, consider whether the official enforcers who already had a tip that the
act, which the public officer agreed to court stenographer had been doing this
do, is a crime or not. before. So they were waiting for the
chance to entrap him. They were
If it will amount to a crime, it is not necessary apprehended and they said they have
that the corruptor should deliver the not done anything yet.
consideration or the doing of the act. The
moment there is a meeting of the minds, even Under Article 210, the mere agreement
without the delivery of the consideration, even to commit the act, which amounts to a
without the public officer performing the act crime, is already bribery. That
amounting to a crime, bribery is already stenographer becomes liable already for
committed on the part of the public officer. consummated crime of bribery and the
Corruption is already committed on the part of party who agreed to give that money is
the supposed giver. The reason is that the already liable for consummated
agreement is a conspiracy involving the duty of corruption, even though not a single
a public officer. The mere agreement is a centavo is delivered yet and even
felony already. though the stenographer had not yet
made the alterations.
If the public officer commits the act which
constitutes the crime, he, as well as the If he changed the transcript, another
corruptor shall be liable also for that other crime is committed: falsification.
crime.
The same criterion will apply with respect to a
Illustrations: public officer who agrees to refrain from
performing his official duties. If the refraining
(1) If the corruptor offers a consideration to would give rise to a crime, such as refraining to
a custodian of a public record to remove prosecute an offender, the mere agreement to
certain files, the mere agreement, do so will consummate the bribery and the
without delivery of the consideration, corruption, even if no money was delivered to
brings about the crime of direct bribery him. If the refraining is not a crime, it would
and corruption of public official. only amount to bribery if the consideration be
delivered to him.
If the records were actually removed,
both the public officer and the corruptor If it is not a crime, the consideration must be
will in addition to the two felonies above, delivered by the corruptor before a public
will also be liable for the crime officer can be prosecuted for bribery. Mere
committed, which is infidelity in the agreement, is not enough to constitute the
custody of the public records for which crime because the act to be done in the first
they shall be liable as principals; one as place is legitimate or in the performance of the
official duties of the public official.
 CRIMINAL LAW II ACJUCO 103

Unless the public officer receives the Note however that what may begin as an
consideration for doing his official duty, there is indirect bribery may actually ripen into direct
no bribery. It is necessary that there must be bribery.
delivery of monetary consideration. This is so
because in the second situation, the public Illustration:
officer actually performed what he is supposed
to perform. It is just that he would not perform Without any understanding with the public
what he is required by law to perform without officer, a taxi operator gave an expensive
an added consideration from the public which suiting material to a BLT registrar. Upon
gives rise to the crime. receipt by the BLT registrar of his valuable
suiting material, he asked who the giver was.
The idea of the law is that he is being paid He found out that he is a taxi operator. As far
salary for being there. He is not supposed to as the giver is concerned, he is giving this by
demand additional compensation from the reason of the office or position of the public
public before performing his public service. officer involved. It is just indirect bribery
The prohibition will apply only when the money
is delivered to him, or if he performs what he is If the BLT registrar calls up his subordinates
supposed to perform in anticipation of being and said to take care of the taxis of the taxi
paid the money. operator so much so that the registration of the
taxis is facilitated ahead of the others, what
Here, the bribery will only arise when there is originally would have been indirect bribery
already the acceptance of the consideration becomes direct bribery.
because the act to be done is not a crime. So,
without the acceptance, the crime is not Bribery (210) Robbery (294)
committed. When the victim When the victim did not
has committed a commit a crime and he is
 The third type of bribery and prevaricacion crime and gives intimidated with arrest
(art 208) are similar offenses, both money/gift to avoid and/or prosecution to
consisting of omissions to do an act arrest or deprive him of his
required to be performed. In direct bribery prosecution. personal property.
however, a gift or promise is given in Victim parts with his Victim is deprived of his
consideration of the omission. This is not money or property money or property by
necessary in prevaricacion voluntarily. force or intimidation.
Robbery should be distinguished from
Distinction between direct bribery and Bribery where a law enforcer, say a policeman,
indirect bribery extorts money from a person, employing
intimidation and threatening to arrest the latter
Bribery is direct when a public officer is called if he will not come across with money may be
upon to perform or refrain from performing an guilty of Robbery (Article 294, par. 5) or Bribery
official act in exchange for the gift, present or (Article 210). If the victim actually committed a
consideration given to him. crime, and the policeman demanded money so
he will not be arrested, the crime is Bribery.
If he simply accepts a gift or present given to But if no crime has been committed and the
him by reason of his public position, the crime policeman is falsely charging him of having
is indirect bribery. Bear in mind that the gift is committed one, threatening to arrest him if he
given "by reason of his office", not "in will not come across with some consideration,
consideration" thereof. So never use the term the crime is Robbery.
“consideration.” The public officer in Indirect
bribery is not to perform any official act.
 CRIMINAL LAW II ACJUCO 104

Article 211 necessary that the officer do any act. It is

INDIRECT BRIBERY sufficient that he accepts the gift offered by
reason of his office
 ELEMENTS:
a. That the offender is a public  Public officers receiving gifts and private
officer. persons giving gifts on any occasion,
including Christmas are liable under PD 46.
b. That he accepts gifts.
 The criminal penalty or imprisonment is
c. That the said gifts are offered to distinct from the administrative penalty of
him by reason of his office. suspension from the service

 The gift is given in anticipation of future

favor from the public officer
Indirect bribery, the public officer receives or
accepts gifts, money or anything of value by Article 211-A
reason of his office. If there is only a promise of QUALIFIED BRIBERY
a gift or money, no crime is committed because
of the language of the law which uses the  ELEMENTS:
phrase “shall accept gifts.” a. Public officer entrusted with law
enforcement
 There must be clear intention on the part of
the public officer to take the gift offered and b. Refrains from
consider the property as his own for that arresting/prosecuting offender for
moment. Mere physical receipt crime punishable by reclusion
unaccompanied by any other sign, perpetua and/or death
circumstance or act to show such (if lower penalty than stated above,
acceptance is not sufficient to convict the the crime is direct bribery)
officer
c. In consideration of any offer,
The Supreme Court has laid down the rule that promise or gift
for indirect bribery to be committed, the public Note that the penalty is DEATH if the public
officer must have performed an act of officer is the one who asks or demands such
appropriating of the gift for himself, his family present.
or employees. It is the act of appropriating that
signifies acceptance. Merely delivering the gift He need not receive the gift or present
to the public officer does not bring about the because a mere offer or promise is sufficient.
crime. Otherwise it would be very easy to
remove a public officer: just deliver a gift to
him. Article 212
CORRUPTION OF PUBLIC OFFICIALS
 There is no attempted or frustrated indirect
bribery  ELEMENTS:
a. That the offender makes offers or
 The principal distinction between direct and promises or gives gifts or present
indirect bribery is that in the former, the to a public officer.
officer agrees to perform or refrain from
doing an act in consideration of the gift or b. That the offers or promises are
promise. In the latter case, it is not made or the gifts or presents
 CRIMINAL LAW II ACJUCO 105

given to a public officer, under (2) He must willingly testify against the
circumstances that will make the public officer involved in the case to be
public officer liable for direct filed against the latter.
bribery or indirect bribery
Before the bribe-giver may be dropped from
 The offender is the giver of the gift or the the information, he has to be charged first with
offeror of the promise. The act may or may the receiver. Before trial, prosecutor may
not be accomplished move for dropping bribe-giver from information
and be granted immunity. But first, five
conditions have to be met:
Presidential Decree No. 46
(1) Information must refer to consummated
Presidential Decree No. 46 prohibits giving and bribery;
acceptance of gifts by a public officer or to a
public officer, even during anniversary, or when (2) Information is necessary for the proper
there is an occasion like Christmas, New Year, conviction of the public officer involved;
or any gift-giving anniversary. The Presidential
Decree punishes both receiver and giver. (3) That the information or testimony to be
given is not yet in the possession of the
The prohibition giving and receiving gifts given government or known to the
by reason of official position, regardless of government;
whether or not the same is for past or future
favors. (4) That the information can be
corroborated in its material points;
The giving of parties by reason of the
promotion of a public official is considered a (5) That the informant has not been
crime even though it may call for a celebration. convicted previously for any crime
The giving of a party is not limited to the public involving moral turpitude.
officer only but also to any member of his
family. These conditions are analogous to the
conditions under the State Witness Rule under
Criminal Procedure.
Presidential Decree No. 749
The immunity granted the bribe-giver is limited
The decree grants immunity from prosecution only to the illegal transaction where the
to a private person or public officer who shall informant gave voluntarily the testimony. If
voluntarily give information and testify in a there were other transactions where the
case of bribery or in a case involving a informant also participated, he is not immune
violation of the Anti-graft and Corrupt Practices from prosecution. The immunity in one
Act. transaction does not extend to other
transactions.
It provides immunity to the bribe-giver provided
he does two things: The immunity attaches only if the information
given turns out to be true and correct. If the
(1) He voluntarily discloses the transaction same is false, the public officer may even file
he had with the public officer constituting criminal and civil actions against the informant
direct or indirect bribery, or any other for perjury and the immunity under the decree
corrupt transaction; will not protect him.
 CRIMINAL LAW II ACJUCO 106

or controlled corporations and their

Republic Act No. 7080 (Plunder) subsidiaries;

Plunder is a crime defined and penalized under (4) By obtaining, receiving, or accepting
Republic Act No. 7080, which became effective directly or indirectly any shares of stock,
in 1991. This crime somehow modified certain equity or any other form of interest or
crimes in the Revised Penal Code insofar as participation including the promise of
the overt acts by which a public officer future employment in any business or
amasses, acquires, or accumulates ill-gotten undertaking;
wealth are felonies under the Revised Penal
Code like bribery (Articles 210, 211, 211-A), (5) By establishing agricultural, industrial, or
fraud against the public treasury [Article 213], commercial monopolies or other
other frauds (Article 214), malversation (Article combinations and/or implementations of
217), when the ill-gotten wealth amounts to a decrees and orders intended to benefit
total value of P50,000,000.00. The amount particular persons or special interests;
was reduced from P75,000,000.00 by Republic or
Act No. 7659 and the penalty was changed
from life imprisonment to reclusion perpetua to (6) By taking undue advantage of official
death. position, authority, relationship,
connection or influence to unjustly
Short of the amount, plunder does not arise. enrich himself or themselves at the
Any amount less than P50,000,000.00 is a expense and to the damage and
violation of the Revised Penal Code or the Anti- prejudice of the Filipino people, and the
Graft and Corrupt Practices Act. Republic of the Philippines.

Under the law on plunder, the prescriptive

period is 20 years commencing from the time While the crime appears to be malum
of the last overt act. prohibitum, Republic Act No. 7080 provides
that “in the imposition of penalties, the degree
Plunder is committed through a combination or of participation and the attendance of
series of overt acts: mitigating and aggravating circumstances shall
be considered by the court”.
(1) Through misappropriation, conversion,
misuse, or malversation of public funds
or raids on the public treasury; ANTI-GRAFT AND CORRUPT PRACTICES
ACT
(2) By receiving, directly or indirectly, any RA 3019
commission, gift, share, percentage,
kickbacks or any other form of pecuniary  Persons Liable:
benefit from any person and/or entity in
connection with any government a. Any public officer who shall perform any of
contract or project by reason of the the following acts:
office or position of the public officer;
1. Persuading, inducing or influencing
(3) By illegal or fraudulent conveyance or another public officer to perform an act
disposition of asset belonging to the constituting a violation of rules and
national government or any of its regulations duly promulgated by
subdivisions, agencies or competent authority or an offense in
instrumentalities or government-owned connection with the official duties of the
latter, or allowing himself to be
 CRIMINAL LAW II ACJUCO 107

persuaded, induced, or influenced to of favoring his own interest of giving

commit such violation or offense. undue advantage in favor of or
discriminating against any other
2. Directly or indirectly requesting or interested party.
receiving any gift, present, share,
percentage, or benefit for himself or for 7. Entering, on behalf of the Government,
any other person in connection with any into any contract or transaction
contract or transaction between the manifestly and grossly disadvantageous
government and any other party wherein to the same, whether or not the public
the public officer in his official capacity officer profited or will profit thereby.
has to intervene under the law.
8. Directly or indirectly having financial or
3. Directly, or indirectly requesting or pecuniary interest in any business,
receiving any gift, present, or other contract or transaction in connection
pecuniary or material benefit, for himself with which he intervenes or take part in
or for another, from any person for his official capacity, or in which he is
whom the public officer, in any manner prohibited by the constitution or by any
of capacity, has secured or obtained, or law from having any interest.
will secure or obtain, any Government
permit or license, in consideration for 9. Directly or indirectly becoming
the held given or to be given. interested, for personal gain, or having a
material interest in any transaction or
4. Accepting or having any member of his act requiring the approval of a board,
family accept employment in a private panel, or group of which he is a
enterprise which has pending official member, and which exercises discretion
business with him during the pendency in such approval, even if he votes
thereof or within one year after its against the same or does not participate
termination. in the action of the board, committee,
panel or group.
5. Causing any undue injury to any party,
including the Government, or giving any 10. Knowingly approving or granting any
private party any unwarranted benefits, license, permit, privilege, or benefit in
advantage, or preference in the favor of any person not qualified for or
discharge of his official, administrative or not legally entitled to such license,
judicial function through manifest permit, privilege, or advantage, or of a
partiality, evident bad faith or gross mere representative or dummy of one
inexcusable negligence. This provision who is not so qualified or entitled.
shall apply to officers and employees of
offices or government corporations 11. Divulging valuable information of a
charged with the grant of licenses or confidential character, acquired by his
permits or other concessions. office or by him on account of his official
position to unauthorized persons, or
6. Neglecting or refusing, after due releasing such information in advance of
demand or request, without sufficient its authorized release date.
justification, to act within a reasonable
time on any matter pending before him b. Any person having family or close personal
for the purpose of obtaining directly or relation with any public official who shall
indirectly, from any person interested in capitalize or exploit or take advantage of
the matter some pecuniary or material such family or close personal relation by
benefit or advantage, or for the purpose directly or indirectly requesting or receiving
 CRIMINAL LAW II ACJUCO 108

any present, gift, or material, or pecuniary favored or benefited by any law or

advantage from any person having some resolution authored by him
business, transaction, application, request, previously approved or adopted by
or contact with the government in which Congress during his term.
such public official has to intervene (Sec. 4)
f. Any public officer who shall fail to file
c. Any person who shall knowingly induce or a true, detailed and sworn statement
cause any public official to commit any of of assets and liabilities within 30
the offenses under (A). (Sec. 4) days after assuming office and
thereafter on or before the 15th day of
d. Spouse or any relative, by consanguinity or April following the close of every
affinity, within the 3rd civil degree, of the calendar year, as well as upon the
president of the Philippines, the vice- expiration of his term of office, or
president, the president of the Senate, or upon his resignation or separation
speaker of the house of Representatives, from office (Sec. 7).
who shall intervene, directly or indirectly, in
any business transaction, contract or III. Prima Facie Evidence of and
application with the gov’t (Sec. 5). Dismissal due to unexplained Wealth
(Sec. 8)
This prohibition shall not apply to:
1. Any person who, prior to the  If a public official has been found to have
assumption of office of any of the acquired during his incumbency, whether in
above officials to whom he is related, his name or in the name of other persons,
has been already dealing with the an amount of property and/or money
gov’t along the same line of manifestly out of proportion to his salary
business; and to his other lawful income.

2. Any transaction, contract or  Properties in the name of the spouse and

application already existing or dependents of such public official may be
pending at the time of such taken into consideration, when their
assumption of public office; acquisition through legitimate means
cannot be satisfactorily shown.
3. Any application filed by him, the
approval of which is not discretionary  Bank deposits in the name of or manifestly
on the part of the official(s) excessive expenditures incurred by the
concerned but depends upon public official, his spouse or any of their
compliance with requisites provided dependents including but not limited to
by law, or rules or regulations issued activities in any club or association or any
pursuant to law; ostentatious display of wealth including
frequent travel abroad of a non-official
4. Any act lawfully performed an official character by any public official when such
capacity or in the exercise of a activities entail expenses evidently out of
profession. proportion to legitimate income.

e. Any member of congress, during the III. Competent court: All prosecutions under
term for which he has been elected, this Act shall be within the original jurisdiction
who shall acquire or receive any of the
personal pecuniary interest in any Sandiganbayan (Sec. 10).
specific business enterprise which
shall be directly and particularly
 CRIMINAL LAW II ACJUCO 109

In case none of the principal accused are 2, Rule 117 of the Rules of Court (People vs.
occupying positions corresponding to salary Albano, 163 SCRA 511).
grade 27 or higher; PNP officers occupying the
rank of superintendent or higher of their Once the information is found to be sufficient in
equivalent, exclusive jurisdiction over the case form and substance, the court must issue the
shall be vested in the proper Regional Trial suspension order as a matter of course and
Court, Metropolitan Trial Court and Municipal there are no ifs and buts about it (Bayot vs.
Circuit Trial Court as the case may be. The Sandiganbayan, et al., 128 SCRA 383).
decision of the court in these cases shall be
appealable to the Sandiganbayan which Preventive suspension is resorted to in order to
exercises exclusive appellate jurisdiction over prevent the accused from using his office to
them. intimidate witnesses or frustrate his
prosecution or continue committing
IV. Prescription of offenses: all offenses malfeasance in office because the presumption
punishable under this Act shall prescribe in 15 is that unless the accused is suspended, he
years (Sec. 11). may frustrate his prosecution to commit further
acts of malfeasance or both (Bayot vs.
V. Exceptions: Unsolicited gifts or presents of Sandiganbayan, et al., supra).
small or insignificant value offered or given as
a mere ordinary token of gratitude of friendship “When the administrative case against the
according to local customs or usage, shall be officer or employee under preventive
excepted from the provisions of this act (Sec. suspension is not finally disposed of by the
14). disciplining authority within the period of ninety
(90) days after the date of suspension of the
Once the case is filed with the Sandiganbayan, respondent who is not a presidential appointee,
by express provision of the law, it becomes the respondent shall be automatically
incumbent upon the court to place under reinstated in the service: Provided, That when
preventive suspension the public officer who the delay in the disposition of the case is due
stands accused before it. However, before the to the fault, negligence or petition of the
order of suspension is issued, it is necessary respondent, the period of delay shall not be
that a pre-suspension hearing be held by the counted in computing the period of suspension
court wherein the accused is afforded the herein provided.”(Segovia vs.
opportunity to challenge the validity of the Sandiganbayan)
information filed against him. Such right of the
accused to challenge the validity of the ORTEGA NOTES:
information covers (a) the right to challenge the
sufficiency of the recitals of the information vis- The mere act of a public officer demanding an
à-vis the essential elements of the offense as amount from a taxpayer to whom he is to
defined by substantive law; (b) the right to render public service does not amount to
challenge the validity of the criminal bribery, but will amount to a violation of the
proceedings leading to the filing of the Anti-graft and Corrupt Practices Act.
information, i.e., that he has not been afforded
the right of due preliminary investigation, or Illustration:
that the acts for which he stands charged do
not constitute a violation of the provisions of A court secretary received P500 .00 from a
R.A. No. 3019, which would warrant his litigant to set a motion for an early hearing.
mandatory suspension from office under This is direct bribery even if the act to be
Section 13 of this Act; and (c) the right to raise performed is within his official duty so long as
the issue that the information can be quashed he received a consideration therefor.
under any of the grounds provided in Section
 CRIMINAL LAW II ACJUCO 110

If the secretary persuaded the judge to make a employment in that enterprise, good faith is not
favorable resolution, even if the judge did not a defense because it is a malum prohibitum. It
do so, this constitutes a violation of Anti-Graft is enough that that the act was performed.
and Corrupt Practices Act, Sub-Section A.
Where the public officer is a member of the
Under the Anti-Graft and Corrupt Practices Act, board, panel or group who is to act on an
particularly Section 3, there are several acts application of a contract and the act involved
defined as corrupt practices. Some of them one of discretion, any public officer who is a
are mere repetitions of the act already member of that board, panel or group, even
penalized under the Revised Penal Code, like though he voted against the approval of the
prohibited transactions under Article 215 and application, as long as he has an interest in
216. In such a case, the act or omission that business enterprise whose application is
remains to be mala in se. pending before that board, panel or group, the
public officer concerned shall be liable for
But there are acts penalized under the Anti- violation of the Anti-Graft and Corrupt Practices
Graft and Corrupt Practices Act which are not Act. His only course of action to avoid
penalized under the Revised Penal Code. prosecution under the Anti-graft and Corrupt
Those acts may be considered as mala Practices Act is to sell his interest in the
prohibita. Therefore, good faith is not a enterprise which has filed an application before
defense. that board, panel or group where he is a
member. Or otherwise, he should resign from
Illustration: his public position.
“ CATCH ALL PROVISION”
Section 3 (e) of the Anti-Graft and Corrupt Illustration:
Practices Act – causing undue injury to the
government or a private party by giving Sen. Dominador Aytono had an interest in the
unwarranted benefit to the party whom does Iligan Steel Mills, which at that time was being
not deserve the same. subject of an investigation by the Senate
Committee of which he was a chairman. He
In this case, good faith is not a defense was threatened with prosecution under
because it is in the nature of a malum Republic Act No. 3019 so he was compelled to
prohibitum. Criminal intent on the part of the sell all his interest in that steel mill; there is no
offender is not required. It is enough that he defense. Because the law says so, even if he
performed the prohibited act voluntarily. Even voted against it, he commits a violation thereof.
though the prohibited act may have benefited
the government. The crime is still committed These cases are filed with the Ombudsman
because the law is not after the effect of the act and not with the regular prosecutor’s office.
as long as the act is prohibited. Jurisdiction is exclusively with the
Sandiganbayan. The accused public officer
Section 3 (g) of the Anti-Graft and Corrupt must be suspended when the case is already
Practices Act – where a public officer entered filed with the Sandiganbayan.
into a contract for the government which is
manifestly disadvantageous to the government Under the Anti-Graft and Corrupt Practices Act,
even if he did not profit from the transaction, a the public officer who is accused should not be
violation of the Anti-Graft and Corrupt Practices automatically suspended upon the filing of the
Act is committed. information in court. It is the court which will
order the suspension of the public officer and
If a public officer, with his office and a private not the superior of that public officer. As long as
enterprise had a transaction and he allows a the court has not ordered the suspension of the
relative or member of his family to accept public officer involved, the superior of that
 CRIMINAL LAW II ACJUCO 111

public officer is not authorized to order the Where the respondent is separated from
suspension simply because of the violation of service and the period has not yet prescribed,
the Anti-Graft and Corrupt Practices Act. The the information shall be filed in any
court will not order the suspension of the public prosecution’s office in the city where the
officer without first passing upon the validity of respondent resides. The prosecution shall file
the information filed in court. Without a hearing, the case in the Regional Trial Court unless the
the suspension would be null and void for violation carries a penalty higher than prision
being violative of due process. correccional, in which case the Sandiganbayan
has jurisdiction.
Illustration:
The fact that the government benefited out of
A public officer was assigned to direct traffic in the prohibited act is no defense at all, the
a very busy corner. While there, he caught a violation being mala prohibita.
thief in the act of lifting the wallet of a
pedestrian. As he could not leave his post, he Section 3 (f) of the Anti-Graft and Corrupt
summoned a civilian to deliver the thief to the Practices Act – where the public officer
precinct. The civilian agreed so he left with the neglects or refuses to act on a matter pending
thief. When they were beyond the view of the before him for the purpose of obtaining any
policeman, the civilian allowed the thief to go pecuniary or material benefit or advantage in
home. What would be the liability of the public favor of or discriminating against another
officer? interested party.

The liability of the traffic policeman would be The law itself additionally requires that the
merely administrative. The civilian has no accused’s dereliction, besides being without
liability at all. justification, must be for the purpose of
Firstly, the offender is not yet a prisoner so obtaining from any person interested in the
there is no accountability yet. The term matter some pecuniary or material benefit or
“prisoner” refers to one who is already booked for the purpose of favoring any interested party,
and incarcerated no matter how short the time or discriminating against another interested
may be. party. This element is indispensable.

The policeman could not be said as having In other words, the neglect or refusal to act
assisted the escape of the offender because as must motivated by gain or benefit, or purposely
the problem says, he is assigned to direct to favor the other interested party as held in
traffic in a busy corner street. So he cannot be Coronado v. SB, decided on August 18, 1993.
considered as falling under the third 3rd
paragraph of Article 19 that would constitute Republic Act No. 1379 (Forfeiture of Ill-
his as an accessory. gotten Wealth)

The same is true with the civilian because the Correlate with RA 1379 -- properly under
crime committed by the offender, which is Remedial Law. This provides the procedure for
snatching or a kind of robbery or theft as the forfeiture of the ill-gotten wealth in violation of
case may be, is not one of those crimes the Anti-Graft and Corrupt Practices Act. The
mentioned under the third paragraph of Article proceedings are civil and not criminal in nature.
19 of the Revised Penal Code.
Any taxpayer having knowledge that a public
Where the public officer is still incumbent, the officer has amassed wealth out of proportion to
prosecution shall be with the Ombudsman. this legitimate income may file a complaint with
the prosecutor’s office of the place where the
public officer resides or holds office. The
 CRIMINAL LAW II ACJUCO 112

prosecutor conducts a preliminary investigation  Notes:

just like in a criminal case and he will forward a. The public officer must act in his
his findings to the office of the Solicitor official capacity
General. The Solicitor General will determine
whether there is reasonable ground to believe b. The felony is consummated by
that the respondent has accumulated an merely entering into an agreement
unexplained wealth. with any interested party or
speculator or by merely making use
If the Solicitor General finds probable cause, of any scheme to defraud the
he would file a petition requesting the court to Government
issue a writ commanding the respondent to
show cause why the ill-gotten wealth described The essence of this crime is making the
in the petition should not be forfeited in favor of government pay for something not received or
the government. This is covered by the Rules making it pay more than what is due. It is also
on Civil Procedure. The respondent is given 15 committed by refunding more than the amount
days to answer the petition. Thereafter trial which should properly be refunded. This
would proceed. Judgment is rendered and occurs usually in cases where a public officer
appeal is just like in a civil case. Remember whose official duty is to procure supplies for the
that this is not a criminal proceeding. The basic government or enter into contract for
difference is that the preliminary investigation is government transactions, connives with the
conducted by the prosecutor. said supplier with the intention to defraud the
government. Also when certain supplies for
the government are purchased for the high
FRAUDS AND ILLEGAL EXACTIONS AND price but its quantity or quality is low.
TRANSACTIONS
Not all frauds will constitute this crime. There
Article 213 must be no fixed allocation or amount on the
FRAUDS AGAINST PUBLIC TREASURY matter acted upon by the public officer.

 ELEMENTS: (par. 1) The allocation or outlay was made the basis of

a. That the offender be a public fraudulent quotations made by the public
officer. officer involved.

b. That he should have taken For example, there was a need to put some
advantage of his office, that is, he additional lighting along a street and no one
intervened in the transaction in knows how much it will cost. An officer was
his official capacity. asked to canvass the cost but he connived with
the seller of light bulbs, pricing each light bulb
c. That he entered into an agreement at P550.00 instead of the actual price of
with any interested party or P500.00. This is a case of fraud against public
speculator or made use of any treasury.
other scheme with regard to (a)
furnishing supplies (b) the making If there is a fixed outlay of P20,000.00 for the
of contracts, or (c) the adjustment lighting apparatus needed and the public officer
or settlement of account relating connived with the seller so that although
to a public property or funds. allocation was made a lesser number was
asked to be delivered, or of an inferior quality,
d. That the accused had intent to or secondhand. In this case there is no fraud
defraud the government. against the public treasury because there is a
fixed allocation. The fraud is in the
 CRIMINAL LAW II ACJUCO 113

implementation of procurement. That would improper making of the collection which would
constitute the crime of “other fraud” in Article prejudice the accounting of collected amounts
214, which is in the nature of swindling or by the government.
estafa.
a. Mere demand of a larger or different
Be sure to determine whether fraud is against amount is sufficient to consummate
public treasury or one under Article 214. the crime. The essence is the
improper collection (damage to gov’t
is not required)
ILLEGAL EXACTIONS (par 2)
On the first form of illegal exaction
 ELEMENTS:
a. The offender is a public officer In this form, mere demand will consummate
entrusted with the collection of the crime, even if the taxpayer shall refuse to
taxes, licenses, fees and other come across with the amount being
imposts. demanded. That will not affect the
consummation of the crime.
b. He is guilty of any of the following
acts or omissions: In the demand, it is not necessary that the
amount being demanded is bigger than what is
1. demanding, directly or payable to the government. The amount being
indirectly the payment of sums demanded maybe less than the amount due
different from or larger than the government.
those authorized by law, or
b. If sums are received without
2. failing voluntarily to issue a demanding the same, a felony under
receipt, as provided by law, for this article is not committed.
any sum of money collected by However, if the sum is given as a
him officially, or sort of gift or gratification, the crime
is indirect bribery
3. Collecting or receiving, directly
or indirectly, by way of c. When there is deceit in demanding
payment or otherwise, things larger fees, the crime committed is
or objects of a nature different estafa
from that provided by law.
d. May be complexed with malversation
 Notes:
Note that this is often committed with
This can only be committed principally by a malversation or estafa because when a public
public officer whose official duty is to collect officer shall demand an amount different from
taxes, license fees, import duties and other what the law provides, it can be expected that
dues payable to the government. such public officer will not turn over his
collection to the government.
Not any public officer can commit this crime.
Otherwise, it is estafa. Fixers cannot commit Illustrations:
this crime unless he conspires with the public
officer authorized to make the collection. (1) A taxpayer goes to the local municipal
treasurer to pay real estate taxes on his
The essence of the crime is not land. Actually, what is due the
misappropriation of any of the amounts but the government is P400.00 only but the
 CRIMINAL LAW II ACJUCO 114

municipal treasurer demanded P500.00. P500.00 upon payment of the taxpayer

By that demand alone, the crime of of said amount demanded by the public
illegal exaction is already committed officer involved. But he altered the
even though the taxpayer does not pay duplicate to reflect only P400.00 and he
the P500.00. extracted the difference of P100.00.

(2) Suppose the taxpayer came across with In this case, the entire P500.00 was
P500.00. But the municipal treasurer, covered by an official receipt. That act
thinking that he would abstract the of covering the whole amount received
P100.00, issued a receipt for only from the taxpayer in an official receipt
P400.00. The taxpayer would naturally will have the characteristics of becoming
ask the municipal treasurer why the a part of the public funds. The crimes
receipt was only for P400.00. The committed, therefore, are the following:
treasurer answered that the P100.00 is
supposed to be for documentary (a) Illegal exaction – for collecting
stamps. The taxpayer left. more than he is authorized to
collect. The mere act of
He has a receipt for P400.00. The demanding is enough to
municipal treasurer turned over to the constitute this crime.
government coffers P400.00 because
that is due the government and (b) Falsification – because there was
pocketed the P100.00. an alteration of official document
which is the duplicate of the
The mere fact that there was a demand official receipt to show an amount
for an amount different from what is due less than the actual amount
the government, the public officer collected.
already committed the crime of illegal
exaction. (c) Malversation – because of his act
of misappropriating the P100.00
On the P100.00 which the public officer excess which was covered by an
pocketed, will it be malversation or official receipt already, even
estafa? though not payable to the
government. The entire P500.00
In the example given, the public officer was covered by the receipt,
did not include in the official receipt the therefore, the whole amount
P100.00 and, therefore, it did not became public funds. So when
become part of the public funds. It he appropriated the P100 for his
remained to be private. It is the own benefit, he was not
taxpayer who has been defrauded of his extracting private funds anymore
P100.00 because he can never claim a but public funds.
refund from the government for excess
payment since the receipt issued to him Should the falsification be complexed
was only P400.00 which is due the with the malversation?
government. As far as the P100.00 is
concerned, the crime committed is As far as the crime of illegal exaction is
estafa. concerned, it will be the subject of
separate accusation because there, the
(3) A taxpayer pays his taxes. What is due mere demand regardless of whether the
the government is P400.00 and the taxpayer will pay or not, will already
public officer issues a receipt for consummate the crime of illegal
 CRIMINAL LAW II ACJUCO 115

exaction. It is the breach of trust by a the vault of the office. When he needed
public officer entrusted to make the money, he took the P100.00 and spent
collection which is penalized under such it.
article. The falsification or alteration
made on the duplicate can not be said The following crimes were committed:
as a means to commit malversation. At
most, the duplicate was altered in order (a) Illegal exaction – for demanding a
to conceal the malversation. So it different amount;
cannot be complexed with the
malversation. (b) Estafa – for deceiving the
taxpayer; and
It cannot also be said that the
falsification is a necessary means to (c) Malversation – for getting the
commit the malversation because the P100.00 from the vault.
public officer can misappropriate the
P100.00 without any falsification. All Although the excess P100.00 was not
that he has to do is to get the excess of covered by the Official Receipt, it was
P100.00 and misappropriate it. So the commingled with the other public funds
falsification is a separate accusation. in the vault; hence, it became part of
public funds and subsequent extraction
However, illegal exaction may be thereof constitutes malversation.
complexed with malversation because
illegal exaction is a necessary means to
be able to collect the P100.00 excess Note that numbers 1 and 2 are complexed as
which was malversed. illegal exaction with estafa, while in number 3,
malversation is a distinct offense.
In this crime, pay attention to whether
the offender is the one charged with the The issuance of the Official Receipt is the
collection of the tax, license or impost operative fact to convert the payment into
subject of the misappropriation. If he is public funds. The payor may demand a refund
not the one authorized by disposition to by virtue of the Official Receipt.
do the collection, the crime of illegal
exaction is not committed. In cases where the payor decides to let the
official to “keep the change”, if the latter should
If it did not give rise to the crime of pocket the excess, he shall be liable for
illegal exaction, the funds collected may malversation. The official has no right but the
not have become part of the public government, under the principle of accretion,
funds. If it had not become part of the as the owner of the bigger amount becomes
public funds, or had not become the owner of the whole.
impressed with being part of the public
funds, it cannot be the subject of On the second form of illegal exaction
malversation. It will give rise to estafa
or theft as the case may be. The act of receiving payment due the
government without issuing a receipt will give
(3) The Municipal Treasurer demanded rise to illegal exaction even though a
P500.00 when only P400.00 was due. provisional receipt has been issued. What the
He issued the receipt at P400.00 and law requires is a receipt in the form prescribed
explained to taxpayer that the P100 was by law, which means official receipt.
for documentary stamps. The Municipal
Treasurer placed the entire P500.00 in Illustration:
 CRIMINAL LAW II ACJUCO 116

Because of this discretion, their demanding or

If a government cashier or officer to whom collecting different from what is necessary is
payment is made issued a receipt in his own legal
private form, which he calls provisional, even
though he has no intention of misappropriating
the amount received by him, the mere fact that
he issued a receipt not in the form prescribed
by law, the crime of illegal exaction is
committed. There must be voluntary failure to
issue the Official Receipt.
Article 214
On the third form of illegal exaction OTHER FRAUDS

Under the rules and regulations of the  ELEMENTS:

government, payment of checks not belonging a. That the offender is a public
to the taxpayer, but that of checks of other officer.
persons, should not be accepted to settle the
obligation of that person. b. That he takes advantage of his
official position.
Illustration:
c. That he commits any of the frauds
A taxpayer pays his obligation with a check not or deceits enumerated in art. 315
his own but pertaining to another. Because of to 318. (estafa; swindling)
that, the check bounced later on.
 Note: RTC has jurisdiction over the offense
The crime committed is illegal exaction because the principal penalty is
because the payment by check is not allowed if disqualification
the check does not pertain to the taxpayer
himself, unless the check is a manager’s check
or a certified check, amended already as of Article 215
1990. (See the case of Roman Catholic.) PROHIBITED TRANSACTIONS

Under Article 213, if any of these acts  ELEMENTS:

penalized as illegal exaction is committed by a. That the offender is an appointive
those employed in the Bureau of Customs or public officer.
Bureau of Internal Revenue, the law that will
apply to them will be the Revised b. That he becomes interested,
Administrative Code or the Tariff and Customs directly or indirectly, in any
Code or National Revenue Code. transaction of exchange or
speculation.
This crime does not require damage to the
government. c. That the transaction takes place
within the territory subject to his
Officers and employees of the BIR or jurisdiction.
Customs are not covered by the article.
The NIRC or Administrative Code is d. That he becomes interested in the
the applicable law transaction during his
incumbency.
These officers are authorized to make
impositions and to enter into compromises.
 CRIMINAL LAW II ACJUCO 117

 Notes: he represents. (U. S. vs. Udarbe, 28 Phil.

a. Examples of transactions of 383)
exchange or speculation are:
buying and selling stocks,
commodities, land etc wherein one Section 14, Article VI of the Constitution
hopes to take advantage of an
expected rise or fall in price No Senator or Member of the House of
Representatives may personally appear as
b. Purchasing of stocks or shares in a counsel before any court of justice or before
company is simple investment and the Electoral Tribunals, or quasi-judicial and
not a violation of the article. other administrative bodies. Neither shall he,
However, regularly buying securities directly or indirectly, be interested financially in
for resale is speculation any contract with, or in any franchise or special
privilege granted by the Government or any
subdivision, agency or instrumentality thereof,
Article 216 including any government-owned or controlled
POSSESSION OF PROHIBITED INTERESTS corporation or its subsidiary, during his term of
BY A PUBLIC OFFICER office. He shall not intervene in any matter
before any office of the government for his
 Who are liable: pecuniary benefit or where he may be called
a. Public officer – in any contract or upon to act on account of his office.
business in which it is his official duty
to intervene.
Section 13, Article VII of the Constitution
b. Experts, arbitrators and private
accountants – in any contract or The President, Vice-President, the
transaction connected with the Members of the Cabinet and their deputies or
estate or property in the approval, assistant shall not, unless otherwise provided
distribution or adjudication of which in this Constitution, hold any other office or
they had acted. employment during their tenure. They shall
not, during said tenure, directly or indirectly,
c. Guardians and executors – with practice any other profession, participate in any
respect to property belonging to their business, or be financially interested in any
wards or the estate. contract with, or in any franchise, or special
 Notes: privilege granted by the Government or any
a. Actual fraud is not necessary. subdivision, agency or instrumentality thereof,
including government-owned or controlled
b. Act is punished because of the corporations or their subsidiaries. They shall
possibility that fraud may be strictly avoid conflict of interest in the conduct
committed or that the officer may of their office.
place his own interest above that of
the Government or party which he
represents Section 2, Article IX-A of the Constitution

The mere violation of the prohibition is already No member of a Constitutional

punished even if no actual fraud occurs Commission shall, during his tenure, hold any
because of the possibility that fraud may be office or employment. Neither shall he engage
committed or that the officer may place his own in the practice of any profession or in the active
interest above that of the government or party management or control of any business which
in any way may be affected by the functions of
 CRIMINAL LAW II ACJUCO 118

his office, nor shall he be financially interested, safekeeping public funds violates
directly or indirectly, in any contract with, or in the trust reposed)
any franchise or privilege granted by the
government, or any of its subdivisions, Concept of Malversation
agencies, or instrumentalities, including
government-owned or controlled corporations It consists in the misappropriation or
or their subsidiaries. conversion of public funds or property to one’s
personal use or knowingly, or through
abandonment or negligence allowing other to
use or appropriate the same. The offender is
made liable because of the nature of his duties
MALVERSATION OF PUBLIC FUNDS OR to take care of the funds or property entrusted
PROPERTY to him with the diligence of a good father of a
family. He is accountable by virtue of the nature
Article 217 of his office to account for funds or properties
MALVERSATION OF PUBLIC FUNDS OR that come to his possession. If he is not
PROPERTY accountable for the funds or properties and he
misappropriates the same, the crime will not be
 ELEMENTS COMMON TO ALL ACTS malversation but estafa under Article 315.
MALVERSATION OF PUBLIC FUNDS OR
PROPERTY :  Malversation is otherwise called
a. That the offender be a public embezzlement
officer (or private person if
entrusted with public funds or This crime is predicated on the relationship of
connived with public officers) the offender to the property or funds involved.
The offender must be accountable for the
b. That he had the custody or property misappropriated. If the fund or
control of funds or property (if not property, though public in character is the
accountable for the funds, theft or responsibility of another officer, malversation is
qualified theft) not committed unless there is conspiracy.

c. That those funds or property were In determining whether the offender is liable for
public funds or property (even if malversation, it is the nature of the duties of
private funds if attached, seized, the public officer that controls. While the name
deposited or commingled with public of the office is important, what is controlling is
funds) whether in performing his duties as a public
officer, he has to account or is required by the
d. That he: nature of the performance of a duty, to render
1. Appropriated the funds or an account on the money or property that
property came into his possession.

2. Took or misappropriated them It is not necessary that the offender profited

because somebody else may have
3. Consented or, through misappropriated the funds in question for as
abandonment or negligence, long as the accountable officer was remiss in
permitted any other person to his duty of safekeeping public funds or
take such public funds or property. He is liable for malversation if such
property. (it is not necessary that funds were lost or otherwise misappropriated
the offender profited thereby. His by another.
being remiss in the duty of
 CRIMINAL LAW II ACJUCO 119

 It can be committed either with malice or with the character of being part of the public
through negligence or imprudence funds it being in custodia legis. For as long as
the public officer is the one accountable for the
There is no crime of malversation fund or property that was misappropriated, he
through negligence. The crime is malversation, can be liable for the crime of malversation.
plain and simple, whether committed through Absent such relation, the crime could be theft,
dolo or culpa. There is no crime of simple or qualified.
malversation under Article 365 – on criminal
negligence – because in malversation under
Article 217, the same penalty is imposed
whether the malversation results from
negligence or was the product of deliberate
act.
Estafa Malversation
 In determining whether the offender is a It is usually committed Committed by
public officer, what is controlling is the by a private individual accountable public
nature of his office and not the designation officers
Funds or property of The object is public
The offender, to commit malversation, must be misappropriation are fund or property.
accountable for the funds or property privately owned.
misappropriated by him. If he is not the one The offender Personal appropriation
accountable but somebody else, the crime appropriates is not indispensable
committed is theft. It will be qualified theft if personally the funds because allowing
there is abuse of confidence. or property. others to commit the
misappropriation is
Accountable officer does not refer only to also malversation.
cashier, disbursing officers or property
custodian. Any public officer having custody of  When a public officer has official custody or
public funds or property for which he is the duty to collect or receive funds due the
accountable can commit the crime of government, or the obligation to account for
malversation if he would misappropriate such them, his misappropriation of the same
fund or property or allow others to do so. constitutes malversation

 The funds or property must be received in Note that the moment any money is
an official capacity. Otherwise, the crime commingled with the public fund even if not
committed is estafa due the government, it becomes impressed
with the characteristic of being part of public
When private property is attached or seized by funds. Once they are commingled, you do not
public authority and the public officer know anymore which belong to the government
accountable therefor misappropriates the and which belong to the private persons. So
same, malversation is committed also. that a public vault or safe should not be used to
hold any fund other that what is due to the
Illustration: government.

If a sheriff levied the property of the defendants  In malversation thru negligence, the
and absconded with it, he is not liable of negligence of the accountable public officer
qualified theft but of malversation even though must be positively and clearly shown to be
the property belonged to a private person. The inexcusable, approximating fraud or malice
seizure of the property or fund impressed it
 CRIMINAL LAW II ACJUCO 120

Under jurisprudence, when the public officer introduced which were not considered in the
leaves his post without locking his drawer, first audit, the denial of the request for a
there is negligence. Thus, he is liable for the second audit is fatal to the cause of the
loss. prosecution because in the meantime, the
evidence introduced does not establish a fact
 The measure of negligence to be observed beyond reasonable doubt. Had the re-audit
is the standard of care commensurate with requested by the accused been accorded due
the occasion course, the remaining balance could have
been satisfactorily accounted for. (Mahinay vs.
 When malversation is not committed The Sandiganbayan. G. R. No. 61442, May 9,
through negligence, lack of criminal intent 1989)
or good faith is a defense
 Returning the embezzled funds is not
 The failure of a public officer to have any exempting, it is only mitigating
duly forthcoming public funds or property
upon demand, by any authorized officer, Payment of the amount misappropriated
shall be prima facie evidence that he has or restitution of property misappropriated does
put such missing funds or property to not erase criminal liability but only civil liability.
personal use. However, if at the very
moment when the shortage is discovered,  There is also no malversation when the
the accountable officer is notified, and he accountable officer is obliged to go out of
immediately pays the amount from his his office and borrow the amount
pocket, the presumption does not arise corresponding to the shortage and later, the
missing amount is found in an
An accountable public officer may be convicted unaccustomed place
even if there is no direct evidence of
misappropriation and the only evidence is the  A person whose negligence made possible
shortage in his account which he has not been the commission of malversation by another
able to explain satisfactorily. (Palma Gil vs. can be held liable as a principal by
People) indispensable cooperation

If a public officer reports the loss of money It is not necessary that the accountable public
before a cash examination is conducted and officer should actually misappropriate the fund
the cause of the loss as reported has a distinct or property involved. It is enough that he has
ring of truth to it, the legal presumption of violated the trust reposed on him in connection
prima facie evidence of guilt will not apply. In with the property.
order to support conviction, the prosecution
must prove the actual misappropriation of the  Demand as well as damage to the
missing funds.(Salvacion vs. The Honorable government are not necessary elements
Sandiganbayan, G. R. No. 68233, July 11,
1986) Note that damage on the part of the
government is not considered an essential
To rebut the presumption of guilt prima facie element. It is enough that the proprietary rights
under Article 217, the accused must raise the of the government over the funds have been
issue of accuracy, correctness and regularity in disturbed through breach of trust.
the conduct of audit. If asked for a second
audit before the filing of the information against The grant of loans through the vale system is a
him and the same was denied, and during the clear case of an accountable officer consenting
trial, some disbursement vouchers were to the improper or unauthorized use of public
 CRIMINAL LAW II ACJUCO 121

funds by other persons, which is punishable by

law. To tolerate such a practice is to give a  ELEMENTS:
license to every disbursing officer to conduct a a. That the offender is a public
lending operation with the use of public funds. officer, whether in the service or
There is no law or regulation allowing separated therefrom.
accountable officers to extend loans to anyone
against the “vales” or chits given in exchange b. That he must be an accountable
by the borrowers. (Meneses vs. officer for public funds property.
Sandiganbayan)
c. That he is required by law or
A private person may also commit regulation to render accounts to
malversation under the following the commission on audit, or to a
situations: provincial auditor.

(1) Conspiracy with a public officer in d. That he fails to do so for a period

committing malversation; of two months after such
accounts should be rendered.
(2) When he has become an accomplice or The public officers who are bound to render
accessory to a public officer who accounts are the following:
commits malversation; 1. cashiers
2. storekeepers
(3) When the private person is made the 3. warehousemen and
custodian in whatever capacity of public 4. those who by the nature of their position
funds or property, whether belonging to become custodian or public funds or
national or local government, and he property.
misappropriates the same;
 Note: Demand and misappropriation are
(4) When he is constituted as the not necessary
depositary or administrator of funds or
property seized or attached by public It is sufficient that there is a law or regulation
authority even though said funds or requiring him to render an account. It is the
property belong to a private individual. failure to follow the requirement of the law that
is made punishable. It is not necessary that the
Technical malversation is not included in the offender prevent the situation of the crime
crime of malversation. In malversation, the being committed because of the failure of the
offender misappropriates public funds or accountable officer to render an account.
property for his own personal use, or allows
any other person to take such funds or
property for the latter’s own personal use. In Article 219
technical malversation, the public officer FAILURE OF A RESPONSIBLE PUBLIC
applies the public funds or property under his OFFICER TO RENDER ACCOUNTS BEFORE
administration to another public use different LEAVING THE COUNTRY
from that for which the public fund was
appropriated by law or ordinance. Recourse:  ELEMENTS:
File the proper information. a. That the offender is a public
officer.

Article 218
FAILURE OF ACCOUNTABLE OFFICER TO
RENDER ACCOUNTS
 CRIMINAL LAW II ACJUCO 122

b. That he must be an accountable The term technical malversation is used

officer for public funds or because in this crime, the fund or property
property. involved is already appropriated or earmarked
for a certain public purpose.
c. That he must have unlawfully left
(or be on the point of leaving) the The offender is entrusted with such fund or
Philippines without securing from property only to administer or apply the same
the Commission on Audit a to the public purpose for which it was
certificate showing that his appropriated by law or ordinance. Instead of
accounts have been finally applying it to the public purpose to which the
settled. fund or property was already appropriated by
law, the public officer applied it to another
Who can commit this crime? purpose.
A responsible public officer, not necessarily an
accountable one, who leaves the country  To distinguish this article with Art 217, just
without first securing clearance from the remember that in illegal use of public funds
Commission on Audit. or property, the offender does not derive
any personal gain, the funds are merely
 Note: The act of leaving the Philippines devoted to some other public use
must be unauthorized or not permitted by
law  Absence of damage is only a mitigating
circumstance
Mere leaving without securing clearance
constitutes violation of the Revised Penal Since damage is not an element of
Code. It is not necessary that they really malversation, even though the application
misappropriated public funds. made proved to be more beneficial to public
interest than the original purpose for which the
amount or property was appropriated by law,
Article 220 the public officer involved is still liable for
ILLEGAL USE OF PUBLIC FUNDS OR technical malversation.
PROPERTY (technical malversation)
If public funds were not yet appropriated by law
 ELEMENTS: or ordinance, and this was applied to a public
a. That the offender is a public purpose by the custodian thereof, the crime is
officer. plain and simple malversation, not technical
malversation. If the funds had been
b. That there is public fund or appropriated for a particular public purpose,
property under his administration. but the same was applied to private purpose,
the crime committed is simple malversation
c. That such public fund or property only.
has been appropriated by law or
ordinance (without this, it is simple Illustration:
malversation even if applied to other
public purpose). The office lacked bond papers. What the
government cashier did was to send the janitor,
d. That he applies the same to a get some money from his collection, told the
public use other than for which janitor to buy bond paper so that the office will
such fund or property has been have something to use. The amount involved
appropriated by law or ordinance. maybe immaterial but the cashier commits
malversation pure and simple.
 CRIMINAL LAW II ACJUCO 123

Article 221
This crime can also be committed by a private FAILURE TO MAKE DELIVERY OF PUBLIC
person. FUNDS OR PROPERTY

Illustration:
ELEMENTS:
A certain road is to be cemented. Bags of a. Offender has gov’t funds or
cement were already being unloaded at the property in his possession
side. But then, rain began to fall so the
supervisor of the road building went to a b. He is under obligation to either:
certain house with a garage, asked the owner if 1. make payment from such
he could possibly deposit the bags of cement funds
in his garage to prevent the same from being
wet. The owner of the house, Olive, agreed. 2. to deliver property in his
So the bags of cement were transferred to the custody or administration
garage of the private person. After the public when ordered by competent
officer had left, and the workers had left authority
because it is not possible to do the cementing,
the owner of the garage started using some of c. He maliciously fails or refuses to
the cement in paving his own garage. The do so
crime of technical malversation is also  Note: Penalty is based on value of
committed. funds/property to be delivered

Note that when a private person is constituted Article 222

as the custodian in whatever capacity, of public PERSONS WHO MAY BE HELD LIABLE
funds or property, and he misappropriates the UNDER ARTS 217 TO 221
same, the crime of malversation is also
committed. See Article 222. a. Private individual who, in any
capacity, have charge of any
Illustration: national, provincial or municipal
funds, revenue, or property
The payroll money for a government
infrastructure project on the way to the site of b. Administrator or depositary of
the project, the officers bringing the money funds or property that has been
were ambushed. They were all wounded. One attached, seized or deposited by
of them, however, was able to get away from public authority, even if owned by
the scene of the ambush until he reached a a private individual
certain house. He told the occupant of the
house to safeguard the amount because it is  Sheriffs and receivers fall under the term
the payroll money of the government laborers “administrator”
of a particular project. The occupant of the
house accepted the money for his own use.  A judicial administrator in charge of settling
The crime is not theft but malversation as long the estate of the deceased is not covered
as he knew that what was entrusted in his by the article
custody is public fund or property.
Here, the funds or property belong to private
individuals, but they are considered public
funds or property if they come to the
 CRIMINAL LAW II ACJUCO 124

possession of the public officer because of 1) a prisoner to obtain a relaxation of his

writ of attachment; or 2) if they are seized by imprisonment
virtue of a search warrant. Or 3) if they are
ordered deposited pending determination of A municipal mayor who utilized the prisoner’s
ownership in the administrative or judicial services for domestic chores in his house,
proceedings. including using him as a cook is liable for
faithlessness in the custody of prisoner (Art.
Private individuals may also be liable for 223) even though the convict may not have
malversation if they act as conspirators in the fled, in as much as the prisoner’s leaving the
commission of the crime. prison was effected through him. (People vs.
Evangelista, C.A. 38 O.G. 158).

INFIDELITY OF PUBLIC OFFICERS Article 224

EVASION THROUGH NEGLIGENCE

Article 223  ELEMENTS:

CONNIVING WITH OR CONSENTING TO a. That the offender is a public
EVASION officer.

 ELEMENTS: b. That he is charged with the

a. That the offender is a public conveyance or custody of a
officer (on duty). prisoner, either detention prisoner
or prisoner by final judgment.
b. That he is charged with the
conveyance or custody of a c. That such prisoner escapes
prisoner, either detention prisoner through his negligence.
or prisoner by final judgment.
d. Penalty based on nature of
c. That such prisoner escaped from imprisonment
his custody
 The article punishes a definite laxity which
d. That he was in connivance with amounts to deliberate non-performance of a
the prisoner in the latter’s escape duty

 Detention prisoner: refers to a person in Not every error is negligence under this article.
legal custody, arrested for and charged with To be liable, the negligence must be notorious
some crime or public offense and apparent. The laxity must be definite and
must seriously suggest a deliberate non-
 The release of a detention prisoner who performance of a duty.
could not be delivered to judicial authorities
within the time fixed by law is not infidelity The negligence which is punishable however is
in the custody of a prisoner. Neither is mere not such definite laxity at all but that which
leniency or laxity in the performance of duty amounts to deliberate non-performance of the
constitutive of infidelity jailer or the guard. So that if a policemen on
guard duty unlocked the door of the jail to let a
 There is real and actual evasion of service detention prisoner go out so he can clean the
of sentence when the custodian permits the premises, but on the latter’s third trip to a
nearby faucet, he walked behind the police
headquarters climbed over the wall and
 CRIMINAL LAW II ACJUCO 125

escape, the crime is not committed. (People ORTEGA NOTES:

vs. Solis, C.A. 43 O.G. 580).
The crime is infidelity in the custody of
 The fact that the public officer recaptured prisoners if the offender involved is the
the prisoner who had escaped from his custodian of the prisoner.
custody does not afford complete If the offender who aided or consented to the
exculpation prisoner’s escaping from confinement, whether
the prisoner is a convict or a detention
 The liability of an escaping prisoner: prisoner, is not the custodian, the crime is
a. if he is a prisoner by final judgment, delivering prisoners from jail under Article156.
he is liable for evasion of service (art
157) The crime of infidelity in the custody of
b. if he is a detention prisoner, he does prisoners can be committed only by the
not incur criminal liability (unless custodian of the prisoner.
cooperating with the offender).
If the jail guard who allowed the prisoner to
escape is already off-duty at that time and he is
Article 225 no longer the custodian of the prisoner, the
ESCAPE OF PRISONERS UNDER THE crime committed by him is delivering prisoners
CUSTODY OF A PERSON NOT A PUBLIC from jail.
OFFICER
Note that you do not apply here the principle of
 ELEMENTS: conspiracy that the act of one is the act of all.
a. That the offender is a private The party who is not the custodian who
person (note: must be on duty) conspired with the custodian in allowing the
prisoner to escape does not commit infidelity in
b. That the conveyance or custody the custody of the prisoner. He commits the
of a prisoner or person under crime of delivering prisoners from jail.
arrest is confined to him.

c. That the prisoner or person under Question & Answer

arrest escapes.

d. That the offender consents to the If a private person approached the

escape of the prisoner or person custodian of the prisoner and for a certain
under arrest, or that the escape consideration, told the custodian to leave the
takes place through his door of the cell unlocked for the prisoner to
negligence escape. What crime had been committed?

It is not infidelity in the custody of

 Note: This article is not applicable if a
prisoners because as far as the private person
private person made the arrest and he
is concerned, this crime is delivering prisoners
consented to the escape of the person he
from jail. The infidelity is only committed by the
arrested
custodian.
The offender under this article is not the
This crime can be committed also by a private
one who arrested the escaping prisoner but
person if the custody of the prisoner has been
one who agreed to have the custody or charge
confided to a private person.
of the prisoner or person under arrest.
Illustration:
 CRIMINAL LAW II ACJUCO 126

The prevailing ruling is against laxity in the

A policeman escorted a prisoner to court. After handling of prisoners.
the court hearing, this policeman was shot at
with a view to liberate the prisoner from his Illustration:
custody. The policeman fought the attacker
but he was fatally wounded. When he could A prison guard accompanied the prisoner in
no longer control the prisoner, he went to a the toilet. While answering the call of nature,
nearby house, talked to the head of the family police officer waiting there, until the prisoner
of that house and asked him if he could give escaped. Police officer was accused of
the custody of the prisoner to him. He said infidelity.
yes. After the prisoner was handcuffed in his
hands, the policeman expired. Thereafter, the There is no criminal liability because it does not
head of the family of that private house asked constitute negligence. Negligence
the prisoner if he could afford to give contemplated here refers to deliberate
something so that he would allow him to go. abandonment of duty.
The prisoner said, “Yes, if you would allow me Note, however, that according to a recent
to leave, you can come with me and I will give Supreme Court ruling, failure to accompany
the money to you.” This private persons went lady prisoner in the comfort room is a case of
with the prisoner and when the money was negligence and therefore the custodian is liable
given, he allowed him to go. What crime/s had for infidelity in the custody of prisoner.
been committed?
Prison guard should not go to any other place
Under Article 225, the crime can be committed not officially called for. This is a case of
by a private person to whom the custody of a infidelity in the custody of prisoner through
prisoner has been confided. negligence under Article 224.

Where such private person, while performing a

private function by virtue of a provision of law, INFIDELITY IN CUSTODY OF DOCUMENTS
shall accept any consideration or gift for the
non-performance of a duty confided to him, Article 226
Bribery is also committed. So the crime REMOVAL, CONCEALMENT, OR
committed by him is infidelity in the custody of DESTRUCTION OF DOCUMENTS
prisoners and bribery.
 ELEMENTS:
If the crime is delivering prisoners from jail, a. That the offender be a public
bribery is just a means, under Article 156, that officer.
would call for the imposition of a heavier
penalty, but not a separate charge of bribery b. That he abstracts, destroys or
under Article 156. conceals a document or papers.

But under Article 225 in infidelity, what is c. That the said document or paper
basically punished is the breach of trust should have been entrusted to
because the offender is the custodian. For such public officer by reason of
that, the crime is infidelity. If he violates the his office.
trust because of some consideration, bribery is
also committed. d. That damage, whether serious or
not, to a third party or to the
A higher degree of vigilance is required. public interest should have been
Failure to do so will render the custodian liable. caused.
 CRIMINAL LAW II ACJUCO 127

The act of obstruction, destruction or The act of removal, destruction or concealment

concealment must cause damage to a third should be coupled with criminal intent or malice
party or to the public interest. Damage to a (Manzanaris vs. Sandiganbayan, et al., G.R.
third party is usually pecuniary; but damage to No. 64750, Jan. 30, 1984).
public interest may consist in mere alarm to the
public or the alienation of its confidence on any  Removal is consummated upon removal or
branch of the government service. secreting away of the document from its
usual place. It is immaterial whether or not
 The document must be complete and one the illicit purpose of the offender has been
by which a right could be established or an accomplished
obligation could be extinguished
Removal of public records by the custodian
 Books, periodicals, pamphlets etc are not does not require that the record be brought out
documents of the premises where it is kept. It is enough
that the record be removed from the place
 “Papers” would include checks, where it should be and transferred to another
promissory notes and paper money place where it is not supposed to be kept. If
damage is caused to the public service, the
Removal of a document presupposes public officer is criminally liable for infidelity in
unlawful appropriation of the official document. the custody of official documents.
Destruction means to render the document
useless. Its nature to prove the existence of a  Infidelity in the custody of documents
fact is lost such that it cannot anymore prove through destruction or concealment does
the probability or improbability of a fact in not require proof of an illicit purpose
issue. Concealment on the other hand means
to make it appear that the document is not Where in case for bribery or corruption, the
available. monetary considerations was marked as
exhibits, such considerations acquires the
 A post office official who retained the mail nature of a document such that if the same
without forwarding the letters to their would be spent by the custodian the crime is
destination is guilty of infidelity in the not malversation but Infidelity in the custody of
custody of papers public records, because the money adduced as
exhibits partake the nature of a document and
 Removal of a document or paper must be not as money. Although such monetary
for an illicit purpose. consideration acquires the nature of a
document, the best evidence rule does not
If the removal of the document is for a lawful apply here. Example, photocopies may be
purpose and that is, to secure the same from presented in evidence.
imminent danger or loss, there is no crime
committed under the law, (Kataniag vs.  Delivering the document to the wrong party
People, 74 Phil. 45). is infidelity in the custody thereof

 There is illicit purpose when the  The damage may either be great or small
intention of the offender is to:
a. tamper with it Damage to public interest is necessary.
b. to profit by it However, material damage is not necessary.
c. to commit any act constituting a
breech of trust in the official thereof
 CRIMINAL LAW II ACJUCO 128

Although there is no material damage caused, would already bring about infidelity even
mere delay in rendering public service is though no damage has been suffered by
considered damage. anyone or by the public at large. The offender
does not have to misappropriate the same.
 The offender must be in custody of such Just trying to discover or look what is inside is
documents infidelity already.

Distinction between infidelity in the custody A crime is already committed regardless of

of public document, estafa and malicious whether the contents of the document are
mischief secret or private. It is enough that it is
entrusted to him in a sealed form or in a closed
In infidelity in the custody of public document, envelope and he broke the seal or opened the
the offender is the custodian of the official envelop. Public trust is already violated if he
document removed or concealed. managed to look into the contents of the
document.
In estafa, the offender is not the custodian of
the document removed or concealed. Distinction between infidelity and theft

In malicious mischief, the offender purposely There is infidelity if the offender opened the
destroyed and damaged the letter but did not take the same.
property/document.
There is theft if there is intent to gain when the
Article 227 offender took the money.
OFFICER BREAKING SEAL
Note that the document must be complete in
 ELEMENTS : legal sense. If the writings are mere form,
a. That the offender is a public there is no crime.
officer.
Illustration:
b. That he is charged with the
custody of papers or property. As regard the payroll, which has not been
signed by the Mayor, no infidelity is committed
c. That these papers or property are because the document is not yet a payroll in
sealed by proper authority. the legal sense since the document has not
been signed yet.
d. That he breaks the seals or
permits them to be broken. In "breaking of seal", the word "breaking"
should not be given a literal meaning. Even if
 It is the breaking of the seals and not the actually, the seal was not broken, because the
opening of a closed envelope which is custodian managed to open the parcel without
punished breaking the seal.

 Damage or intent to cause damage is not

necessary; damage is presumed Article 228
OPENING OF CLOSED DOCUMENTS
If the official document is sealed or otherwise
placed in an official envelope, the element of  ELEMENTS:
damage is not required. The mere breaking of a. That the offender is a public
the seal or the mere opening of the document officer.
 CRIMINAL LAW II ACJUCO 129

b. That any closed papers, The secrets referred to in this article are those
documents, or objects are which have an official or public character. It
entrusted to his custody. does not include secret information regarding
private individuals. Nor does it include military
c. That he opens or permits to be or State secrets in as much as the revelation of
opened said closed papers, the same is classified as espionage, a crime in
documents or objects. violation of the national security of the State.

d. That he does not have proper b. Secrets of a private individual is not

authority. included

 Note: Damage also not necessary c. Espionage for the benefit of another
State is not contemplated by the
In Article 227, the mere breaking of the seal is article. If regarding military secrets or
what is made punishable while in Article 228, secrets affecting state security, the
the mere opening of closed documents is crime may be espionage.
enough to hold the offender criminally liable.
The breaking of the seal or the opening of the
closed document must be done without lawful  ELEMENTS OF PAR 2 – DELIVERING
authority or order from competent authority. In WRONGFULLY PAPERS OR COPIES OF
both offenses, damage to the public interest is PAPERS OF WHICH HE MAY HAVE
not required. CHARGE AND WHICH SHOULD NOT BE
PUBLISHED:
a. That the offender is a public
REVELATION OF SECRETS officer.

Article 229 b. That he has charge of papers.

REVELATION OF SECRET BY AN OFFICER
c. That those papers should not be
 ELEMENTS OF PAR.1: BY REASON OF published.
HIS OFFICIAL CAPACITY
a. That the offender is a public d. That he delivers those papers or
officer. copies thereof to a third person.

b. That he knows of a secret by e. That the delivery is wrongful.

reason of his official capacity.
f. That damage be caused to public
c. That he reveals such secret interest.
without authority or justifiable
reasons.  Notes:
a. “Charge”: means custody or
d. That damage, great or small, be control. If he is merely entrusted with
caused to the public interest. the papers and not with the custody
(damage is essential) thereof, he is not liable under this
article
 Notes:
a. Secret must affect public interest b. If the papers contain secrets which
should not be published, and the
public officer having charge thereof
removes and delivers them
 CRIMINAL LAW II ACJUCO 130

wrongfully to a third person, the a. That the offender is a judicial or

crime is revelation of secrets. On the executive officer.
other hand, if the papers do not
contain secrets, their removal for an b. That there is a judgment, decision
illicit purpose is infidelity in the or order of superior authority.
custody of documents
c. That such judgment, decision or
c. Damage is essential to the act order was made within the scope
committed of the jurisdiction of the superior
authority and issued with all the
legal formalities.

d. that the offender without any legal

justification openly refuses to
Article 230 execute the said judgment,
PUBLIC OFFICER REVEALING SECRETS decision or order which he is duty
OF PRIVATE INDIVIDUAL bound to obey.

 ELEMENTS: The gravamen of the offense is the open

a. That the offender is a public refusal of the offender to execute the order
officer without justifiable reason.

b. That he knows of the secret of a  Note: Judgment should have been

private individual by reason of his rendered in a hearing and issued within
office. proper jurisdiction with all legal solemnities
required
c. That he reveals such secrets
without authority or justification The term “execute” as found in the law does
reason. not only means performance of an act since
the judgment, decision or order may also direct
 Revelation to one person is sufficient the non-performance of an act.

 If the offender is an attorney, he is properly The article does not apply to the members of
liable under Art 209 (betrayal of trust by an Congress.
attorney)

 Damage to private individual is not Article 232

necessary DISOBEDIENCE TO ORDER OF SUPERIOR
OFFICER WHEN SAID ORDER WAS
SUSPENDED BY INFERIOR OFFICER
OTHER OFFENSES OR IRREGULARITIES
BY PUBLIC OFFICERS  ELEMENTS:
a. That the offender is a public
officer.
Article 231
OPEN DISOBEDIENCE b. That an order is issued by his
superior for execution.
 ELEMENTS:
 CRIMINAL LAW II ACJUCO 131

c. That he has for any reason  Damage to the public interest or third party
suspended the execution of such is essential
order.
Damage is essential whether great or small.
d. That his superior disapproves the But the penalty is affected by the seriousness
suspension of the execution of of the damage. Note that the refusal must be
the order. done with malice.

e. That the offender disobeys his  Demand is necessary

superior despite the disapproval
of the suspension. The situation contemplated herein may refer to
the administration of justice before the case is
 Note: A public officer is not liable if the filed in court. Competent authority may refer to
order of the superior is illegal persons in authority who are charged by the
law to help in the administration of justice. The
What is contemplated here is a situation where term may refer to police authorities. However,
the subordinate has some doubts regarding the when a case under investigation reaches the
legality of the order. Hence, he is afforded an court, the remedy may not be limited to
opportunity to suspend the execution of the incurring criminal liability under this article
order, so as to give him time to further study because the refusal may already be punished
the same. He commits no crime for doing this as direct or indirect contempt of court.
act. However, if he continues to suspend the
execution of the order notwithstanding the This is a crime, which a policeman may commit
disapproval by his superior of the stay of the when, being subpoenaed to appear in court in
execution, such refusal on his part already connection with a crime investigated by him but
constitutes a crime punishable under this because of some arrangement with the
article. offenders, the policeman does not appear in
court anymore to testify against the offenders.
He tried to assail the subpoena so that
Article 233 ultimately the case would be dismissed. It was
REFUSAL OF ASSISTANCE already held that the policeman could be
prosecuted under this crime of refusal of
 ELEMENTS: assistance and not that of dereliction of duty.
a. That the offender is a public
officer.
Article 234
b. That a competent authority REFUSAL TO DISCHARGE ELECTIVE
demands from the offender that OFFICE
he lend his cooperation towards
the administration of justice or  ELEMENTS:
other public service. a. That the offender is elected by
popular election to a public office.
c. That the offender fails to do so
maliciously. b. That he refuses to be sworn in or
discharge the duties of said
 Involves a request from one public officer to office.
another
c. That there is no legal motive for
such refusal to be sworn in or to
 CRIMINAL LAW II ACJUCO 132

discharge the duties of said 2. by maltreating such prisoner

office. to extort a confession or to
obtain some information from
After proclamation of a candidate to a public the prisoner.
office, it becomes his duty to render public
service. Since it is his duty, then his refusal to The maltreatment does not really require
perform such duty is punishable under the law. physical injuries. Any kind of punishment not
authorized or though authorized if executed in
 Note: Even if the person did not run for the excess of the prescribed degree.
office on his own will as the Constitution
provides that every citizen may be required But if as a result of the maltreatment, physical
to render service injuries were caused to the prisoner, a
separate crime for the physical injuries shall be
filed. You do not complex the crime of physical
injuries with the maltreatment because the way
Article 235 is worded, it prohibits the
complexing of the crime.

If the maltreatment was done in order to extort

confession, therefore, the constitutional right of
the prisoner is further violated. The penalty is
Article 235 qualified to the next higher degree.
MALTREATMENT OF PRISONERS
 The public officer must have actual charge
 ELEMENTS: of the prisoner in order to be held liable
a. That the offender is a public
officer or employee. If the public officer is not the custodian of the
prisoner, and he manhandles the latter, the
b. That he has under charge a crime is physical injuries.
prisoner or detention prisoner
(otherwise the crime is physical If a Barangay Captain maltreats a person after
injuries) the latter’s arrest but before confinement, the
offense is not maltreatment but physical
c. That he maltreats such prisoner in injuries. The victim must actually be confined
either of the following manners: either as a convict or a detention prisoner for
Art. 235 to apply. (People vs. Baring, et al.,
1. By overdoing himself in the 37 O.G. 1366).
correction or handling of a
prisoner or detention prisoner  To be considered a detention prisoner, the
under his charge either – person arrested must be placed in jail even
for just a short while
 by the imposition of
punishments not authorized The offended party here must be a prisoner in
by the regulations, or the legal sense. The mere fact that a private
 by inflicting such citizen had been apprehended or arrested by a
punishments (those law enforcer does not constitute him a prisoner.
authorized) in a cruel and To be a prisoner, he must have been booked
humiliating manner, or and incarcerated no matter how short it is.

Illustration:
 CRIMINAL LAW II ACJUCO 133

Article 237
A certain snatcher was arrested by a law PROLONGING PERFORMANCE OF DUTIES
enforcer, brought to the police precinct, turned AND POWERS
over to the custodian of that police precinct.
Every time a policeman entered the police  ELEMENTS:
precinct, he would ask, “What is this fellow a. That the offender is holding a
doing here? What crime has he committed?”. public office.
The other policeman would then tell, “This
fellow is a snatcher.” So every time a b. That the period provided by law,
policeman would come in, he would inflict regulations or special provisions
injury to him. This is not maltreatment of for holding such office has
prisoner because the offender is not the already expired.
custodian. The crime is only physical injuries.
c. That he continues to exercise the
But if the custodian is present there and he duties and powers of such office.
allowed it, then he will be liable also for the
physical injuries inflicted, but not for  Note: The article contemplates officers who
maltreatment because it was not the custodian have been suspended, separated or
who inflicted the injury. declared over-aged or dismissed

But if it is the custodian who effected the The crime is committed only if the public officer
maltreatment, the crime will be maltreatment of has lost every right to the office because there
prisoners plus a separate charge for physical are offices which require the officer to continue
injuries. serving as such properly relieved. The law is
intended to put an end to the “principle of hold
 Offender may also be held liable for – over”.
physical injuries or damage caused

Article 236 Article 238

ANTICIPATION OF DUTIES OF A PUBLIC ABANDONMENT OF OFFICE OR POSITION
OFFICE
ELEMENTS:
 ELEMENTS: a. That the offender is a public
a. That the offender is entitled to hold officer.
a public office or employment,
either by election or appointment. b. That he formally resigns from his
position.
b. That the law requires that he should
first be sworn in and/or should first c. That his resignation has not yet
give a bond. been accepted.

c. That he assumes the performance d. That he abandons his office to the

of the duties and powers of such detriment of the public service.
office.
 There must be formal or written resignation
d. That he has not taken his oath of
office and /or given the bond Oral resignation is not allowed. The resignation
required by law. must be in writing and directed to the
appointing power who has the authority to
 CRIMINAL LAW II ACJUCO 134

accept or disapprove the same. This b. That he (a.) makes general rules or
requirement is indispensable because the letter regulations beyond the scope of his
of resignation goes into a process. authority or (b.) attempts to repeal a
law or (c.) suspends the execution
 The offense is qualified if the purpose thereof.
behind the abandonment is to evade the
discharge of duties consisting of preventing,
prosecuting or punishing any of the crimes
against national security. The penalty is Article 240
higher ( one degree ). This involves the USURPATION OF EXECUTIVE FUNCTIONS
following crimes:
a. treason ELEMENTS:
b. conspiracy and proposal to commit a. That the offender is a judge.
conspiracy
c. misprision of treason b. That he (a.) assumes a power
d. espionage pertaining to the executive
e. inciting to war or giving motives to authorities, or (b.) obstructs
reprisals executive authorities in the lawful
f. violation of neutrality exercise of their powers.
g. correspondence with hostile country
h. flight to enemy country  Note: Legislative officers are not liable for
i. piracy and mutiny on the high seas usurpation of executive functions
j. rebellion
k. conspiracy and proposal to commit Article 241
rebellion USURPATION OF JUDICIAL FUNCTIONS
l. disloyalty to public officers
m. inciting to rebellion ELEMENTS:
n. sedition a. That the offender is an officer of the
o. conspiracy to commit sedition executive branch of the
p. inciting to sedition government.

b. That he (a.) assumes judicial

Abandonment of Dereliction of Duty powers, or (b.) obstruct the
Office or Position (208) execution of any order decision
(238) rendered by any judge within his
There is actual Public officer does not jurisdiction.
abandonment through abandon his office but
resignation to evade merely fails to  Note: A mayor is guilty under this article
the discharge of prosecute a violation when he investigates a case while a justice
duties. of the law. of the peace is in the municipality

Article 242
DISOBEYING REQUEST FOR
Article 239 DISQUALIFICATION
USURPATION OF LEGISLATIVE POWERS
ELEMENTS:
ELEMENTS: a. That the offender is a public officer.
a. That the offender is an executive or
judicial officer. b. That a proceeding is pending before
such public officer.
 CRIMINAL LAW II ACJUCO 135

c. That such person lacks the legal

c. That there is a question brought qualification therefor.
before the proper authority
regarding his jurisdiction, which is d. That the offender knows that his
not yet decided. nominee or appointee lacks the
qualification at the time he made the
d. That he has been lawfully required nomination or appointment.
to refrain from continuing the
proceeding.  Recommending, knowing that the person
recommended is not qualified is not a crime
e. That he continues the proceeding.
The word “nominate” is not the same as
Even if the jurisdiction of the offender is later “recommend.” To nominate is to guarantee to
upheld or sustained, he is still liable because the appointing power that the person
what is in issue is not the legality of his nominated has all the qualifications to the
jurisdiction, but whether he obeyed or office. Recommendation on the other hand
disobeyed the temporary restraining order does not make any guarantee as to the legal
issued by the higher authority. fitness of the candidate to public office.

 There must be a law providing for the

Article 243 qualifications of a person to be nominated
ORDERS OR REQUESTS BY EXECUTIVE or appointed to a public office
OFFICER TO ANY JUDICIAL AUTHORITY

ELEMENTS: Article 245

a. That the offender is an executive ABUSES AGAINST CHASTITY
officer.
ELEMENTS:
b. That he addresses any order or a. That the offender is a public officer.
suggestion to any judicial authority.
b. That he solicits or makes immoral
c. That the order or suggestion relates or indecent advances to a woman.
to any case or business coming
within the exclusive jurisdiction of c. That such woman must be –
the courts of justice.
1. interested in matters pending
 Note: Legislative or judicial officers are not before the offender for decision,
liable under this article or with respect to which he is
required to submit a report to or
consult with a superior officer, or
Article 244
UNLAWFUL APPOINTMENTS 2. under the custody of the offender
who is a warden or other public
ELEMENTS: officer directly charged with care
a. That the offender is a public officer. and custody of prisoners or
person under arrest, or
b. That he nominates or appoints a
person to a public office. 3. the wife, daughter, sister or
relative within the same degree
 CRIMINAL LAW II ACJUCO 136

by affinity of the person in the  The crime is consummated by mere

custody of the offender proposal

Only a lady can be a complainant here so that It is not necessarily for the offended party to
a gay guard or warden who makes immoral surrender her virtue to consummate the crime.
proposals or indecent advances to a male Mere proposal is sufficient to consummate the
prisoner is not liable under this law. crime.

Mere indecent solicitation or advances of a Even if the woman may have lied with the
woman over whom the public officer exercises hearing officer or to the public officer and
a certain influence because the woman is acceded to him, that does not change the
involved in a case where the offender is to crime because the crime seeks to penalize the
make a report of result with superiors or taking advantage of official duties.
otherwise a case which the offender was
investigating. It is immaterial whether the woman did not
agree or agreed to the solicitation. If the
This crime is also committed if the woman is a woman did not agree and the public officer
prisoner and the offender is her jail warden or involved pushed through with the advances,
custodian, or even if the prisoner may be a attempted rape may have been committed.
man if the jail warden would make the immoral
solicitations upon the wife, sister, daughter, or Legally, a prisoner is an accountability of the
relative by affinity within the same degree of government. So the custodian is not supposed
the prisoner involved. to interfere. Even if the prisoner may like it, he
is not supposed to do that. Otherwise, abuse
 The mother of the person in the custody of against chastity is committed.
the public officer is not included
If he forced himself against the will of the
This crime cannot be committed if the warden woman, another crime is committed, that is,
is a woman and the prisoner is a man. Men rape aside from abuse against chastity.
have no chastity.
You cannot consider the abuse against chastity
If the warden is also a woman but is a lesbian, as absorbed in the rape because the basis of
it is submitted that this crime could be penalizing the acts is different from each other.
committed, as the law does not require that the
custodian be a man but requires that the  Proof of solicitation is not necessary when
offended be a woman. there is sexual intercourse

 Solicit: means to propose earnestly and

persistently something unchaste and Republic Act No. 7877 (Anti-Sexual
immoral to a woman Harassment Act)

The word “solicit” means to demand earnestly. Committed by any person having authority,
In this case, the demand is for sexual favor. It influence or moral ascendancy over another in
must be immoral or indecent and done by the a work, training or education environment
public officer taking advantage of his position when he or she demands, requests, or
as one who can help by rendering a favorable otherwise requires any sexual favor from the
decision or unwarranted benefits, advantage or other regardless of whether the demand,
preference to a person under his custody. request or requirement for submission is
accepted by the object of the said act (for a
passing grade, or granting of scholarship or
 CRIMINAL LAW II ACJUCO 137

honors, or payment of a stipend, allowances,

benefits, considerations; favorable
compensation terms, conditions, promotions or
when the refusal to do so results in a
detrimental consequence for the victim).

Also holds liable any person who directs or

induces another to commit any act of sexual
harassment, or who cooperates in the
commission, the head of the office, educational
or training institution solidarily.

Complaints to be handled by a committee on

decorum, which shall be determined by rules
and regulations on such.

Administrative sanctions shall not be a bar to

prosecution in the proper courts for unlawful
acts of sexual harassment.

TITLE EIGHT
CRIMES AGAINST PERSONS
Crimes against persons

1. Parricide (Art. 246);

2. Murder (Art. 248);

3. Homicide (Art. 249);

4. Death caused in a tumultuous affray

(Art. 251);

5. Physical injuries inflicted in a tumultuous

affray (Art. 252);

6. Giving assistance to suicide (Art. 253);

7. Discharge of firearms (Art. 254);

8. Infanticide (Art. 255);

9. Intentional abortion (Art. 256);

10. Unintentional abortion (Art. 257);

11. Abortion practiced by the woman herself

or by her parents (Art. 258);
 CRIMINAL LAW II ACJUCO 138

12. Abortion practiced by a physician or the offender and the offended party are related
midwife and dispensing of abortives as parent and child.
(Art. 259);
Except between husband and wife, the
13. Duel (Art. 260); offender must be related to the offended party
by blood.
14. Challenging to a duel (Art. 261);
2. Parents and children are not included in
15. Mutilation (Art. 262); the term “ascendants” or “descendants”

16. Serious physical injuries (Art. 263); 3. The other ascendant or descendant
must be legitimate. On the other hand,
17. Administering injurious substances or the father, mother or child may be
beverages (Art. 264); legitimate or illegitimate

18. Less serious physical injuries (Art. 265); If the offender and the offended party, although
related by blood and in the direct line, are
19. Slight physical injuries and maltreatment separated by an intervening illegitimate
(Art. 266); and relationship, parricide can no longer be
committed. The illegitimate relationship
20. Rape (Art. 266-A). between the child and the parent renders all
relatives after the child in the direct line to be
DESTRUCTION OF LIFE illegitimate too.

Article 246 The only illegitimate relationship that can bring

PARRICIDE about parricide is that between parents and
illegitimate children as the offender and the
ELEMENTS: offended parties.
1. That a person is killed.
Illustration:
2. That the deceased is killed by the
accused. A is the parent of B, the illegitimate daughter.
B married C and they begot a legitimate child
3. That the deceased is the father, mother, D. If D, daughter of B and C, would kill A, the
or child, whether legitimate or grandmother, the crime cannot be parricide
illegitimate, or a legitimate other anymore because of the intervening
ascendant or other descendant, or the illegitimacy. The relationship between A and D
legitimate spouse of the accused. is no longer legitimate. Hence, the crime
committed is homicide or murder.
Notes:
1. The relationship of the offender with the A, an illegitimate son of B, who killed the
victim is the essential element of the legitimate father of the latter, is not guilty of
felony Parricide because in case of other ascendants
(grandparents, great grandparents, etc.), the
The relationship must be in the direct line and relationship with the killer must be legitimate.
not in the collateral line. The same is true with other descendants – that
is, grandchildren, great grandchildren, etc.
The relationship between the offender and the
offended party must be legitimate, except when 4. The child should not be less than 3 days
old. Otherwise, the offense is infanticide
 CRIMINAL LAW II ACJUCO 139

That the mother killed her child in order to Illustration:

conceal her dishonor is not mitigating. This is
immaterial to the crime of parricide, unlike in A spouse of B conspires with C to kill B. C is
the case of infanticide. If the child is less than the stranger in the relationship. C killed B with
three days old when killed, the crime is treachery. The means employed is made
infanticide and intent to conceal her dishonor is known to A and A agreed that the killing will be
considered mitigating. done by poisoning.

5. Relationship must be alleged As far as A is concerned, the crime is based on

his relationship with B. It is therefore parricide.
In killing a spouse, there must be a valid The treachery that was employed in killing
subsisting marriage at the time of the killing. Bong will only be generic aggravating
Also, the information should allege the fact of circumstance in the crime of parricide because
such valid marriage between the accused and this is not one crime that requires a qualifying
the victim. circumstance.

In a ruling by the Supreme Court, it was held But that same treachery, insofar as C is
that if the information did not allege that the concerned, as a stranger who cooperated in
accused was legally married to the victim, he the killing, makes the crime murder; treachery
could not be convicted of parricide even if the becomes a qualifying circumstance.
marriage was established during the trial. In
such cases, relationship shall be appreciated 7. Even if the offender did not know that
as generic aggravating circumstance. the person he had killed is his son, he is
still liable for parricide because the law
The Supreme Court has also ruled that Muslim does not require knowledge of the
husbands with several wives can be convicted relationship
of parricide only in case the first wife is killed.
There is no parricide if the other wives are Article 365 expressly provides that parricide
killed although their marriage is recognized as can be committed through reckless
valid. This is so because a Catholic man can imprudence. The penalty will not be under
commit the crime only once. If a Muslim Article 246 but under Article 365.
husband could commit this crime more than
once, in effect, he is being punished for the Similarly, parricide can be committed by
marriage which the law itself authorized him to mistake. This is demonstrated in a situation
contract. where a person wanting to kill a stranger, kills
his own father by mistake. Although the crime
6. A stranger who cooperates in committed is parricide, the offender will not be
committing parricide is liable for murder punished under Article 246 but under Article
or homicide 49, which prescribes a penalty much lower
than that provided under Article 246.
Since parricide is a crime of relationship, if a
stranger conspired in the commission of the
crime, he cannot be held liable for parricide. Article 247
His participation would make him liable for DEATH OR PHYSICAL INJURIES UNDER
murder or for homicide, as the case may be. EXCEPTIONAL
The rule of conspiracy that the act of one is the CIRCUMSTANCES
act of all does not apply here because of the
personal relationship of the offender to the Requisites:
offended party.
 CRIMINAL LAW II ACJUCO 140

1. A legally married person or parent It is not necessary that the spouse actually saw
surprises his spouse or daughter (the the sexual intercourse being committed. It is
latter must be under 18 and living with enough that he/she surprised them under such
them) in the act of committing sexual circumstances that no other reasonable
intercourse with another person conclusion can be inferred but that a carnal act
was being performed or has just been
2. He/she kills any or both of them or committed.
inflicts upon any or both of them any
serious physical injury in the act or The article does not apply where the wife was
immediately thereafter not surprised in flagrant adultery but was being
abused by a man as in this case there will be
3. He has not promoted or facilitated the defense of relation.
prostitution of his wife or daughter, or
that he has not consented to the If the offender surprised a couple in sexual
infidelity of the other spouse. intercourse, and believing the woman to be his
wife, killed them, this article may be applied if
Notes: the mistake of facts is proved.
1. Article does not define or penalize a
felony The benefits of this article do not apply to the
person who consented to the infidelity of his
Article 247, far from defining a felony merely spouse or who facilitated the prostitution of his
grants a privilege or benefit, more of an wife.
exempting circumstance as the penalty is
intended more for the protection of the accused 6. Sexual intercourse does not include
than a punishment. Death under exceptional preparatory acts
character can not be qualified by either
aggravating or mitigating circumstances. So if the surprising took place before any
actual sexual intercourse could be done
If the accused fails to establish the because the parties are only in their
circumstances called for in Article 247, he/she preliminaries, the article cannot be invoked
will be guilty of Parricide and Murder or anymore.
Homicide if the victims were killed.
7. Immediately thereafter: means that the
2. Not necessary that the parent be discovery, escape, pursuit and the killing
legitimate must all form parts of one continuous
act
3. Article applies only when the daughter is
single The phrase “immediately thereafter” has been
interpreted to mean that between the
4. Surprise: means to come upon surprising and the killing of the
suddenly or unexpectedly inflicting of the physical injury, there
should be no break of time. In other
5. Art 247 is applicable when the accused words, it must be a continuous
did not see his spouse in the act sexual process.
intercourse with another person.
However, it is enough that If there was already a break of time between
circumstances reasonably show that the the sexual act and the killing or inflicting of the
carnal act is being committed or has injury, the law presupposes that the offender
been committed regained his reason and therefore, the article
will not apply anymore.
 CRIMINAL LAW II ACJUCO 141

(3) Homicide – through simple negligence,

8. The killing must be the direct by-product if a third party is killed;
of the rage of the accused
(4) Physical injuries – through reckless
Article 247 does not provide that the victim is to imprudence, if a third party is injured.
be killed instantly by the accused after If death results or the physical injuries are
surprising his spouse in the act of intercourse. serious, there is criminal liability although the
What is required is that the killing is the penalty is only destierro. The banishment is
proximate result of the outrage overwhelming intended more for the protection of the offender
the accused upon the discovery of the infidelity rather than a penalty.
of his spouse. The killing should have been
actually motivated by the same blind impulse. If the crime committed is less serious physical
injuries or slight physical injuries, there is no
9. No criminal liability is incurred when less criminal liability.
serious or slight physical injuries are
inflicted. Moreover, in case third persons
caught in the crossfire suffer physical
injuries, the accused is not liable. The
principle that one is liable for the
consequences of his felonious act is not
applicable because he is not committing
a felony

In the case of People v. Abarca, 153 SCRA

735, two persons suffered physical injuries as Article 248
they were caught in the crossfire when the MURDER
accused shot the victim. A complex crime of
double frustrated murder was not committed as ELEMENTS :
the accused did not have the intent to kill the 1. That a person was killed.
two victims. Here, the accused did not commit
murder when he fired at the paramour of his 2. That the accused killed him.
wife. Inflicting death under exceptional
circumstances is not murder. The accused 3. That the killing was attended by any of
was held liable for negligence under the first the following qualifying circumstances
part, second paragraph of Article 365, that is,
less serious physical injuries through simple a. with treachery, taking advantage
negligence. No aberratio ictus because he of superior strength, with the aid
was acting lawfully. or armed men, or employing
means to weaken the defense or
A person who acts under Article 247 is not of means or persons to insure or
committing a crime. Since this is merely an afford impunity
exempting circumstance, the accused must
first be charged with: b. in consideration of price, reward
or promise
(1) Parricide – if the spouse is killed;
c. by means of inundation, fire,
(2) Murder or homicide – depending on how poison, explosion, shipwreck,
the killing was done insofar as the stranding of vessel, derailment or
paramour or the mistress is concerned; assault upon a street car or
locomotive, fall of airship, by
 CRIMINAL LAW II ACJUCO 142

means of motor vehicles or with 3. Treachery and premeditation are

the use of any other means inherent in murder with the use of
involving great waste or ruin poison

d. on occasion of any of the Ortega Notes:

calamities enumerated in the
preceding paragraph, or of an In murder, any of the following qualifying
earthquake, eruption of a volcano, circumstances is present:
destructive cyclone, epidemic or
any other public calamity (1) Treachery, taking advantage of superior
strength, aid or armed men, or
e. with evident premeditation employing means to waken the defense,
or of means or persons to insure or
f. with cruelty, by deliberately and afford impunity;
inhumanely augmenting the
suffering of the victim or There is treachery when the offender
outraging or scoffing at his commits any of the crimes against the
person or corpse person employing means, methods or
forms in the execution thereof that tend
4. The killing is not parricide or infanticide. directly and especially to insure its
execution without risk to himself arising
Notes: from the defense which the offended
party might make.
While the circumstance of “by a band” is not
among those enumerated that could qualify This circumstance involves means,
killing to murder, it would seem that if the killers methods, form in the execution of the
constituted a band, the crime is murder killing which may actually be an
because the circumstance of “with the aid of aggravating circumstance also, in which
armed men” is included in the qualifying case, the treachery absorbs the same.
circumstances.
Illustration:
1. The victim must be killed in order to
consummate the offense. Otherwise, it A person who is determined to kill
would be attempted or frustrated murder resorted to the cover of darkness at
nighttime to insure the killing. Nocturnity
Killing a person with treachery is murder even becomes a means that constitutes
if there is no intent to kill. (People vs. Cagoco, treachery and the killing would be
58 Phil. 530) murder. But if the aggravating
circumstance of nocturnity is considered
2. Any of the qualifying circumstances by itself, it is not one of those which
must be alleged in the information. qualify a homicide to murder. One might
Otherwise, they will only be considered think the killing is homicide unless
as generic aggravating circumstances nocturnity is considered as constituting
treachery, in which case the crime is
When the other circumstances are absorbed or murder.
included in one qualifying circumstance, they
cannot be treated or separated as generic
aggravating circumstances. (People vs.
Remalante, 92 Phil. 48)
 CRIMINAL LAW II ACJUCO 143

The essence of treachery is that the murder. The accused can only be
offended party was denied the chance to convicted of homicide.
defend himself because of the means,
methods, form in executing the crime Generally, murder cannot be committed
deliberately adopted by the offender. It if at the beginning, the offended had no
is a matter of whether or not the intent to kill because the qualifying
offended party was denied the chance of circumstances must be resorted to with
defending himself. a view of killing the offended party. So if
the killing were at the “spur of the
If the offended was denied the chance to moment”, even though the victim was
defend himself, treachery qualifies the denied the chance to defend himself
killing to murder. If despite the means because of the suddenness of the
resorted to by the offender, the offended attack, the crime would only be
was able to put up a defense, although homicide. Treachery contemplates that
unsuccessful, treachery is not available. the means, methods and form in the
Instead, some other circumstance may execution were consciously adopted
be present. Consider now whether such and deliberately resorted to by the
other circumstance qualifies the killing offender, and were not merely incidental
or not. to the killing.

Illustration: If the offender may have not intended to

kill the victim but he only wanted to
If the offender used superior strength commit a crime against him in the
and the victim was denied the chance to beginning, he will still be liable for
defend himself, there is treachery. The murder if in the manner of committing
treachery must be alleged in the the felony there was treachery and as a
information. But if the victim was able to consequence thereof the victim died.
put up an unsuccessful resistance, there This is based on the rule that a person
is no more treachery but the use of committing a felony shall be liable for
superior strength can be alleged and it the consequences thereof although
also qualifies the killing to murder. different from that which he intended.

One attendant qualifying circumstance

is enough. If there are more than one Illustration:
qualifying circumstance alleged in the
information for murder, only one The accused, three young men,
circumstance will qualify the killing to resented the fact that the victim
murder and the other circumstances will continued to visit a girl in their
be taken as generic. neighborhood despite the warning they
gave him. So one evening, after the
To be considered qualifying, the victim had visited the girl, they seized
particular circumstance must be alleged and tied him to a tree, with both arms
in the information. If what was alleged and legs around the tree. They thought
was not proven and instead another they would give him a lesson by
circumstance, not alleged, was whipping him with branches of
established during the trial, even if the gumamela until the victim fell
latter constitutes a qualifying unconscious. The accused left not
circumstance under Article 248, the knowing that the victim died.
same can not qualify the killing to
 CRIMINAL LAW II ACJUCO 144

The crime committed was murder. The pyrotechnics and incidentally, somebody
accused deprived the victim of the within the premises is killed, the crime is
chance to defend himself when the latter arson with homicide. But this is not a
was tied to a tree. Treachery is a complex crime under Article 48. This is
circumstance referring to the manner of single indivisible crime penalized under
committing the crime. There was no risk Article 326, which is death as a
to the accused arising from the defense consequence of arson. That somebody
by the victim. died during such fire would not bring
about murder because there is no intent
Although what was initially intended was to kill in the mind of the offender. He
physical injury, the manner adopted by intended only to destroy property.
the accused was treacherous and since However, a higher penalty will be
the victim died as a consequence applied.
thereof, the crime is murder -- although
originally, there was no intent to kill. When killing was accomplished “by means of
fire” alleged in the information, it does not
When the victim is already dead, intent qualify killing to Murder unless the use of fire
to kill becomes irrelevant. It is important was employed to kill the victim.
only if the victim did not die to determine
if the felony is physical injury or In People v. Pugay and Samson, 167
attempted or frustrated homicide. SCRA 439, there was a town fiesta and
the two accused were at the town plaza
So long as the means, methods and with their companions. All were
form in the execution is deliberately uproariously happy, apparently
adopted, even if there was no intent to drenched with drink. Then, the group
kill, there is treachery. saw the victim, a 25 year old retard
walking nearby and they made him
(2) In consideration of price, reward or dance by tickling his sides with a piece
promises; of wood. The victim and the accused
Pugay were friends and, at times, slept
(3) Inundation, fire, poison, explosion, in the same place together. Having
shipwreck, stranding of a vessel, gotten bored with their form of
derailment or assault upon a street car entertainment, accused Pugay went and
or locomotive, fall of an airship, by got a can of gasoline and poured it all
means of a motor vehicle, or with the over the retard. Then, the accused
use of other means involving great Samson lit him up, making him a
waste and ruin; frenzied, shrieking human torch. The
retard died.
The only problem insofar as the killing
by fire is concerned is whether it would It was held that Pugay was guilty of
be arson with homicide, or murder. homicide through reckless imprudence.
Samson only guilty of homicide, with the
When a person is killed by fire, the mitigating circumstance of no intention
primordial criminal intent of the offender to commit so grave a wrong. There was
is considered. If the primordial criminal no animosity between the two accused
intent of the offender is to kill and fire and the victim such that it cannot be
was only used as a means to do so, the said that they resort to fire to kill him. It
crime is only murder. If the primordial was merely a part of their fun making
criminal intent of the offender is to but because their acts were felonious,
destroy property with the use of they are criminally liable.
 CRIMINAL LAW II ACJUCO 145

dismember the different parts of the

(4) On occasion of any of the calamities body of the victim, indicative of an
enumerated in the preceding paragraph intention to scoff at or decry or humiliate
c, or an earthquake, eruption of volcano, the corpse of the victim, then what
destructive cyclone, epidemic or any would have murder because this
other public calamity; circumstance is recognized under Article
248, even though it was inflicted or was
(5) Evident premeditation; and committed when the victim was already
dead.
When the actual victim turns out to be different
from the intended victim, premeditation is not The following are holdings of the Supreme
aggravating. (People vs. Guillen, 85 Phil. Court with respect to the crime of murder:
307)
(1) Killing of a child of tender age is murder
(6) Cruelty, by deliberately and inhumanly qualified by treachery because the
augmenting the suffering of the victim, weakness of the child due to his tender
or outraging or scoffing at his person or age results in the absence of any
corpse. danger to the aggressor.

Cruelty includes the situation where the (2) Evident premeditation is absorbed in
victim is already dead and yet, acts price, reward or promise, if without the
were committed which would decry or premeditation the inductor would not
scoff the corpse of the victim. The crime have induced the other to commit the
becomes murder. act but not as regards the one induced.

Hence, this is not actually limited to (3 Abuse of superior strength is inherent in

cruelty. It goes beyond that because and comprehended by the circumstance
even if the victim is already a corpse of treachery or forms part of treachery.
when the acts deliberately augmenting
the wrong done to him were committed, (4) Treachery is inherent in poison.
the killing is still qualified to murder
although the acts done no longer (5) Where one of the accused, who were
amount to cruelty. charged with murder, was the wife of the
deceased but here relationship to the
Under Article 14, the generic deceased was not alleged in the
aggravating circumstance of cruelty information, she also should be
requires that the victim be alive, when convicted of murder but the relationship
the cruel wounds were inflicted and, should be appreciated as aggravating.
therefore, must be evidence to that
effect. Yet, in murder, aside from (6) Killing of the victims hit by hand grenade
cruelty, any act that would amount to thrown at them is murder qualified by
scoffing or decrying the corpse of the explosion not by treachery.
victim will qualify the killing to murder.
(7) Where the accused housemaid gagged
Illustration: a three year old boy, son of her master,
with stockings, placed him in a box with
Two people engaged in a quarrel and head down and legs upward and
they hacked each other, one killing the covered the box with some sacks and
other. Up to that point, the crime is other boxes, and the child instantly died
homicide. However, if the killer tried to because of suffocation, and then the
 CRIMINAL LAW II ACJUCO 146

accused demanded ransom from the

parents, such did not convert the 1. Intent to kill is conclusively presumed
offense into kidnapping with murder. when death resulted. Hence, evidence
The accused was well aware that the of intent to kill is required only in
child could be suffocated to death in a attempted or frustrated homicide
few minutes after she left. Ransom was
only a part of the diabolical scheme to 2. In all crimes against persons in which
murder the child, to conceal his body the death of the victim is an element,
and then demand money before there must be satisfactory evidence of
discovery of the body. (1) the fact of death and (2) the identity
of the victim
The essence of kidnapping or serious illegal
detention is the actual confinement or restraint Distinction between homicide and physical
of the victim or deprivation of his liberty. If injuries:
there is no showing that the accused intended
to deprive their victims of their liberty for some In attempted or frustrated homicide, there is
time and there being no appreciable interval intent to kill.
between their being taken and their being shot,
murder and not kidnapping with murder is In physical injuries, there is none. However, if
committed. as a result of the physical injuries inflicted, the
victim died, the crime will be homicide because
the law punishes the result, and not the intent
of the act.

The following are holdings of the Supreme

Court with respect to the crime of homicide:

(1) Physical injuries are included as one of

the essential elements of frustrated
Article 249 homicide.
HOMICIDE
(2) If the deceased received two wounds
ELEMENTS: from two persons acting independently
1. That a person was killed. of each other and the wound inflicted by
either could have caused death, both of
2. That the accused killed him without any them are liable for the death of the
justifying circumstances. victim and each of them is guilty of
homicide.
3. That the accused had the intention to
kill, which is presumed. (3) If the injuries were mortal but were only
due to negligence, the crime committed
4. That the killing was not attended by any will be serious physical injuries through
of the qualifying circumstances of reckless imprudence as the element of
murder, or by that of parricide or intent to kill in frustrated homicide is
infanticide. incompatible with negligence or
imprudence.
Notes:
Homicide is the unlawful killing of a person (4) Where the intent to kill is not manifest,
not constituting murder, parricide or the crime committed has been generally
infanticide. considered as physical injuries and not
 CRIMINAL LAW II ACJUCO 147

attempted or frustrated murder or

homicide. ELEMENTS:
1. That there be several persons.
(5) When several assailants not acting in
conspiracy inflicted wounds on a victim 2. That they did not compose groups
but it cannot be determined who inflicted organized for the common purpose of
which would which caused the death of assaulting and attacking each other
the victim, all are liable for the victim’s reciprocally.
death.
3. That these several persons quarreled
Note that while it is possible to have a crime of and assaulted one another in a confused
homicide through reckless imprudence, it is not and tumultuous manner.
possible to have a crime of frustrated homicide
through reckless imprudence. 4. That someone was killed in the course
of the affray.
If a boxer killed his opponent in a boxing bout
duly licensed by the Government without any 5. That it cannot be ascertained who
violation of the governing rules and regulations, actually killed the deceased.
there is no Homicide to speak of. If he hit his
opponent below the belt without any intention 6. That the person or persons who inflicted
to do so, it is Homicide Through Reckless serious physical injuries or who used
Imprudence if the latter died as a result. If he violence can be identified.
intentionally hit his opponent on that part of his
body causing the death, the crime is Homicide. Notes:
1. Tumultuous affray exists when at least 4
The shooting of a peace officer who was fully persons take part in it
aware of the risks in pursuing the malefactors
when done in a spur of the moment is only 2. When there are 2 identified groups of
Homicide. (People vs. Porras, 255 SCRA men who assaulted each other, there is
514). no tumultuous affray

Common misconception on the meaning of 3. Persons liable are:

corpus delicti. a. person/s who inflicted serious
physical injuries
Corpus delicti means body of the crime. It does
not refer to the body of the murdered person. b. if it is not known who inflicted serious
In all crimes against persons in which the physical injuries on the deceased, all
death of the victim is an element of the crime, persons who used violence upon the
there must be proof of the fact of death and person of the victim
identity of the victim. (Cortez vs. Court of
Appeals, 162 SCRA 139) If those who actually killed the victim can be
determined, they will be the ones to be held
liable, and those who inflicted serious or less
Article 250 serious or slight physical injuries shall be
PENALTY FOR FRUSTRATED PARRICIDE, punished for said corresponding offenses
MURDER OR HOMICIDE provided no conspiracy is established with the
killers.

Article 251
DEATH IN A TUMULTOUS AFFRAY
 CRIMINAL LAW II ACJUCO 148

(3) If nobody could still be traced to have

Tumultuous affray simply means a employed violence upon the victim,
commotion in a tumultuous and nobody will answer. The crimes
confused manner, to such an extent committed might be disturbance of
that it would not be possible to identify public order, or if participants are armed,
who the killer is if death results, or who it could be tumultuous disturbance, or if
inflicted the serious physical injury, but property was destroyed, it could be
the person or persons who used malicious mischief.
violence are known.

It is not a tumultuous affray which brings about Article 252

the crime; it is the inability to ascertain actual PHYSICAL INJURIES INFLICTED IN A
perpetrator. It is necessary that the very TUMULTOUS AFFRAY
person who caused the death can not be
known, not that he can not be identified. ELEMENTS:
Because if he is known but only his identity is 1. that there is a tumultuous affray as
not known, then he will be charged for the referred to in the preceding article.
crime of homicide or murder under a fictitious
name and not death in a tumultuous affray. If 2. That a participant or some participants
there is a conspiracy, this crime is not thereof suffer serious physical injuries
committed. or physical injuries of a less serious
nature only.
To be considered death in a tumultuous
affray, there must be: 3. that the person responsible therefor
cannot be identified.
(1) a quarrel, a free-for-all, which should
not involve organized group; and 4. That all those who appear to have used
violence upon the person of the
(2) someone who is injured or killed offended party are known.
because of the fight.
Unlike in Article 251, where the victim need not
The person killed in the affray need not be one be one of the participants, the injured party in
of the participants. the crime of physical injuries inflicted in
tumultuous affray must be one or some of
As long as it cannot be determined who killed those involved in the quarrel.
the victim, all of those persons who inflicted
serious physical injuries will be collectively In physical injuries caused in a tumultuous
answerable for the death of that fellow. affray, the conditions are also the same. But
you do not have a crime of physical injuries
The Revised Penal Code sets priorities as resulting from a tumultuous affray if the
to who may be liable for the death or physical injury is only slight. The physical
physical injury in tumultuous affray: injury should be serious or less serious and
resulting from a tumultuous affray. So anyone
(1) The persons who inflicted serious who may have employed violence will answer
physical injury upon the victim; for such serious or less serious physical injury.

(2) If they could not be known, then anyone If the physical injury sustained is only slight,
who may have employed violence on this is considered as inherent in a tumultuous
that person will answer for his death. affray. The offended party cannot complain if
 CRIMINAL LAW II ACJUCO 149

he cannot identify who inflicted the slight 2. A pregnant woman who tried to commit
physical injuries on him. suicide by means of poison but instead
of dying, the fetus in her womb was
Note that in slight physical injuries is inflicted in expelled, is not liable for abortion
the tumultuous affray and the identity of the
offender is established, the provisions of this 3. Assistance to suicide is different from
article will not be observed. Instead, the mercy-killing. Euthanasia/mercy-killing is
offender shall be prosecuted in the ordinary the practice of painlessly putting to
course of law. death a person suffering from some
incurable disease. In this case, the
person does not want to die. A doctor
Article 253 who resorts to euthanasia may be held
GIVING ASSISTANCE TO SUICIDE liable for murder

 Acts punishable: If the person does the killing himself, the

1. Assisting another to commit suicide, penalty is similar to that of homicide, which is
whether the suicide is consummated or reclusion temporal. There can be no qualifying
not circumstance because the determination to die
must come from the victim. This does not
2. Lending his assistance to another to contemplate euthanasia or mercy killing where
commit suicide to the extent of doing the crime is murder, if without consent; if with
the killing himself consent, covered by Article 253.

 Notes: In mercy killing, the victim is not in a position to

Giving assistance to suicide means giving commit suicide. Whoever would heed his
means (arms, poison, etc.) or whatever advice is not really giving assistance to suicide
manner of positive and direct cooperation but doing the killing himself. In giving
(intellectual aid, suggestions regarding the assistance to suicide, the principal actor is the
mode of committing suicide, etc.). person committing the suicide.

1. A person who attempts to commit Both in euthanasia and suicide, the intention to
suicide is not criminally liable the end life comes from the victim himself;
otherwise the article does not apply. The victim
In this crime, the intention must be for the must persistently induce the offender to end his
person who is asking the assistance of another life.
to commit suicide.
4. Penalty is mitigated if suicide is not
If the intention is not to commit suicide, as successful
when he just wanted to have a picture taken of
him to impress upon the world that he is Even if the suicide did not materialize, the
committing suicide because he is not satisfied person giving assistance to suicide is also
with the government, the crime is held to be liable but the penalty shall be one or two
inciting to sedition. degrees lower depending on whether it is
frustrated or attempted suicide.
He becomes a co-conspirator in the crime of
inciting to sedition, but not of giving assistance The following are holdings of the Supreme
to suicide because the assistance must be Court with respect to this crime:
given to one who is really determined to
commit suicide. (1) The crime is frustrated if the offender
gives the assistance by doing the killing
 CRIMINAL LAW II ACJUCO 150

himself as firing upon the head of the 4. Intent to kill is negated by the fact that
victim but who did not die due to the distance between the victim and the
medical assistance. offender is 200 yards

(2) The person attempting to commit 5. A person can be held liable for
suicide is not liable if he survives. The discharge even if the gun was not
accused is liable if he kills the victim, his pointed at the offended party when it
sweetheart, because of a suicide pact. fired for as long as it was initially aimed
at or against the offended party

Article 254 The following are holdings of the Supreme

DISCHARGE OF FIREARMS Court with respect to this crime:

ELEMENTS: (1) If serious physical injuries resulted from

1. that the offender discharges a firearm discharge, the crime committed is the
against or at another person. complex crime of serious physical injury
with illegal discharge of firearm, or if
2. That the offender has no intention to kill less serious physical injury, the complex
that person. crime of less serious physical injury with
illegal discharge of firearm will apply.
 Notes:
(2) Firing a gun at a person even if merely
This crime cannot be committed through to frighten him constitutes illegal
imprudence because it requires that the discharge of firearm.
discharge must be directed at another.
1. The offender must shoot at another with The gun used in the crime must be licensed, or
any firearm without intention of killing the person using the firearm must be
him. If the firearm is not discharged at a authorized to carry the same, otherwise, in
person, the act is not punished under addition to the crime punished under this
this article article, accused may also be held liable for
illegal possession of firearm under Republic
If the firearm is directed at a person and the Act No. 1866 as amended by Republic Act No.
trigger was pressed but did not fire, the crime 8294.
is frustrated discharge of firearm.

If the discharge is not directed at a person, the Article 255

crime may constitute alarm and scandal. INFANTICIDE

2. A discharge towards the house of the ELEMENTS:

victim is not discharge of firearm. On the 1. That a child was killed.
other hand, firing a gun against the
house of the offended party at random, 2. That the deceased child was less than
not knowing in what part of the house three days (72 hours) of age.
the people were, it is only alarm under
art 155. 3. That the accused killed the said child.

3. Usually, the purpose of the offender is Notes:

only to intimidate or frighten the 1. When the offender is the father, mother
offended party or legitimate ascendant, he shall suffer
the penalty prescribed for parricide. If
 CRIMINAL LAW II ACJUCO 151

the offender is any other person, the entitled to a lesser penalty because she
penalty is that for murder. In either case, has no honor to conceal
the proper qualification for the offense is
infanticide Concealment of dishonor is not an element of
infanticide. It merely lowers the penalty. If the
Even if the killer is the mother or the father or child is abandoned without any intent to kill and
the legitimate grandparents, the crime is still death results as a consequence, the crime
Infanticide and not Parricide. The penalty committed is not infanticide but abandonment
however, is that for Parricide. under Article 276.

Illustration: If the purpose of the mother is to conceal her

dishonor, infanticide through imprudence is not
An unmarried woman, A, gave birth to a child, committed because the purpose of concealing
B. To conceal her dishonor, A conspired with C the dishonor is incompatible with the absence
to dispose of the child. C agreed and killed the of malice in culpable felonies.
child B by burying the child somewhere.
4. There is no infanticide when the child
If the child was killed when the age of the child was born dead, or although born alive it
was three days old and above already, the could not sustain an independent life
crime of A is parricide. The fact that the killing when it was killed
was done to conceal her dishonor will not
mitigate the criminal liability anymore because In our study of persons and family relations, we
concealment of dishonor in killing the child is have learned that birth determines personality.
not mitigating in parricide. So fetus becomes a person by the legal fact of
birth. The Civil Code provides that, if the fetus
If the crime committed by A is parricide had an intra-uterine life of less than seven (7)
because the age of the child is three days old months, it will be considered born only if it
or above, the crime of the co-conspirator C is survives 24 hours after the umbilical cord is
murder. It is not parricide because he is not cut. If such fetus is killed within the 24-hour
related to the victim. period, we have to determine if it would have
survived or it would have died nonetheless,
If the child is less than three days old when had it not been killed.
killed, both the mother and the stranger
commits infanticide because infanticide is not A legal problem occurs when a fetus having an
predicated on the relation of the offender to the intra-uterine life of less than 7 months, born
offended party but on the age of the child. In alive, is killed within 24 hours from the time the
such a case, concealment of dishonor as a umbilical cord is cut. This is so because there
motive for the mother to have the child killed is is difficulty of determining whether the crime
mitigating. committed is infanticide or abortion. In such a
situation, the court may avail of expert
2. When infanticide is committed by the testimony in order to help it arrive at a
mother or maternal grandmother in conclusion. So, if it is shown that the infant
order to conceal the dishonor, such fact cannot survive within 24 hours, the crime
is only mitigating committed is abortion; otherwise if it can
survive, the crime would be infanticide.
3. The delinquent mother who claims that
she committed the offense to conceal
the dishonor must be of good reputation. Article 256
Hence, if she is a prostitute, she is not INTENTIONAL ABORTION
 CRIMINAL LAW II ACJUCO 152

ELEMENTS: of abortion suffers death or physical injuries,

1. That there is a pregnant woman. you have a complex crime of murder or
physical injuries and abortion.
2. That violence is exerted, or drugs or
beverages administered, or that the In intentional abortion, the offender must know
accused otherwise acts upon such of the pregnancy because the particular
pregnant woman. criminal intention is to cause an abortion.
Therefore, the offender must have known of
3. That as a result of the use of violence or the pregnancy for otherwise, he would not try
drugs or beverages upon her, or any an abortion.
other act of the accused, the fetus dies,
either in the womb or after having been If the woman turns out not to be pregnant and
expelled therefrom. someone performs an abortion upon her, he is
liable for an impossible crime if the woman
4. That the abortion is intended. suffers no physical injury. If she does, the
crime will be homicide, serious physical
Ortega Notes: injuries, etc.
Acts punished
Under the Article 40 of the Civil Code, birth
1. Using any violence upon the person of determines personality. A person is considered
the pregnant woman; born at the time when the umbilical cord is cut.
He then acquires a personality separate from
2. Acting, but without using violence, the mother.
without the consent of the woman. (By
administering drugs or beverages upon But even though the umbilical cord has been
such pregnant woman without her cut, Article 41 of the Civil Code provides that if
consent.) the fetus had an intra-uterine life of less than
seven months, it must survive at least 24 hours
3. Acting (by administering drugs or after the umbilical cord is cut for it to be
beverages), with the consent of the considered born.
pregnant woman.
Illustration:
Abortion is the violent expulsion of a fetus from
the maternal womb. If the fetus has been A mother delivered an offspring which had an
delivered but it could not subsist by itself, it is intra-uterine life of seven months. Before the
still a fetus and not a person. Thus, if it is killed, umbilical cord is cut, the child was killed.
the crime committed is abortion not infanticide.
If it could be shown that had the umbilical cord
Distinction between infanticide and abortion been cut, that child, if not killed, would have
survived beyond 24 hours, the crime is
It is infanticide if the victim is already a person infanticide because that conceived child is
less that three days old or 72 hours and is already considered born.
viable or capable of living separately from the
mother’s womb. If it could be shown that the child, if not killed,
would not have survived beyond 24 hours, the
It is abortion if the victim is not viable but crime is abortion because what was killed was
remains to be a fetus. a fetus only.

Abortion is not a crime against the woman but In abortion, the concealment of dishonor as a
against the fetus. If mother as a consequence motive of the mother to commit the abortion
 CRIMINAL LAW II ACJUCO 153

upon herself is mitigating. It will also mitigate 4. That as a result of the violence that fetus
the liability of the maternal grandparent of the dies, either in the womb or after having
victim – the mother of the pregnant woman – if been expelled therefrom.
the abortion was done with the consent of the
pregnant woman. Notes:

If the abortion was done by the mother of the Unintentional abortion requires physical
pregnant woman without the consent of the violence inflicted deliberately and voluntarily by
woman herself, even if it was done to conceal a third person upon the person of the pregnant
dishonor, that circumstance will not mitigate woman. Mere intimidation is not enough
her criminal liability. unless the degree of intimidation already
approximates violence.
But if those who performed the abortion are the
parents of the pregnant woman, or either of If the pregnant woman aborted because of
them, and the pregnant woman consented for intimidation, the crime committed is not
the purpose of concealing her dishonor, the unintentional abortion because there is no
penalty is the same as that imposed upon the violence; the crime committed is light threats.
woman who practiced the abortion upon
herself . If the pregnant woman was killed by violence
by her husband, the crime committed is the
Frustrated abortion is committed if the fetus complex crime of parricide with unlawful
that is expelled is viable and, therefore, not abortion.
dead as abortion did not result despite the
employment of adequate and sufficient means While there is no intention on the part of the
to make the pregnant woman abort. If the accused to cause an abortion, nonetheless, the
means are not sufficient or adequate, the crime violence that he employs on the pregnant
would be an impossible crime of abortion. In woman must be intentional. In other words,
consummated abortion, the fetus must be only the abortion is unintended.
dead.
1. Unintentional abortion can also be
One who persuades her sister to abort is a co- committed through negligence
principal, and one who looks for a physician to
make his sweetheart abort is an accomplice. Unintentional abortion may be committed
The physician will be punished under Article through negligence as it is enough that the use
259 of the Revised Penal Code. of violence be voluntary.

Illustration:
Article 257
UNINTENTIONAL ABORTION A quarrel ensued between A, husband, and B,
wife. A became so angry that he struck B, who
ELEMENTS: was then pregnant, with a soft drink bottle on
1. That there is a pregnant woman. the hip. Abortion resulted and B died.

2. That violence is used upon such Take note that while unintentional abortion
pregnant woman without intending an appears to be a crime that should be
abortion. committed with deliberate intent because of the
requirement that the violence employed on the
3. That the violence is intentionally victim must be intentional, nevertheless, if the
exerted. circumstances of the case justifies the
application of the other means of committing a
 CRIMINAL LAW II ACJUCO 154

felony (like culpa), then the same should be Questions & Answers
applied but the penalty will not be the penalty
provided under Article 257. Instead, the
offender shall be subject to the penalty 1. A pregnant woman decided to
prescribed for simple or reckless imprudence commit suicide. She jumped out of a window
under Article 365. of a building but she landed on a passerby.
She did not die but an abortion followed. Is
2. The accused can only be held liable if she liable for unintentional abortion?
he knew that the woman was pregnant
- DEBATABLE No. What is contemplated in unintentional
In US v. Jeffry, 15 Phil. 391, the Supreme abortion is that the force or violence must
Court said that knowledge of pregnancy of the come from another. If it was the woman
offended party is not necessary. In People v. doing the violence upon herself, it must be
Carnaso, decided on April 7, 1964, however, to bring about an abortion, and therefore,
the Supreme Court held that knowledge of the crime will be intentional abortion. In this
pregnancy is required in unintentional abortion. case, where the woman tried to commit
suicide, the act of trying to commit suicide
Criticism: is not a felony under the Revised Penal
Code. The one penalized in suicide is the
Under Article 4, paragraph 1 of the Revised one giving assistance and not the person
Penal Code, any person committing a felony is trying to commit suicide.
criminally liable for all the direct, natural, and
logical consequences of his felonious acts 2. If the abortive drug used in
although it may be different from that which is abortion is a prohibited drug or regulated drug
intended. The act of employing violence or under Presidential Decree No. 6425 (The
physical force upon the woman is already a Dangerous Drugs Act of 1972), as amended,
felony. It is not material if offender knew about what are the crimes committed?
the woman being pregnant or not.
The crimes committed are (1) intentional
If the act of violence is not felonious, that is, act abortion; and (2) violation of the Dangerous
of self-defense, and there is no knowledge of Drugs Act of 1972.
the woman’s pregnancy, there is no liability. If
the act of violence is not felonious, but there is
knowledge of the woman’s pregnancy, the Article 258
offender is liable for unintentional abortion. ABORTION PRACTICED BY THE WOMAN
HERSELF OR BY HER PARENTS
Illustration:
ELEMENTS :
The act of pushing another causing her to fall 1. That there is a pregnant woman who has
is a felonious act and could result in physical suffered an abortion.
injuries. Correspondingly, if not only physical
injuries were sustained but abortion also 2. That the abortion is intended.
resulted, the felonious act of pushing is the
proximate cause of the unintentional abortion. 3. That the abortion is caused by –

3. If there is no intention to cause abortion a. the pregnant woman herself

and neither was violence exerted, arts
256 and 257 does not apply b. any other person, with her
consent, or
 CRIMINAL LAW II ACJUCO 155

c. any of her parents, with her If the abortion is produced by a physician to

consent for the purpose of save the life of the mother, there is no liability.
concealing her dishonor. This is known as a therapeutic abortion. But
abortion without medical necessity to warrant it
Notes: is punishable even with the consent of the
1. Liability of the pregnant woman is woman or her husband.
mitigated if the purpose is to conceal her
dishonor. However, there is no Illustration:
Mitigation for the parents of the
pregnant women even if their purpose is A woman who is pregnant got sick. The doctor
to conceal their daughter’s dishonor administered a medicine which resulted in
Abortion. The crime committed was
2. In infanticide, parents can avail of the unintentional abortion through negligence or
mitigating circumstance of concealing imprudence.
the dishonor of their daughter. This is
not so for art 258
Question & Answer
Article 259
ABORTION PRACTICED BY A PHYSICIAN
OR MIDWIFE AND DISPENSING OF What is the liability of a physician who
ABORTIVES aborts the fetus to save the life of the mother?

ELEMENTS: None. This is a case of therapeutic

1. That there is a pregnant woman who has abortion which is done out of a state of
suffered an abortion. necessity. Therefore, the requisites under
Article 11, paragraph 4, of the Revised Penal
2. That the abortion is intended. Code must be present. There must be no
other practical or less harmful means of saving
3. That the offender, who must be a the life of the mother to make the killing
physician or midwife, causes or assists justified.
in causing the abortion.

4. That said physician or midwife takes Article 260

advantage of his or her scientific RESPONSIBILITY OF PARTICIPANTS IN A
knowledge or skill. DUEL

Notes: Acts punished:

1. It is not necessary that the pharmacist 1. Killing one’s adversary in a duel
knew that the abortive would be used to
cause abortion. What is punished is the 2. Inflicting upon the adversary serious
act of dispensing an abortive without the physical injuries
proper prescription. It is not necessary
that the abortive be actually used 3. Making a combat although no
physical injuries have been inflicted
2. If the pharmacist knew that the abortive
would be used to cause abortion and Persons liable:
abortion results, he is liable as an 1. Principals – person who killed or
accomplice inflicted physical injuries upon his
adversary, or both combatants in any other
cases
 CRIMINAL LAW II ACJUCO 156

2. Accomplices – as seconds 3. Scoffing at or decrying another

publicly for having refused to accept a
The person who killed or injured his adversary. challenge to fight a duel
If both survive, both will be liable for the crime
of duel as principals by direct participation. The Persons liable:
seconds will be held liable as accomplices. 1. Challenger

Notes: 2. Instigators
1. Duel: a formal or regular combat
previously concerted between 2 parties in If the challenge is only to fight, without the
the presence of 2 or more seconds of lawful challenger having in mind a formal combat to
age on each side, who make the selection be agreed upon with the assistance of seconds
of arms and fix all the other conditions of as contemplated under the law, the crime
the fight committed will only be grave or light threat as
the case may be.
2. If death results, the penalty is the same
as that for homicide Illustration:

While the agreement is to fight to the death, If one challenges another to a duel by shouting
the law will disregard the “intent to kill,” if only “Come down, Olympia, let us measure your
physical injuries is inflicted. The crime will not prowess. We will see whose intestines will
be classified as attempted or frustrated come out. You are a coward if you do not come
homicide. down”, the crime of challenging to a duel is not
committed. What is committed is the crime of
If the accused and the deceased, after a verbal light threats under Article 285, paragraph 1 of
heated argument in a bar, left the place at the the Revised Penal Code.
same time and pursuant to their agreement,
went to the plaza to fight each other to death PHYSICAL INJURIES
with knives which they bought on the way, the
facts do not constitute the crime of dueling Article 262
since there were no seconds who fixed the MUTILATION
conditions of the fight in a more or less formal
manner. If one was killed, the crime committed Kinds of Mutilation
would be Homicide.
1. Intentionally mutilating another by
There is no such crime nowadays because depriving him, totally or partially, of
people hit each other even without entering some essential organ for reproduction
into any pre-conceived agreement. This is an
obsolete provision. 2. Intentionally making another mutilation,
i.e. lopping, clipping off any part of the
body of the offended party, other than
Article 261 the essential organ for reproduction, to
CHALLENGING TO A DUEL deprive him of that part of the body

Acts punishable: Elements:

1. Challenging another to a duel 1. There be a castration i.e. mutilation
of organs necessary for generation
2. Inciting another to give or accept a
challenge to a duel
 CRIMINAL LAW II ACJUCO 157

2. Mutilation is caused purposely and hold of the edge of the blade of his bolo and
deliberately wounded himself. It was held that since the
accused did not wound, beat or assault the
Notes: offended party, he can not be guilty of serious
physical injuries.
Mutilation is the lopping or clipping off of some
part of the body. What are serious physical injuries:

The intent to deliberately cut off the particular 1. Injured person becomes insane,
part of the body that was removed from the imbecile, impotent or blind
offended party must be established. If there is
no intent to deprive victim of particular part of 2. Injured person –
body, the crime is only serious physical injury.
a. loses the use of speech or the
The common mistake is to associate this with power to hear or to smell, loses
the reproductive organs only. Mutilation an eye, a hand, foot, arm or leg
includes any part of the human body that is not
susceptible to grow again. b. loses the use of any such member

If what was cut off was a reproductive organ, c. becomes incapacitated for the
the penalty is much higher than that for work in which he had been
homicide. habitually engaged

This cannot be committed through criminal 3. Injured person –

negligence.
a. becomes deformed
1. In the first kind of mutilation, the
castration must be made purposely. b. loses any other member of his
Otherwise, it will be considered as body
mutilation of the second kind
c. loses the use thereof
2. Mayhem: refers to any other intentional
mutilation d. becomes ill or incapacitated for
the performance of the work in
which he had been habitually
Article 263 engaged in for more than 90 days
SERIOUS PHYSICAL INJURIES
4. Injured person becomes ill or
How Committed incapacitated for labor for more than
1. Wounding 30 days (but not more than 90 days)

2. Beating Notes:

3. Assaulting The crime of physical injuries is a crime of

result because under our laws the crime of
4. Administering injurious substances physical injuries is based on the gravity of the
injury sustained. So this crime is always
In one case, the accused, while conversing consummated.
with the offended party, drew the latter’s bolo
from its scabbard. The offended party caught
 CRIMINAL LAW II ACJUCO 158

The reason why there is no attempted or 10. Deformity by loss of teeth refers to injury
frustrated physical injuries is because the which cannot be impaired by the action
crime of physical injuries is determined on the of the nature
gravity of the injury. As long as the injury is not
there, there can be no attempted or frustrated 11. Loss of both outer ears constitutes
stage thereof. deformity and also loss of the power to
hear. Meanwhile, loss of the lobule of
1. Serious physical injuries may be the ear is only a deformity
committed through reckless imprudence
or simple imprudence 12. Loss of the index and middle fingers is
either a deformity or loss of a member,
2. There must be no intent to kill not a principal one of his body or use of
the same
3. Impotent should include inability to
copulate and sterility 13. Loss of the power to hear in the right ear
is considered as merely loss of use of
4. Blindness requires lost of vision in both some other part of the body
eyes. Mere weakness in vision is not
contemplated 14. If the injury would require medical
attendance for more than 30 days, the
5. Loss of power to hear must involve illness of the offended party may be
both ears. Otherwise, it will be considered as lasting more than 30
considered as serious physical injuries days. The fact that there was medical
under par 3 attendance for that period of time shows
that the injuries were not cured for that
6. Loss of use of hand or incapacity of length of time
usual work in par 2 must be permanent 15. Under par 4, all that is required is illness
or incapacity, not medical attendance
7. Par 2 refers to principal members of the
body. Par 3 on the other hand, covers 16. In determining incapacity, the injured
any other member which is not a party must have an avocation at the
principal part of the body. In this respect, time of the injury. Work: includes studies
a front tooth is considered as a member or preparation for a profession
of the body, other than a principal
member 17. When the category of the offense of
serious physical injuries depends on the
8. Deformity: means physical ugliness, period of the illness or incapacity for
permanent and definite abnormality. Not labor, there must be evidence of the
curable by natural means or by nature. It length of that period. Otherwise, the
must be conspicuous and visible. Thus, offense will only be considered as slight
if the scar is usually covered by a dress, physical injuries
it would not be conspicuous and visible
18. There is no incapacity if the injured party
9. The loss of 3 incisors is a visible could still engage in his work although
deformity. Loss of one incisor is not. less effectively than before
However, loss of one tooth which
impaired appearance is a deformity 19. Serious physical injuries is qualified
when the crime is committed against the
same persons enumerated in the article
on parricide or when it is attended by
 CRIMINAL LAW II ACJUCO 159

any of the circumstances defining the only consider the period of incapacity
crime of murder. However, serious from work.
physical injuries resulting from
excessive chastisement by parents is (3) When the injury created a deformity
not qualified serious physical injuries upon the offended party, you disregard
the healing duration or the period of
Ortega Notes: medical treatment involved. At once, it
is considered serious physical injuries.
Classification of physical injuries:
So even though the deformity may not
(1) Between slight physical injuries and less have incapacitated the offended party
serious physical injuries, you have a from work, or even though the medical
duration of one to nine days if slight treatment did not go beyond nine days,
physical injuries; or 10 days to 20 days if that deformity will bring about the crime
less serious physical injuries. Consider of serious physical injuries.
the duration of healing and treatment.
Deformity requires the concurrence of
The significant part here is between the following conditions:
slight physical injuries and less serious
physical injuries. You will consider not (1) The injury must produce ugliness;
only the healing duration of the injury
but also the medical attendance (2) It must be visible;
required to treat the injury. So the
healing duration may be one to nine (3) The ugliness will not disappear
days, but if the medical treatment through natural healing process.
continues beyond nine days, the
physical injuries would already qualify
as less serious physical injuries. The
medical treatment may have lasted for
nine days, but if the offended party is Illustration:
still incapacitated for labor beyond nine
days, the physical injuries are already Loss of molar tooth – This is not
considered less serious physical deformity as it is not visible.
injuries.
Loss of permanent front tooth – This is
(2) Between less serious physical injuries deformity as it is visible and permanent.
and serious physical injuries, you do not Loss of milk front tooth – This is not
consider the period of medical deformity as it is visible but will be
treatment. You only consider the period naturally replaced.
when the offended party is rendered
incapacitated for labor. Question & Answer
If the offended party is incapacitated to
work for less than 30 days, even though The offender threw acid on the face of
the treatment continued beyond 30 the offended party. Were it not for timely
days, the physical injuries are only medical attention, a deformity would have been
considered less serious because for produced on the face of the victim. After the
purposes of classifying the physical plastic surgery, the offended party was more
injuries as serious, you do not consider handsome than before the injury. What crime
the period of medical treatment. You
 CRIMINAL LAW II ACJUCO 160

was committed? In what stage was it These do not include any physical, mental,
committed? psychological testing and training procedure
and practice to determine and enhance the
The crime is serious physical injuries physical and psychological fitness of the
because the problem itself states that the prospective regular members of the below.
injury would have produced a deformity.
The fact that the plastic surgery removed Organizations include any club or AFP, PNP,
the deformity is immaterial because in law PMA or officer or cadet corps of the CMT or
what is considered is not the artificial CAT.
treatment but the natural healing process.
Section 2 requires a written notice to school
In a case decided by the Supreme Court, authorities from the head of the organization
accused was charged with serious physical seven days prior to the rites and should not
injuries because the injuries produced a exceed three days in duration.
scar. He was convicted under Article 263
(4). He appealed because, in the course of Section 3 requires supervision by head of the
the trial, the scar disappeared. It was held school or the organization of the rites.
that accused can not be convicted of
serious physical injuries. He is liable only Section 4 qualifies the crime if rape, sodomy or
for slight physical injuries because the mutilation results therefrom, if the person
victim was not incapacitated, and there was becomes insane, an imbecile, or impotent or
no evidence that the medical treatment blind because of such, if the person loses the
lasted for more than nine days. use of speech or the power to hear or smell or
an eye, a foot, an arm or a leg, or the use of
Serious physical injuries is punished with any such member or any of the serious
higher penalties in the following physical injuries or the less serious physical
cases: injuries. Also if the victim is below 12, or
becomes incapacitated for the work he
(1) If it is committed against any of the habitually engages in for 30, 10, 1-9 days.
persons referred to in the crime of
parricide under Article 246; It holds the parents, school authorities who
consented or who had actual knowledge if they
(2) If any of the circumstances qualifying did nothing to prevent it, officers and members
murder attended its commission. who planned, knowingly cooperated or were
present, present alumni of the organization,
Thus, a father who inflicts serious physical owner of the place where such occurred liable.
injuries upon his son will be liable for qualified
serious physical injuries. Makes presence a prima facie presumption of
guilt for such.

Republic Act No. 8049 (The Anti-Hazing

Law) Article 264
ADMINISTERING INJURIOUS SUBSTANCES
Hazing -- This is any initiation rite or practice OR BEVERAGES
which is a prerequisite for admission into
membership in a fraternity or sorority or any ELEMENTS:
organization which places the neophyte or
applicant in some embarrassing or humiliating 1. That the offender inflicted upon
situations or otherwise subjecting him to another person any serious physical
physical or psychological suffering of injury. injury
 CRIMINAL LAW II ACJUCO 161

a. when there is manifest intent to insult

2. That it was done knowingly or offend the injured person
administering to him any injurious
substances or beverages or by b. when there are circumstances
taking advantage of his weakness of adding ignominy to the offense
mind of credulity
c. when the victim is either the
3. He had no intent to kill offender’s parents, ascendants,
guardians, curators or teachers
Notes:
d. when the victim is a person of rank
The article under consideration does not deal or person in authority, provided the
with a crime. It refers to means of committing crime is not direct assault
serious physical injuries.
2. It falls under this article even if there
1. It is frustrated murder when there is was no incapacity but the medical
intent to kill treatment was for 13 days

2. Administering means introducing into In this article, the offended party is

the body the substance, thus throwing incapacitated from work for ten (10) days or
of the acid in the face is not more but not more than thirty (30) days. If the
contemplated injury causes the illness of the victim, the
healing duration must be more than nine (9)
days but not more than thirty (30) days.

Article 265 is an exception to Article 48 in

relation to complex crimes as the latter only
takes place in cases where the Revised Penal
Code has no specific provision penalizing the
same with a definite, specific penalty. Hence,
Article 265 there is no complex crime of slander by deed
LESS SERIOUS PHYSICAL INJURIES with less serious physical injuries but only less
serious physical injuries if the act which was
ELEMENTS: committed produced the less serious physical
injuries with the manifest intent to insult or
1. That the offended party is offend the offended party, or under
incapacitated for labor for 10 days or circumstances adding ignominy to the offense.
more (but not more than 30 days), or
needs medical attendance for the
same period of time Article 266
SLIGHT PHYSICAL INJURIES
2. That the physical injuries must not
be those described in the preceding 3 Kinds:
articles
1. That which incapacitated the
Notes: offended party for labor from 1-9
1. Circumstances qualifying the days or required medical attendance
offense: during the same period
 CRIMINAL LAW II ACJUCO 162

2. That which did not prevent the The provisions of Republic Act No. 7160
offended party from engaging in his modified the provisions of the Revised Penal
habitual work or which did not Code in so far as the victim of the felonies
require medical attendance (ex. referred to is under 12 years of age. The clear
Black-eye) intention is to punish the said crimes with a
higher penalty when the victim is a child of
3. Ill-treatment of another by deed tender age. Incidentally, the reference to
without causing any injury (ex. Article 249 of the Code which defines and
slapping but without causing penalizes the crime of homicide were the victim
dishonor) is under 12 years old is an error. Killing a child
under 12 is murder, not homicide, because the
This involves even ill-treatment where there is victim is under no position to defend himself as
no sign of injury requiring medical treatment. held in the case of People v. Ganohon, 196
SCRA 431.
Slapping the offended party is a form of ill-
treatment which is a form of slight physical For murder, the penalty provided by the Code,
injuries. as amended by Republic Act No. 7659, is
reclusion perpetua to death – higher than what
But if the slapping is done to cast dishonor Republic Act no. 7610 provides. Accordingly,
upon the person slapped, the crime is slander insofar as the crime is murder, Article 248 of
by deed. If the slapping was done without the the Code, as amended, shall govern even if the
intention of casting dishonor, or to humiliate or victim was under 12 years of age. It is only in
embarrass the offended party out of a quarrel respect of the crimes of intentional mutilation in
or anger, the crime is still ill-treatment or slight paragraph 2 of Article 262 and of serious
physical injuries. physical injuries in paragraph 1 of Article 263 of
the Code that the quoted provision of Republic
The crime is slight physical injury if there is no Act No. 7160 may be applied for the higher
proof as to the period of the offended party’s penalty when the victim is under 12 years old.
incapacity for labor or of the required medical
attendance.

Republic Act No. 7610 (Special Protection RAPE

of Children against Child Abuse,
Exploitation and Discrimination Act), in ART 266-A
relation to murder, mutilation or injuries to a RAPE
child The Anti-Rape Law of 1997 (RA 8353) now
classified the crime of rape as Crime
The last paragraph of Article VI of Republic Act Against Persons incorporated into Title 8 of
No. 7610, provides: the RPC to be known as Chapter 3

“For purposes of this Act, the penalty for the ELEMENTS:

commission of acts punishable under Articles Rape is committed
248, 249, 262 (2) and 263 (1) of Act No 3815, 1. By a man who have carnal
as amended of the Revised Penal Code for the knowledge of a woman under any of
crimes of murder, homicide, other intentional the following circumstances:
mutilation, and serious physical injuries,
respectively, shall be reclusion perpetua when a. through force, threat or
the victim is under twelve years of age.” intimidation
 CRIMINAL LAW II ACJUCO 163

b. when the offended party is

deprived of reason or otherwise c. under the custody of the police or
unconscious military authorities or any law
enforcement or penal institution
c. by means of fraudulent
machination or grave abuse of d. committed in full view of the spouse,
authority parent or any of the children or other
relatives within the 3rd degree of
d. when the offended party is under consanguinity
12 years of age or is demented,
even though none of the e. victim is a religious engaged in
circumstances mentioned above legitimate religious vocation or calling
be present and is personally known to be such by
the offender before or at the time of the
2. By any person who, under any of the commission of the crime
circumstances mentioned in par 1
hereof, shall commit an act of sexual f. a child below 7 years old
assault by inserting
g. offender knows he is afflicted with HIV
a. his penis into another person’s or AIDS or any other sexually
mouth or anal orifice, or transmissible disease and the virus is
transmitted to the victim
b. any instrument or object, into the h. offender; member of the AFP, or para-
genital or anal orifice of another military units thereof, or the PNP, or any
person law enforcement agency or penal
institution, when the offender took
Rape committed under par 1 is punishable advantage of his position to facilitate the
by: commission of the crime
1. reclusion perpetua
i. victim suffered permanent physical
2. reclusion perpetua to DEATH when mutilation or disability
a. victim became insane by reason or on
the occasion of rape j. the offender knew of the pregnancy of
the offended party at the time of the
b. the rape is attempted and a homicide is commission of the crime; and
committed by reason or on the occasion
thereof k. when the offender knew of the mental
disability, emotional disorder and/or
3. DEATH when physical handicap or the offended party
a. homicide is committed at the time of the commission of the
crime
b. victim under 18 years and offender is:
i. parent Rape committed under par 2 is punishable
ii. ascendant by:
iii. step-parent 1. prision mayor
iv. guardian
v. relative by consanguinity or 2. prision mayor to reclusion temporal
affinity with the 3rd civil degree or a. use of deadly weapon or
vi. common law spouse of parent of
victim b. by two or more persons
 CRIMINAL LAW II ACJUCO 164

grazing of the surface of the female organ or

3. reclusion temporal – when the victim has touching the mons pubis of the pudendum is
become insane not sufficient to constitute rape. ( Pp vs.
Campuhan)
4. reclusion temporal to reclusion pepetua
– rape is attempted and homicide is Classification of rape
committed
(1) Traditional concept under Article 335
5. reclusion perpetua – homicide is – carnal knowledge with a woman
committed by reason or on occasion of rape against her will. The offended party is
always a woman and the offender is
6. reclusion temporal – committed with any always a man.
of the 10 aggravating circumstances (2) Sexual assault - committed with an
mentioned above instrument or an object or use of the
penis with penetration of mouth or anal
Notes: orifice. The offended party or the
1. Dividing age in rape: offender can either be man or woman,
a. less than 7 yrs old, mandatory death that is, if a woman or a man uses an
instrument on anal orifice of male, she
b. less than 12 yrs old, statutory rape or he can be liable for rape.

c. less than 18 yrs old and there is Since rape is not a private crime anymore, it
relationship (e.g. parent etc); mandatory can be prosecuted even if the woman does not
death file a complaint.

Because of this amendment which reclassified If carnal knowledge was made possible
rape as a crime against persons, an impossible because of fraudulent machinations and grave
crime may now be committed in case of rape; abuse of authority, the crime is rape. This
that is, if there is inherent impossibility of its absorbs the crime of qualified and simple
accomplishment or on account of the seduction when no force or violence was used,
employment of inadequate or ineffectual but the offender abused his authority to rape
means. the victim.

The case of People vs. Orita (G.R. No. 88724, Under Article 266-C, the offended woman may
April 3, 1990), laid a new doctrine in Philippine pardon the offender through a subsequent
penal law insofar as the crime of rape is valid marriage, the effect of which would be the
concerned, as it finally did away with frustrated extinction of the offender’s liability. Similarly,
rape and allowed only attempted rape and the legal husband may be pardoned by
consummated rape to remain in our statute forgiveness of the wife provided that the
books. marriage is not void ab initio. Obviously, under
the new law, the husband may be liable for
The act of “touching” should be understood as rape if his wife does not want to have sex with
inherently part of the entry of the penis into the him. It is enough that there is indication of any
labia of the female organ and not the mere amount of resistance as to make it rape.
touching alone of the mons pubis or the
pudendum. Jurisprudence dictates that the Incestuous rape was coined in Supreme
labia majora (or he outer lips of the female Court decisions. It refers to rape committed by
organ) must be entered for rape to be an ascendant of the offended woman. In such
consummated, and not merely for the penis to cases, the force and intimidation need not be
stroke the surface of the female organ. Thus, of such nature as would be required in rape
 CRIMINAL LAW II ACJUCO 165

cases had the accused been a stranger. Sexual intercourse with an insane, deranged or
Conversely, the Supreme Court expected that mentally deficient, feeble-minded or idiotic
if the offender is not known to the woman, it is woman is Rape pure and simple. The
necessary that there be evidence of affirmative deprivation of reason contemplated by law
resistance put up by the offended woman. need not be complete; mental abnormality or
Mere “no, no” is not enough if the offender is a deficiency is sufficient.
stranger, although if the rape is incestuous, this
is enough. Where the victim is over 12 years old, it must
be shown that the carnal knowledge with her
The new rape law also requires that there be a was obtained against her will. It is necessary
physical overt act manifesting resistance, if the that there be evidence of some resistance put
offended party was in a situation where he or up by the offended woman. It is not, however,
she is incapable of giving valid consent, this is necessary that the offended party should exert
admissible in evidence to show that carnal all her efforts to prevent the carnal intercourse.
knowledge was against his or her will. It is enough that from her resistance, it would
appear that the carnal intercourse is against
When the victim is below 12 years old, mere her will.
sexual intercourse with her is already rape.
Even if it was she who wanted the sexual Mere initial resistance, which does not indicate
intercourse, the crime will be rape. This is refusal on the part of the offended party to the
referred to as statutory rape. sexual intercourse, will not be enough to bring
about the crime of rape.
If the victim however is exactly twelve (12) Note that it has been held that in the crime of
years old (she was raped on her birthday) or rape, conviction does not require medico-legal
more, and there is consent, there is no rape. finding of any penetration on the part of the
However, Republic Act No. 7610, Sec. 5 (b) woman. A medico-legal certificate is not
provides that: Even if the victim is over twelve necessary or indispensable to convict the
(12) year old and the carnal act was with her accused of the crime of rape.
consent as long as she falls under the
classification of a child exploited in prostitution It has also been held that although the
and other sexual abuse, the crime is rape. offended woman who is the victim of the rape
failed to adduce evidence regarding the
In other cases, there must be force, damages to her by reason of the rape, the
intimidation, or violence proven to have been court may take judicial notice that there is such
exerted to bring about carnal knowledge or the damage in crimes against chastity. The
woman must have been deprived of reason or standard amount given now is P 50,000.00,
otherwise unconscious. with or without evidence of any moral damage.

It is not necessary that the force or intimidation An accused may be convicted of rape on the
employed be so great or of such character as sole testimony of the offended woman. It does
could not be resisted – it is only necessary that not require that testimony be corroborated
it be sufficient to consummate the purpose before a conviction may stand. This is
which the accused had in mind. (People vs. particularly true if the commission of the rape is
Canada, 253 SCRA 277). such that the narration of the offended woman
would lead to no other conclusion except that
Carnal knowledge with a woman who is asleep the rape was committed.
constitutes Rape since she was either deprived
of reason or otherwise unconscious at that Illustration:
time. (People vs. Caballero, 61 Phil. 900). Daughter accuses her own father of having
raped her.
 CRIMINAL LAW II ACJUCO 166

under this Section. So also, a prostitute who

Allegation of several accused that the woman willingly had sexual congress with a man upon
consented to their sexual intercourse with her the latter’s assurance that she would be paid
is a proposition which is revolting to reason handsomely, may be guilty of Rape if later on
that a woman would allow more than one man he refuses to pay the said amount.
to have sexual intercourse with her in the
presence of the others. A person in authority who maneuvered a
scheme where a woman landed in jail, and
It has also been ruled that rape can be who upon promise of being released after
committed in a standing position because having sex with the officer, willingly consented
complete penetration is not necessary. The to the sexual act, may also be found guilty of
slightest penetration – contact with the labia – Rape under this new section.
will consummate the rape.
In Rape cases, court must always be
On the other hand, as long as there is an intent guided by the following principles:
to effect sexual cohesion, although
unsuccessful, the crime becomes attempted 1. An accusation of rape can be made with
rape. However, if that intention is not proven, facility; it is difficult to prove, but more
the offender can only be convicted of acts of difficult for the person accused, though
lasciviousness. innocent, to disprove;

The main distinction between the crime of 2. In view of the intrinsic nature of the crime
attempted rape and acts of lasciviousness is where only two persons are usually
the intent to lie with the offended woman. involved, the testimony of the complainant
must be scrutinized with extreme caution;
In a case where the accused jumped upon a and
woman and threw her to the ground, although
the accused raised her skirts, the accused did 3. The evidence for the prosecution must
not make any effort to remove her underwear. stand or fall on its own merits, and cannot
Instead, he removed his own underwear and be allowed to draw strength from the
placed himself on top of the woman and weakness of the evidence for the defense.
started performing sexual movements. (People vs. Ricafort)
Thereafter, when he was finished, he stood up
and left. The crime committed is only acts of
lasciviousness and not attempted rape. The
fact that he did not remove the underwear of
the victim indicates that he does not have a
real intention to effect a penetration. It was
only to satisfy a lewd design.

The new law, R.A. 8353, added new

circumstance – that is, when carnal knowledge
was had by means of fraudulent machinations
or grave abuse of authority. It would seem that
if a woman of majority age had sexual
intercourse with a man through the latter’s
scheme of pretending to marry her which is the
condition upon which the woman agreed to
have sex with him, manipulating a sham
marriage, the man would be guilty of Rape