TITLE ONE * Success is not important.

What matters is the

CRIMES AGAINST NATIONAL SECURITY actual assembly of men and the execution of
treasonable design by force.
Crimes against national security
1. Treason (Art. 114);  Ways of proving treason:
2. Conspiracy and proposal to commit
treason (Art. 115); a. 2 witnesses testifying to same overt
3. Misprision of treason (Art. 116); and act
4. Espionage (Art. 117).
> The testimonies must refer to the same act,
Crimes against the law of nations place and moment of time. Treason cannot be
1. Inciting to war or giving motives for proved by circumstantial evidence or by
reprisals (Art. 118); extrajudicial confession.
2. Violation of neutrality (Art. 119);
3. Corresponding with hostile country (Art. Example: X saw arms landed in La Union
120); and loaded into a motor vehicle. At this
4. Flight to enemy's country (Art. 121); and stage, not sufficient to convict yet. Y later
5. Piracy in general and mutiny on the high saw the arms unloaded in a warehouse.
seas (Art. 122). Will X + Y be sufficient witnesses to
convict? Answer: NO. Because the law
The crimes under this title can be prosecuted requires that 2 witnesses see the SAME
even if the criminal act or acts were committed OVERT ACT.
outside the Philippine territorial jurisdiction.
However, prosecution can proceed only if the b. Confession of the accused in open
offender is within Philippine territory or brought court.
to the Philippines pursuant to an extradition Arraignment, pre-trial, trial – OK.
treaty. This is one of the instances where the
Revised Penal Code may be given extra-territorial > If he has pleaded NOT guilty already
application under Article 2 (5) thereof. In the during arraignment, he can still confess
case of crimes against the law of nations, the in open court by stating the particular
offender can be prosecuted whenever he may be acts constituting treason.
found because the crimes are regarded as
committed against humanity in general. > During trial, simply saying “I’m guilty”
is not enough.
Article 114
TREASON > Withdrawing plea of “not guilty” during
arraignment not necessary
ELEMENTS:
a. That the offender owes allegiance to > If during arraignment he pleads guilty,
the Government of the Philippines court will ask if the accused understands
is plea. Submission of affidavit during
b. That there is a war in which the trial, even if assisted by counsel is not
Philippines is involved enough.

c. That the offender either –  TREASON: breach of allegiance to the

government, committed by a person who
1) Levies war against the government, owes allegiance to it. Allegiance: obligation of
1. breech of allegiance fidelity and obedience. It is permanent or
2. actual assembling of men temporary depending on whether the person
3. for the purpose of executing a is a citizen or an alien.
treasonable design
 Evident premeditation, superior strength and
2) Adheres to the enemies, giving them treachery are circumstances inherent in
aid and comfort treason, and are, therefore, not aggravating.
1. breech of allegiance
2. adherence  Treason cannot be committed in times of
3. giving aid or comfort to the enemy peace, only in times of war – actual
hostilities. But no need for declaration of war
Requirements of levying war
1) Actual assembling of men;  Not Treasonous:
2) To execute a treasonable design by force; a. Acceptance of public office and
3) Intent is to deliver the country in whole or in discharge of official duties under the
part to the enemy; and enemy does not constitute per se the felony
4) Collaboration with foreign enemy or some of treason (exception: when it is policy
foreign sovereign determining)
 b. Serving in a puppet government
(ministerial functions) and in order to serve  Treason is a CONTINUING CRIME. Even after
the populace is NOT treasonous. But it is the war, offender can be prosecuted.
treason if: a) there is discretion involved; b)
inflicts harm on Filipinos; c) it is * Treason is a continuing offense. It can be
disadvantageous to them. committed by a single act or by a series of acts. It
can be committed in one single time or at
c. Purpose of offender: to deliver the different times and only one criminal intent. In
Philippines to enemy country; if merely to construing the provisions relating to the
change officials – not treason commission of several acts, the same must be
done in pursuance or furtherance of the act of
 On Citizenship treason.
> Filipino citizens can commit treason
outside the Philippines. But that of an * No matter how many acts of treason are
alien must be committed in the committed by the offender, he will be liable for
Philippines. only one crime of treason.

> Only Filipino citizens or permanent  If you convict a person for treason by reason
resident aliens can be held liable of irresistible force or uncontrollable fear, you
may use Art.12. No treason through
> ALIEN: with permanent resident status negligence
from the BID – it is neither the length of
stay in the Philippines nor the marriage * In the imposition of the penalty for the crime of
with a Filipino that matters. treason, the court may disregard the presence of
mitigating and aggravating circumstances. It may
 Actual hostilities may determine the date of the consider only the number, nature and gravity of
commencement of war the acts established during the trial. The
imposition of the penalty rests largely on the
 No such thing as attempted treason; mere exercise of judicial discretion.
attempt consummates the crime
Defenses that may be availed of by the
 GIVING AID OR COMFORT – material element, accused.
enhances forces of the enemy country.
1. Duress or uncontrollable fear of immediate
> Acts which strengthen or tend to strengthen death; and
the enemy in the conduct of war against the
traitor’s country or that which weaken and tend 2. Lawful obedience to a de facto government.
to weaken the power of the same.
 When killings and other common crimes are
Example: Financing arms procurement of charged as overt act of treason, they cannot
enemy country. But giving of shelter is not be regarded as (1) separate crimes or (2) as
necessarily “giving aid and comfort.” complex with treason.

 Adherence and giving aid or comfort must * In the act of levying war or giving aid or
concur together. comfort to the enemy, murder, robbery, arson or
falsification may be committed by the offender.
 ADHERENCE: when a citizen intellectually BUT the offender does not commit the crime of
or emotionally favors the enemy and harbors treason complexed with common crimes because
convictions disloyal to his country’s policy. such crimes are inherent to treason, being an
But membership in the police force during indispensable element of the same.
the occupation is NOT treason.
Example: Giving information to, or Treason distinguished from Rebellion.
commandeering foodstuffs for the enemy.
The manner in which both crimes are committed in
 Adherence may be proved by: (1) one the same. In treason however, the purpose of the
witness; (2) from the nature of the act itself; offender is to deliver the government to the
(3) from the circumstances surrounding the enemy country or to a foreign power. In
act. rebellion, the purpose of the rebels is to
* When this adherence or sympathies are substitute the government with their own form of
converted into aid and comfort, only then they government. No foreign power is involved.
take material form. This material form is now
what is made punishable. It is usually manifested Treason distinguished from Sedition.
by the offender in giving information,
commandeering foodstuffs, serving as spy and In treason, the offender repudiates his allegiance
supplying the enemy with war materials. to the government by means of force or
intimidation. He does not recognize the supreme
authority of the State. He violates his allegiance * While in treason, even aliens can commit said
by fighting the forces of the duly constituted crime because of the amendment to the article, no
authorities. such amendment was made in misprision of
treason. Misprision of treason is a crime that may
In sedition, the offender disagrees with certain be committed only by citizens of the Philippines.
policies of the State and seeks to disturb public
peace by raising a commotion or public uprising.  Offender is punished as an accessory to the
crime of treason

Article 115 * Take note that the offender is a principal to the

CONSPIRACY TO COMMIT TREASON crime of misprision of treason, yet he is penalized
only as an accessory. In the imposition of the
 ELEMENTS: penalty, the court is not bound by the provisions
a. In time of war of Article 63 and 64, referring to indivisible
penalties. In the presence of mitigating and
b. 2 or more persons come to an agreement aggravating circumstances, the offender is
to punished two degrees lower than the penalty for
1. levy war against the government, or the crime of treason.

2. adhere to the enemies and to give them aid * The criminal liability arises if the treasonous
or comfort, activity was still at the conspiratorial stage

c. They decide to commit it  This crime does not apply if the crime of
treason is already committed
 ELEMENTS OF PROPOSAL TO COMMIT
TREASON  Crime of omission
a. In time of war
* This is a felony by omission although committed
b. A person who has decided to levy war with dolo, not with culpa.
against the government, or to adhere to
the enemies and to give them aid or  “To report within a reasonable time” –
comfort, proposes its execution to some depends on time, place and circumstance –
other person/s. the RPC did not fix time.

 Mere agreement and decisions to commit  RPC states 4 individuals, what if you report
treason is punishable to some other high-ranking government
official? Ex. PNP Director? Judge Pimentel
 Mere proposal even without acceptance is says any gov’t official of the DILG is OK.
punishable too. If the other accepts, it is
already conspiracy. * Whether the conspirators are parents or children,
and the ones who learn the conspiracy is a parent
* While Treason as a crime should be established or child, they are required to report the same. The
by the two-witness rule, the same is not observed reason is that although blood is thicker than
when the crime committed conspiracy to commit water so to speak, when it comes to security of
treason or when it is only a proposal to commit the state, blood relationship is always
treason. subservient to national security. Article 20 does
not apply here because the persons found liable
Article 116 for this crime are not considered accessories; they
MISPRISION OF TREASON are treated as principals.
Article 117
 ELEMENTS: Espionage by entering, without authority
a. That the offender must be owing therefor, warship, fort, or naval or military
allegiance to the government, and establishments or reservation to obtain any
not a foreigner information, plans, photographs or other data
of a confidential nature relative to the defense
b. That he has knowledge of any of the Philippines.
conspiracy (to commit treason)
against the government  ELEMENTS:
a. 1. That the offender enters any of
c. That he conceals or does not the places mentioned therein
disclose and make known the same 2
as soon as possible to the governor 3 2. That he has no authority
or fiscal of the province or the therefore;
mayor or fiscal of the city in which
he resides b. That his purpose is to obtain
information, plans, photographs or
 other data of a confidential nature 2. Unlawful disclosing of information
relative to the defense of the affecting national defense;
Philippines 3. Disloyal acts or words in times of peace;
4. Disloyal acts or words in times of war;
* Under the first mode of committing espionage, 5. Conspiracy to violate preceding sections;
the offender must have the intention to obtain 6. Harboring or concealing violators of law.
information relative to the defense of the PHIL. It and
is sufficient that he entered the prohibited 7. Photographing vital military information
premises. Here, the offender is any private
individual, whether an alien or a citizen of the CRIMES AGAINST LAWS OF NATIONS
Philippines, or a public officer.
* In crimes against the law of nations, the
Espionage by disclosing to the representative offenders can be prosecuted anywhere in the
of a foreign nation the contents of the world because these crimes are considered as
articles, data, or information referred to in against humanity in general, like piracy and
paragraph 1 of Article 117, which he had in mutiny. Crimes against national security can be
his possession by reason of the public office tried only in the Philippines, as there is a need to
holds bring the offender here before he can be made to
suffer the consequences of the law. The acts
ELEMENTS: against national security may be committed
a. That the offender is a public officer abroad and still be punishable under our law, but
it can not be tried under foreign law.
b. That he has in his possession the
articles, data or information referred
to in par 1 of art 117, by reason of the Article 118
public office he holds INCITING TO WAR OR GIVING MOTIVES FOR
REPRISALS
c. That he discloses their contents to a
representative of a foreign nation ELEMENTS:
a. That the offender performs unlawful
 Purpose: to gather data or unauthorized acts

* Under the second mode, the offender must be a b. That such acts provoke or give
public officer who has in possession the articles, occasion for a war involving or liable
data or information by reason of the office he to involve the Philippines or expose
holds. Taking advantage of his official position, Filipino citizens to reprisals on their
he reveals or discloses the information which are persons or property
confidential and are relevant to the defense of the
Philippines.  Crime is committed in time of peace, intent is
immaterial
 ESPIONAGE: the offense of gathering,
transmitting, or losing information respecting  Inciting to war – offender is any person
the national defense with the intent or reason  Reprisals is not limited to military action, it
to believe that the information is to be used could be economic reprisals, or denial of
to the injury of the Philippines or the entry into their country.
advantage of any foreign nation. It is not
conditioned on citizenship. EXAMPLE. X burns Chinese flag. If China bans
the entry of Filipinos into China, that is already
 Not necessary that Philippines is at war with reprisal.
the country to which the information was
revealed. What is important is that the Article 119
information related is connected with the VIOLATION OF NEUTRALITY
defense system of the Philippines.
ELEMENTS:
 Wiretapping is NOT espionage if the purpose a. That there is war in which the Philippines
is not something connected with the defense is not involved

Commonwealth Act No. 616 – An Act to b. That there is a regulation issued by

Punish Espionage and Other Offenses against competent authority for the purpose of
National Security enforcing neutrality

Acts punished c. That the offender violates such

1. Unlawfully obtaining or permitting to be regulation
obtained information affecting national
defense;  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 Article 121
authority like the President of the Philippines or FLIGHT TO ENEMY’S COUNTRY
the Chief of Staff of the Armed Forces of the
Philippines, during a war between different  ELEMENTS
countries in which the Philippines is not taking a. That there is a war in which the
sides. Philippines is involved

 It is neutrality of the Phil that is violated b. That the offender (Filipino or resident
alien) must be owing allegiance to the
 Congress has the right to declare neutrality government

* The violations can be done either by means of c. That the offender attempts to flee or go
dolo or by means of culpa. So violation of to enemy country
neutrality can be committed through reckless
imprudence. d. That going to enemy country is
prohibited by competent authority
Article 120
CORRESPONDENCE WITH HOSTILE COUNTRY  Mere attempt consummates the crime

ELEMENTS:  There must be a prohibition. If none, even if

a. That it is in time of war in which the went to enemy country – no violation
Philippines is involved
 Alien resident may be guilty here.
b. That the offender makes
correspondence with an enemy Article 122
country or territory occupied by PIRACY
enemy troops
 2 Ways of Committing Piracy
c. That the correspondence is either – a. By attacking or seizing a vessel on the
high seas or in the Philippine waters (PD
1. prohibited by the government, or 532)

2. carried on in ciphers or conventional signs, or b. By seizing the whole or part of the cargo
of said vehicles, its equipment or
3. containing notice or information which might personal belongings of its complement or
be useful to the enemy passengers

 Circumstances qualifying the offense:  Elements:

1 a. notice or information might be useful to the a. That a vessel is on the high
enemy seas/Philippine waters
2
3 b. offender intended to aid the enemy b. That the offenders are not members of its
complement or passengers of the vessel
 Hostile country exist only during hostilities or
after the declaration of war c. That the offenders –
1. attack or seize that vessel or (hence, if
 Correspondence to enemy country – committed by crew or passengers, the
correspondence to officials of enemy country – crime is not piracy but robbery in the high
even if related to you. seas)

 It is not correspondence with private individual 2. seize the whole or part of the cargo of
in enemy country said vessel, its equipment or personal
belongings of its complement or
 If ciphers were used, no need for prohibition passengers

 If ciphers were not used, there is a need for  High seas: any waters on the sea coast
prohibition which are without the boundaries of the low
water mark although such waters may be in
 In any case, it must be correspondence with the the jurisdictional limits of a foreign gov’t
enemy country  PIRACY IN HIGH SEAS – jurisdiction is with
any court where offenders are found or
 Doesn’t matter if correspondence contains arrested
innocent matters – if prohibited, punishable  PIRACY IN INTERNAL WATERS –
jurisdiction is only with Philippine courts
  For purpose of Anti-Fencing Law, piracy is is expressly provided in the same section that the
part of robbery and theft offender shall be considered as an accomplice of
the principal offenders and punished in
PIRACY MUTINY accordance with the Revised Penal Code. This
Robbery or forcible Unlawful resistance to a provision of Presidential Decree No. 532 with
degradation on the high superior officer, or the respect to piracy in Philippine water has not been
seas, without lawful raising of commotion and incorporated in the Revised Penal Code. Neither
authority and done with disturbances on board a may it be considered repealed by Republic Act
animo lucrandi and in the ship against the authority No. 7659 since there is nothing in the
spirit and intention of of its commander amendatory law is inconsistent with said section.
universal hostility. Apparently, there is still the crime of abetting
Intent to gain is an No criminal intent piracy in Philippine waters under Presidential
element. Decree No. 532.
Attack from outside. Attack from the inside.
Offenders are strangers to * Considering that the essence of piracy is one of
the vessel. robbery, any taking in a vessel with force upon
things or with violence or intimidation against
 under the amended article, piracy can only person is employed will always be piracy. It
be committed by a person who is not a cannot co-exist with the crime of robbery.
passenger nor member of the complement of Robbery, therefore, cannot be committed on
the vessel irrespective of venue. So if a board a vessel. But if the taking is without
passenger or complement of the vessel violence or intimidation on persons or force upon
commits acts of robbery in the high seas, things, the crime of piracy cannot be committed,
the crime is robbery, not piracy. but only theft.
 If in the Phil. waters still piracy

* However, despite the amendment, P.D. No. 532 ELEMENTS OF MUTINY

may still apply where the offender is not stranger
to the vessel since it provides: “Any attack upon 1) The vessel is on the high seas or
or seize of any vessel, or the taking away of the Philippine waters;
whole of part thereof or its cargo, equipment or the
personal belongings of its complement or 2) Offenders are either members of its
passengers, irrespective of the value hereof, by complement, or passengers of the
means of violence against or intimidation of vessel;
persons or force upon things, committed by any
person, including a passenger or member of the 3) Offenders either –
complement of said vessel, in Philippine waters,
shall be considered as piracy. The offenders shall a. attack or seize the vessel; or
be considered as pirates and punished as
hereinafter provided.” After all, under the Revised b. seize the whole or part of the cargo,
Penal Code, for one to be called a pirate, the its equipment, or personal belongings
offender must be a stranger to the vessel. of the crew or passengers.

MUTINY is the unlawful resistance to a superior

 While the Article 122 limits the offenders to
officer, or the raising of commotions and
non-passengers or non-members of the crew,
disturbances aboard a ship against the authority
P.D. 532 states that the attack upon or
of its commander.
seizure of any vessel, or taking away the
whole or part thereof or its cargo, equipment
or personal belongings of its complement or
Article 123
passengers committed by any person
QUALIFIED PIRACY
including a passenger or member of the
complement of said vessel shall be
considered Piracy.  QUALIFYING CIRCUMSTANCES:
a. Whenever they have seized a vessel by
* Note, however, that in Section 4 of Presidential boarding or firing upon the same
Decree No. 532, the act of aiding pirates or
abetting piracy is penalized as a crime distinct b. Whenever the pirates have abandoned
from piracy. Said section penalizes any person their victims without means of saving
who knowingly and in any manner aids or themselves
protects pirates, such as giving them information
about the movement of the police or other peace c. Whenever the crime is accompanied
officers of the government, or acquires or receives by murder, homicide, physical
property taken by such pirates, or in any manner injuries, or rape. (the above may
derives any benefit therefrom; or who directly or result to qualified mutiny)
indirectly abets the commission of piracy. Also, it
* Murder, rape, homicide, physical injuries are aircraft in the Philippines, any flammable,
mere circumstances qualifying piracy and cannot corrosive, explosive, or poisonous
be punished as separate crimes, nor can they be substance; and
complexed with piracy.
(4) loading, shipping, or transporting on
 Parricide/infanticide should be included board a cargo aircraft operating as a
(Judge Pimentel) public utility in the Philippines, any
flammable, corrosive, explosive, or
 Murder/rape/homicide/physical injuries poisonous substance if this was done not
must have been committed on the in accordance with the rules and
passengers or complement regulations set and promulgated by the
Air Transportation Office on this matter.
* In piracy, where rape, murder or homicide is
committed, the mandatory penalty of death is Between numbers 1 and 2, the point of
imposable. This means that even if the accused distinction is whether the aircraft is of Philippine
enters a plea of guilty, the penalty of death will registry or foreign registry. The common bar
still be imposed because death is a single and question on this law usually involves number 1.
indispensable penalty. (People vs. Rodriguez, The important thing is that before the anti hi-
135 SCRA 485) jacking law can apply, the aircraft must be in
flight. If not in flight, whatever crimes committed
* The penalty for qualified piracy is reclusion shall be governed by the Revised Penal Code. The
perpetua to death. If any of the circumstances law makes a distinction between aircraft of a
enumerated under the law is proven or foreign registry and of Philippine registry. If the
established, the mandatory penalty of death aircraft subject of the hi-jack is of Philippine
should be imposed. The presence of mitigating or registry, it should be in flight at the time of the hi-
aggravating circumstances will be ignored by the jacking. Otherwise, the anti hi-jacking law will not
court. apply and the crime is still punished under the
Revised Penal Code. The correlative crime may
Although in Article 123 merely refers to qualified be one of grave coercion or grave threat. If
piracy, there is also the crime of qualified mutiny. somebody is killed, the crime is homicide or
Mutiny is qualified under the following murder, as the case may be. If there are some
circumstances: explosives carried there, the crime is destructive
arson. Explosives are by nature pyro-techniques.
(1) When the offenders abandoned the Destruction of property with the use of pyro-
victims without means of saving technique is destructive arson. If there is illegally
themselves; or possessed or carried firearm, other special laws
will apply.
(2) When the mutiny is accompanied by rape,
murder, homicide, or physical injuries. On the other hand, if the aircraft is of foreign
registry, the law does not require that it be in
Note that the first circumstance which qualifies flight before the anti hi-jacking law can apply.
piracy does not apply to mutiny. This is because aircrafts of foreign registry are
considered in transit while they are in foreign
countries. Although they may have been in a
Republic Act No. 6235 (The Anti Hi-Jacking foreign country, technically they are still in flight,
Law) because they have to move out of that foreign
country. So even if any of the acts mentioned
Anti hi-jacking is another kind of piracy which is were committed while the exterior doors of the
committed in an aircraft. In other countries, this foreign aircraft were still open, the anti hi-jacking
crime is known as aircraft piracy. law will already govern.

Four situations governed by anti hi-jacking Note that under this law, an aircraft is
law: considered in flight from the moment all exterior
doors are closed following embarkation until such
(1) usurping or seizing control of an aircraft of time when the same doors are again opened for
Philippine registry while it is in flight, disembarkation. This means that there are
compelling the pilots thereof to change the passengers that boarded. So if the doors are
course or destination of the aircraft; closed to bring the aircraft to the hangar, the
aircraft is not considered as in flight. The aircraft
(2) usurping or seizing control of an aircraft of shall be deemed to be already in flight even if its
foreign registry while within Philippine engine has not yet been started
territory, compelling the pilots thereof to Questions & Answers
land in any part of Philippine territory;

(3) carrying or loading on board an aircraft 1. The pilots of the Pan Am aircraft
operating as a public utility passenger were accosted by some armed men and were told
to proceed to the aircraft to fly it to a foreign anti hi-jacking law because there is no
destination. The armed men walked with the requirement for foreign aircraft to be in flight
pilots and went on board the aircraft. But before before such law would apply. The reason for the
they could do anything on the aircraft, alert distinction is that as long as such aircraft has not
marshals arrested them. What crime was returned to its home base, technically, it is still
committed? considered in transit or in flight.

The criminal intent definitely is to take As to numbers 3 and 4 of Republic Act No. 6235,
control of the aircraft, which is hi-jacking. It is a the distinction is whether the aircraft is a
question now of whether the anti-hi-jacking law passenger aircraft or a cargo aircraft. In both
shall govern. cases, however, the law applies only to public
utility aircraft in the Philippines. Private
The anti hi-jacking law is applicable in aircrafts are not subject to the anti hi-jacking law,
this case. Even if the aircraft is not yet about to in so far as transporting prohibited substances are
fly, the requirement that it be in flight does not concerned.
hold true when in comes to aircraft of foreign
registry. Even if the problem does not say that all If the aircraft is a passenger aircraft, the
exterior doors are closed, the crime is hi-jacking. prohibition is absolute. Carrying of any
Since the aircraft is of foreign registry, under the prohibited, flammable, corrosive, or explosive
law, simply usurping or seizing control is enough substance is a crime under Republic Act No.
as long as the aircraft is within Philippine 6235. But if the aircraft is only a cargo aircraft,
territory, without the requirement that it be in the law is violated only when the transporting of
flight. the prohibited substance was not done in
accordance with the rules and regulations
Note, however, that there is no hi-jacking prescribed by the Air Transportation Office in the
in the attempted stage. This is a special law matter of shipment of such things. The Board of
where the attempted stage is not punishable. Transportation provides the manner of packing of
such kind of articles, the quantity in which they
2. A Philippine Air Lines aircraft is may be loaded at any time, etc. Otherwise, the
bound for Davao. While the pilot and co-pilot are anti hi-jacking law does not apply.
taking their snacks at the airport lounge, some of
the armed men were also there. The pilots were However, under Section 7, any physical injury or
followed by these men on their way to the damage to property which would result from the
aircraft. As soon as the pilots entered the carrying or loading of the flammable, corrosive,
cockpit, they pulled out their firearms and gave explosive, or poisonous substance in an aircraft,
instructions where to fly the aircraft. Does the the offender shall be prosecuted not only for
anti hi-jacking law apply? violation of Republic Act No. 6235, but also for the
No. The passengers have yet to board the crime of physical injuries or damage to property,
aircraft. If at that time, the offenders are as the case may be, under the Revised Penal
apprehended, the law will not apply because the Code. There will be two prosecutions here. Other
aircraft is not yet in flight. Note that the aircraft is than this situation, the crime of physical injuries
of Philippine registry. will be absorbed. If the explosives were planted
in the aircraft to blow up the aircraft, the
3. While the stewardess of a circumstance will qualify the penalty and that is
Philippine Air Lines plane bound for Cebu was not punishable as a separate crime for murder.
waiting for the passenger manifest, two of its The penalty is increased under the anti hi-
passengers seated near the pilot surreptitiously jacking law.
entered the pilot cockpit. At gunpoint, they
directed the pilot to fly the aircraft to the Middle All other acts outside of the four are merely
East. However, before the pilot could fly the qualifying circumstances and would bring about
aircraft towards the Middle East, the offenders higher penalty. Such acts would not constitute
were subdued and the aircraft landed. What another crime. So the killing or explosion will
crime was committed? only qualify the penalty to a higher one.

The aircraft was not yet in flight.

Questions & Answers
Considering that the stewardess was still waiting
for the passenger manifest, the doors were still
open. Hence, the anti hi-jacking law is not 1. In the course of the hi-jack, a
applicable. Instead, the Revised Penal Code shall passenger or complement was shot and killed.
govern. The crime committed was grave coercion What crime or crimes were committed?
or grave threat, depending upon whether or not
any serious offense violence was inflicted upon The crime remains to be a violation of the
the pilot. anti hi-jacking law, but the penalty thereof shall
be higher because a passenger or complement of
However, if the aircraft were of foreign the aircraft had been killed. The crime of
registry, the act would already be subject to the homicide or murder is not committed.
 a. That the offender is a public officer
2. The hi-jackers threatened to or employee (whose official duties
detonate a bomb in the course of the hi-jack. include the authority to make an arrest
What crime or crimes were committed? and detain persons; jurisdiction to
maintain peace and order).
Again, the crime is violation of the anti hi-
jacking law. The separate crime of grave threat is b. That he detains a person (actual
not committed. This is considered as a qualifying restraint).
circumstance that shall serve to increase the
penalty. c. That the detention was without legal
grounds (cannot be committed if with
warrant).
TITLE TWO
CRIMES AGAINST THE FUNDAMENTAL LAWS  DETENTION: when a person is placed in
OF THE STATE confinement or there is a restraint on his
person.
Crimes against the fundamental laws of the
State * Only those public officers whose official duties
1. Arbitrary detention (Art. 124); carry with it the authority to make an arrest and
2. Delay in the delivery of detained persons detain persons can be guilty of this crime. So, if
to the proper judicial authorities (Art. the offender does not possess such authority, the
125); crime committed by him is illegal detention.
3. Delaying release (Art. 126);
4. Expulsion (Art. 127);  Though the elements specify that the
5. Violation of domicile (Art. 128); offender be a public officer or employee,
6. Search warrants maliciously obtained private individuals who conspire with public
and abuse in the service of those legally officers can also be liable.
obtained (Art. 129);
7. Searching domicile without witnesses * In a case decided by the Supreme Court a
(Art. 130); Barangay Chairman who unlawfully detains
8. Prohibition, interruption, and dissolution another was held to be guilty of the crime of
of peaceful meetings (Art. 131); arbitrary detention. This is because he is a
9. Interruption of religious worship (Art. person in authority vested with the jurisdiction to
132); and maintain peace and order within his barangay.
10. Offending the religious feelings (Art. 133); In the maintenance of such peace and order, he
may cause the arrest and detention of
* Under this title, the offenders are public officers, troublemakers or those who disturb the peace
except as to the last crime – offending the religious and order within his barangay. But if the legal
feelings under Article 133, which refers to any basis for the apprehension and detention does
person. The public officers who may be held liable not exist, then the detention becomes arbitrary.
are only those acting under supposed exercise of
official functions, albeit illegally. But private  Legal grounds for the detention of any
persons may also be liable under this title as person:
when a private person conspires with a public a. commission of a crime
officer. What is required is that the principal
offender must be a public officer. Thus, if a b. violent insanity or other ailment
private person conspires with a public officer, or requiring compulsory confinement of the
becomes an accessory or accomplice, the private patient in a hospital
person also becomes liable for the same crime. But
a private person acting alone cannot commit the c. escaped prisoner
crimes under Article 124 to 132 of this title. * When the peace officers acted in good faith even
if the three (3) grounds mentioned above are not
CLASSES OF ARBITRARY DETENTION: obtaining, there is no Arbitrary Detention.
a. By detaining a person without legal
ground  Without legal grounds:
b. Delay in the delivery of detained persons a. he has not committed any crime or no
to the proper judicial authorities reasonable ground of suspicion that he
c. Delaying release has committed a crime

b. not suffering from violent insanity or any

other ailment requiring compulsory
Article 124 confinement in a hospital
ARBITRARY DETENTION
 Grounds for warrantless arrest:
 ELEMENTS: a. Crime is about to be, is being, has been
committed in his presence
 of illegal detention when he is acting in a
b. Officer must have probable cause to private capacity or beyond the scope of
believe based on personal knowledge of his official duty, or when he becomes an
facts and circumstances that the person accomplice or accessory to the crime
probably committed the crime committed by a private person.

 For escaped prisoner – no need for warrant The offender, even if he is a public officer,
does not include as his function the power
 Example: Y was killed by unknown assailant. to arrest and detain a person, unless he
Officers got a tip and arrested X. X conspires with a public officer committing
voluntarily admitted to the officers that he arbitrary detention.
did it although he was not asked. X was
detained immediately. According to the SC, * Whether the crime is arbitrary detention or illegal
there was NO arbitrary detention. Why? detention, it is necessary that there must be an
Because once X made a confession, the actual restraint of liberty of the offended party. If
officers had a right to arrest him. there is no actual restraint, as the offended party
may still go to the place where he wants to go,
* Arbitrary detention can be committed thru even though there have been warnings, the crime
simple imprudence or negligence. (People vs. of arbitrary detention or illegal detention is not
Misa) committed. There is either grave or light threat.
However, if the victim is under guard in his
Periods of Detention penalized: movement such that there is still restraint of
liberty, then the crime of either arbitrary or illegal
1. Detention not exceeding three days; detention is still committed.

2. Detention for more than three days but not Distinction between arbitrary detention and
more than 15 days; unlawful arrest

3. Detention for more than 15 days but not more (1) As to offender
than 6 months; and
In arbitrary detention, the offender is a
4. Detention for more than 6 months. public officer possessed with authority to
make arrests.
 Continuing crime is different from a
continuous crime In unlawful arrest, the offender may be
any person.
 Ramos v. Enrile: Rebels later on retire.
According to the SC, once you have (2) As to criminal intent
committed rebellion and have not been
punished or amnestied, then the rebels In arbitrary detention, the main reason
continue to engage in rebellion, unless the for detaining the offended party is to
rebels renounce his affiliation. Arrest can be deny him of his liberty.
made without a warrant because this is a
continuing crime. In unlawful arrest, the purpose is 1) to
accuse the offended party of a crime he
Distinction between arbitrary detention and did not commit; 2) to deliver the person
illegal detention to the proper authority; and 3) to file the
necessary charges in a way trying to
1. In arbitrary detention -- incriminate him.

The principal offender must be a public * When a person is unlawfully arrested, his
officer. Civilians cannot commit the crime subsequent detention is without legal grounds.
of arbitrary detention except when they
conspire with a public officer committing Article 125
this crime, or become an accomplice or DELAY IN THE DELIVERY OF DETAINED
accessory to the crime committed by the PERSONS
public officer; and
 ELEMENTS:
The offender who is a public officer has a a. That the offender is a public officer
duty which carries with it the authority to or employee
detain a person.
b. That he has detained a person for
2. In illegal detention -- some legal grounds

The principal offender is a private person. c. That he fails to deliver such person to
But a public officer can commit the crime the proper judicial authority within:
 1. 12 hours, if detained for involve the physical delivery of the prisoner
crimes/offenses punishable by light before the judge (Sayo vs. Chief of Police).
penalties, or their equivalent
2. 18 hours, for crimes/offenses  The filing of the information in court does not
punishable by correctional cure illegality of detention. Neither does it
penalties, or their equivalent or affect the legality of the confinement under
3. 36 hours, for crimes/offenses process issued by the court.
punishable by capital punishment
or afflictive penalties, or their  To escape from this, officers usually ask
equivalent accused to execute a waiver which should be
under oath and with assistance of counsel.
* Article 125 covers situations wherein the person Such waiver is not violative of the accused
detained has been arrested without a warrant but constitutional right.
his arrest is nonetheless lawful. It is a felony
committed by omission because of the failure of  What is length of waiver? Light offense – 5
the offender to deliver the detained person to the days. Serious and less serious offenses – 7 to
proper judicial authority within 12 hours, 18 10 days. (Judge Pimentel)
hours and 36 hours as the case may be.
 Article does not apply when arrest is via a
* At the beginning, the detention is legal since it warrant of arrest
is in the pursuance of a lawful arrest. However,
the detention becomes arbitrary when the period Q. Within what period should a police
thereof exceeds 12, 18 or 36 hours, as the case officer who has arrested a person under a
may be, depending on whether the crime is warrant of arrest turn over the arrested person to
punished by light, correctional or afflictive the judicial authority?
penalty or their equivalent.
A. There is no time limit specified except
 Really means delay in filing necessary that the return must be made within a reasonable
information or charging of person detained in time. The period fixed by law under Article 125
court. does not apply because the arrest was made by
virtue of a warrant of arrest.
 May be waived if a preliminary investigation
is asked for.  If offender is a private person, crime is illegal
detention
* Under the Revised Rules of Court, when the
person arrested is arrested for a crime which  Before Article 125 may be applied, it is
gives him the right to preliminary investigation necessary that initially, the detention of the
and he wants to avail his right to a preliminary arrested person must be lawful because the
investigation, he would have to waive in writing arrest is based on legal grounds. If the arrest
his rights under Article 125 so that the arresting is made without a warrant, this constitutes
officer will not immediately file the case with the an unlawful arrest. Article 269(unlawful
court that will exercise jurisdiction over the case. arrest), not Article 125, will apply. If the
If he does not want to waive this in writing, the arrest is not based on legal grounds, the
arresting officer will have to comply with Article arrest is pure and simple arbitrary detention.
125 and file the case immediately in court Article 125 contemplates a situation where
without preliminary investigation. In such case, the arrest was made without warrant but
the arrested person, within five days after based on legal grounds. This is known as
learning that the case has been filed in court citizen’s arrest.
without preliminary investigation, may ask for  A police officer has no authority to arrest and
preliminary investigation. In this case, the public detain a person on the basis merely of the
officer who made the arrest will no longer be complaint of the offended party, even if after
liable for violation of Article 125. investigation he becomes convinced that the
accused is guilty of the offense charged. What
 Does not contemplate actual physical the complainant may do is to file a complaint
delivery but at least there must be a with the court and ask for the issuance of a
complaint filed. Duty complied with upon the warrant of arrest.
filing of the complaint with the judicial
authority (courts, prosecutors – though Arbitrary Detention Delay in Delivery of
technically not a judicial authority, for (124) Detained (125)
purposes of this article, he’s considered as Detention is illegal Detention is legal in the
one.) from the beginning. beginning, but illegality
starts from the expiration of
* Delivery of detained person consists in making the specified periods
charge of filing a compliant against the prisoner without the persons
with the proper judicial authority. It does not detained having been
 delivered to the proper * The essence of this crime is coercion but the
judicial authority. specific crime is “expulsion” when committed by
a public officer. If committed by a private person,
Article 126 the crime is grave coercion.
DELAYING RELEASE
* In the Philippines, only the President of the
ELEMENTS: Republic has the power to deport aliens whose
a. That the offender is a public officer continued stay in the country constitutes a
or employee menace to the peace and safety of the
community.
b. That there is a judicial or executive
order for the release of a prisoner or * In the case of Filipino citizens, only the court,
detention prisoner, or that there is a by final judgment, can order a person to change
proceeding upon a petition for the his residence.
liberation of such person
In Villavicencio v. Lukban, 39 Phil 778, the
c. That the offender without good mayor of the City of Manila wanted to make the
reason delays: city free from prostitution. He ordered certain
prostitutes to be transferred to Davao, without
1. the service of the notice of such order observing due processes since they have not been
to the prisoner, or charged with any crime at all. It was held that
the crime committed was expulsion.
2. the performance of such judicial or
executive order for the release of the  Does not include undesirable aliens;
prisoner, or destierro; or when sent to prison
3. the proceedings upon a petition for
the release of such person
Questions & Answers
 Three acts are punishable:
a. delaying the performance of a judicial or 1. Certain aliens were arrested and
executive order for the release of a they were just put on the first aircraft which
prisoner brought them to the country so that they may be
out without due process of law. Was there a
b. delaying the service of notice of such crime committed?
order to said prisoner
Yes. Expulsion.
c. delaying the proceedings upon any
petition for the liberation of such person 2. If a Filipino citizen is sent out of
the country, what crime is committed?
 Wardens and jailers are the persons most
likely to violate this provision Grave coercion, not expulsion, because a
Filipino cannot be deported. This crime refers only
 Provision does not include legislation to aliens.

Article 127  If X (Filipino) after he voluntarily left, is

EXPULSION refused re-entry – is considered forcing him
to change his address here
ELEMENTS:
a. That the offender is a public officer  Threat to national security is not a ground to
or employee expel or change his address.

b. That he expels any person from the Article 128

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

 2 acts punishable: b. That he is not authorized by judicial

a. by expelling a person from the order to enter the dwelling and/or to
Philippines make a search therein for papers or
other effects
b. by compelling a person to change his
residence c. That he commits any of the following
acts:
 1. entering any dwelling against the will officer, after giving notice of an arrest, can
of the owner thereof break into the premise. He shall not be liable
for violation of domicile.
2. searching papers or other effects
found therein without the previous  3 acts punishable:
consent of such owner a. person enters dwelling w/o consent or
against the will
3. refusing to leave the premises, after
having surreptitiously entered said In the plain view doctrine, public officer
dwelling and after having been should be legally entitled to be in the
required to leave the same place where the effects were found. If he
entered the place illegally and he saw the
 Aggravating Circumstance (medium and effects, doctrine inapplicable; thus, he is
maximum of penalty imposed): liable for violation of domicile.
a. Offense committed at nighttime
b. person enters and searches for
b. Papers or effects not constituting papers and effects
evidence of a crime be not returned
immediately Public officer who enters with consent
searches for paper and effects without
* In order to commit this crime, the entry must the consent of the owner. Even if he is
be against the will of the owner. If the entry is welcome in the dwelling, it does not
only without the consent of the owner, the crime mean he has permission to search.
of violation of domicile is not committed.
The prohibition may be expressed or implied. If c. person entered secretly and refuses to
the signs “Do not enter” and “Strangers keep out” leave after being asked to
are posted in front of the house or dwelling, then
the prohibition is express. If the door is locked, or The act punished is not the entry but the
even if it is open but these are barriers to indicate refusal to leave. If the offender upon
the manifest intention of the owner to bar being directed to leave, followed and left,
strangers from entering, there is implied there is no crime of violation of domicile.
prohibition. Entry must be done surreptitiously;
without this, crime may be unjust
* The primary object of the law is to preserve the vexation. But if entering was done
privacy of abode of the offended party. Hence, if against the will of the occupant of the
the privacy is already lost, as when the offender house, meaning there was express or
has been allowed by the owner to enter the implied prohibition from entering the
dwelling together with other persons, any same, even if the occupant does not
subsequent change of attitude will not restore the direct him to leave, the crime of violation
privacy which was already lost. When privacy is of domicile is already committed because
waived, trespass to dwelling or violation of it would fall in number 1.
domicile cannot be committed.
 “BEING AUTHORIZED BY LAW” – means
 If the offender who enters the dwelling with search warrant, to save himself or do
against the will of the owner thereof is a some things good for humanity
private individual, the crime committed is
trespass to dwelling (Art 280) There are only three recognized instances when
search without a warrant is considered valid, and,
 When a public officer searched a person therefore, the seizure of any evidence done is also
“outside his dwelling” without a search valid. Outside of these, search would be invalid
warrant and such person is not legally and the objects seized would not be admissible in
arrested for an offense, the crime committed evidence.
by the public officer is grave coercion, if
violence or intimidation is used (Art 286), or (1) Search made incidental to a valid arrest;
unjust vexation, if there is no violence or
intimidation (Art 287) (2) Where the search was made on a moving
vehicle or vessel such that the exigency of
 A public officer without a search warrant he situation prevents the searching officer
cannot lawfully enter the dwelling against the from securing a search warrant;
will of the owner, even if he knew that
someone in that dwelling is having unlawful (3) When the article seized is within plain
possession of opium view of the officer making the seizure
without making a search therefore.
 Under Rule 113(sec. 11) of the Revised Rules
of Court, when a person to be arrested enters  Papers and effects need not be part of a
a premise and closes it thereafter, the public crime.
 commanding him to search for personal
Article 129 property described therein and bring it before
SEARCH WARRANTS MALICIOUSLY the court
OBTAINED
 No just cause – warrant is unjustified
ELEMENTS:
a. That the offender is a public officer  Search – limited to what is described in the
or employee warrant, all details must be with particularity

b. That he procures a search warrant The officer exceeded his authority under the
warrant – To illustrate, let us say that there was
c. That there is no just cause a pusher in a condo unit. The PNP Narcotics
Group obtained a search warrant but the name of
 In order that a search warrant may be issued, person in the search warrant did not tally with
it must be based on probable cause in the address stated. Eventually, the person with
connection with one offense, to be the same name was found but in a different
determined by a judge after examination address. The occupant resisted but the public
under oath of the complainant and the officer insisted on the search. Drugs were found
witnesses he may produce, and particularly and seized and occupant was prosecuted and
describing the place to be searched and the convicted by the trial court. The Supreme Court
persons or things to be seized. acquitted him because the public officers are
required to follow the search warrant to the
* This means there was no probable cause letter. They have no discretion on the matter.
determined in obtaining the search warrant. Plain view doctrine is inapplicable since it
presupposes that the officer was legally entitled
 Although void, the search warrant is entitled to be in the place where the effects where found.
to respect because of presumption of Since the entry was illegal, plain view doctrine
regularity. One remedy is a motion to quash does not apply.
the search warrant, not refusal to abide by it.
The public officer may also be prosecuted for  Malicious warrant. Example. X was a
perjury, because for him to succeed in respondent of a search warrant for illegal
obtaining a search warrant without a possession of firearms. A return was made.
probable cause, he must have perjured The gun did not belong to X and the witness
himself or induced someone to commit had no personal knowledge that there is a
perjury to convince the court. gun in that place.

* The true test of lack of just cause is whether the  Abuse examples:
sworn statement filed in support of the a. X owner was handcuffed while search
application for search warrant has been done in was going-on.
such a manner that perjury could be charged
and the affiant can be held liable for making such b. Tank was used to ram gate prior to
false statement. The oath required refers to the announcement that a search will be
truth of the facts within the personal knowledge made
of the applicant and his witnesses. The search warrant is not a license to
commit destruction.

ABUSE IN THE SERVICE OF WARRANT OR c. Persons who were not respondents were
EXCEEDING AUTHORITY OR USING searched
UNNECESSARY SEVERITY IN EXECUTING A
SEARCH WARRANT LEGALLY PROCURED
Article 130
ELEMENTS: SEARCHING DOMICILE WITHOUT WITNESSES
a. That the offender is a public officer
or employee  ELEMENTS :
b. That he has legally procured a search a. That the offender is a public officer
warrant or employee
c. That he exceeds his authority or uses
unnecessary severity in executing the b. That he is armed with a search
same warrant legally procured

 Search warrant is valid for 10 days from its c. That he searches the domicile, papers
date or other belongings of any person

 Search warrant is an order in writing d. That the owner, or any member of his
issued in the name of the People, signed by family, or two witnesses residing in
the judge and directed to a public officer, the same locality are not present
 Order of those who must witness the (1) Dangerous tendency rule – applicable in
search: times of national unrest such as to
a. Homeowner prevent coup d’etat.

b. Members of the family of sufficient age (2) Clear and present danger rule – applied in
and discretion times of peace. Stricter rule.

c. Responsible members of the community  If the offender is a private individual, the

(can’t be influenced by the searching crime is disturbance of public order (Art 153)
party)
 Meeting must be peaceful and there is no
 Validity of the search warrant can be legal ground for prohibiting, dissolving or
questioned only in 2 courts: 1) where issued interrupting that meeting
or 2) where the case is pending. Latter is
preferred for objective determination.  If in the course of the assembly the
participants commit illegal acts like oral
* Article 130 has no application to search and defamation or inciting to sedition, a public
seizure made on moving vehicles because the officer or law enforcer can stop or dissolve
application of this law is limited to dwelling and the meeting. The permit given is not a license
personal properties such as papers and effects to commit a crime.
found therein.
 Meeting is subject to regulation
* There are searches and seizures which are
authorized by law and which can be done without * If the permit is denied arbitrarily, Article 131 is
the attendance of witnesses. For instance, the violated. If the officer would not give the permit
Tariff and Customs Code authorizes persons with unless the meeting is held in a particular place
police authority under Sec. 2203, to enter; pass which he dictates, such defeats the exercise of
through or search any land, enclosure, the right to peaceably assemble, Article 131 is
warehouse, store or building, not being used as a violated.
dwelling house; and to inspect, search and
examine any vessel or aircraft, and any trunk,  Offender must be a stranger, not a
package, box or envelope, or any person on participant, in the peaceful meeting;
board, or to stop and search and examine any otherwise, it’s unjust vexation
vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article  Interrupting and dissolving a meeting of the
introduced into the Philippines contrary to law. municipal council by a public officer is a
crime against the legislative body, not
punishable under this article
Article 131
PROHIBITION, INTERRUPTION, AND  The person talking on a prohibited subject at
DISSOLUTION OF PEACEFUL MEETINGS a public meeting contrary to agreement that
no speaker should touch on politics may be
 ELEMENTS: stopped
a. Offender is a public officer or
employee  But stopping the speaker who was attacking
certain churches in public meeting is a
b. He performs any of the ff. acts: violation of this article

1. prohibiting or interrupting,  Prohibition must be without lawful cause or

without legal ground the holding without lawful authority
of a peaceful meeting, or
dissolving the same (e.g. denial of  Those holding peaceful meetings must
permit in arbitrary manner). comply with local ordinances. Example:
Ordinance requires permits for meetings in
2. hindering any person from joining public places. But if police stops a meeting in
any lawful association or from a private place because there’s no permit,
attending any of its meetings. officer is liable for stopping the meeting.
 prohibiting or hindering any person from
addressing, either alone or together with
others, any petition to the authorities for the Distinctions between prohibition,
correction of abuses or redress of grievances interruption, or dissolution of peaceful
meetings under Article 131, and tumults and
Two criteria to determine whether Article other disturbances, under Article 153
131 would be violated:
  When priest is solemnizing marriage, he is a
(1) As to the participation of the public person in authority, although in other cases,
officer he’s not.

In Article 131, the public officer is not a Article 133

participant. As far as the gathering is OFFENDING RELIGIOUS FEELINGS
concerned, the public officer is a third
party.  ELEMENTS:
a. That the acts complained of were
If the public officer is a participant of the performed –
assembly and he prohibits, interrupts, or
dissolves the same, Article 153 is violated 1. in a place devoted to religious
if the same is conducted in a public place. worship, or (for this element, no
need of religious ceremony, only the
(2) As to the essence of the crime place is material)
2. during the celebration of any
In Article 131, the offender must be a religious ceremony
public officer and, without any legal
ground, he prohibits, interrupts, or b. That the acts must be notoriously
dissolves a peaceful meeting or assembly offensive to the feelings of the
to prevent the offended party from faithful (deliberate intent to hurt the
exercising his freedom of speech and that feelings)
of the assembly to petition a grievance
against the government. c. The offender is any person

In Article 153, the offender need not be a d. There is a deliberate intent to hurt
public officer. The essence of the crime the feelings of the faithful, directed
is that of creating a serious disturbance against religious tenet
of any sort in a public office, public  If in a place devoted to religious purpose,
building or even a private place where a there is no need for an ongoing religious
public function is being held. ceremony

Article 132  Example of religious ceremony (acts

INTERRUPTION OF RELIGIOUS WORSHIP performed outside the church). Processions
and special prayers for burying dead persons
 ELEMENTS: but NOT prayer rallies
a. That the officer is a public officer or
employee  Acts must be directed against religious
practice or dogma or ritual for the purpose of
b. That religious ceremonies or ridicule, as mocking or scoffing or attempting
manifestations of any religion are to damage an object of religious veneration
about to take place or are going on
 There must be deliberate intent to hurt the
c. That the offender prevents or disturbs feelings of the faithful, mere arrogance or
the same rudeness is not enough

 Circumstance qualifying the offense: if * In determining whether an act is offensive to

committed with violence or threats the feelings of the faithful, the same must be
viewed or judged from the standpoint of the
 Reading of Bible and then attacking certain offended religion and not from the point of view of
churches in a public plaza is not a ceremony the offender (People vs. Baes, 68 Phil. 203).
or manifestation of religion, but only a
meeting of a religious sect. But if done in a CRIME Nature Who are If Element
private home, it’s a religious service of Liable Missing
Crime
 Religious Worship: people in the act of Prohibiti Crime Public If not by
performing religious rites for a religious on, against officers, public officer
ceremony; a manifestation of religion. Ex. Interrup the Outsiders = tumults
Mass, baptism, marriage tion and fundam
Dissolut ental
 X, a private person, boxed a priest while the ion of law of
priest was giving homily and while the latter Peaceful the state
was maligning a relative of X. Is X liable? X Meeting
may be liable under Art 133 because X is a (131)
private person. Interrup Crime Public If by insider
tion of against officers, = unjust 24. Commission of another crime during
Religiou the Outsiders vexation service of penalty imposed for another
s fundam If not previous offense (Art. 160).
Worship ental religious =
(132) law of tumult or Article 134
the state alarms REBELLION OR INSURRECTION
If not  ELEMENTS:
notoriously a. That there be –
offensive =
unjust 1. public uprising and
vexation
Offendin Crime Public If not 2. taking arms against the
g the against officers, tumults = government (force/violence)
Religiou public private alarms and
s Feeling order persons, scandal b. That the purpose of the uprising or
(133) outsiders If meeting movement is either
illegal at
onset = 1. to remove from the allegiance to
inciting to said government or its laws –
sedition or 4
rebellion 5 i. the territory of the Philippines or
any part thereof, or
TITLE THREE 6
CRIMES AGAINST PUBLIC ORDER 7 ii. any body of land, naval or other
armed forces, or
Crimes against public order
1. Rebellion or insurrection (Art. 134); 2 To deprive the chief executive or
1.a Coup d’ etat (Art. 134-A) congress, wholly or partially, of
2. Conspiracy and proposal to commit any of their powers or
rebellion (Art. 136); prerogatives
3. Disloyalty to public officers or employees
(Art. 137);  Persons liable for rebellion
4. Inciting to rebellion (Art. 138); a. Any person who:
5. Sedition (Art. 139); 1. promotes
6. Conspiracy to commit sedition (Art. 141); 2. maintains, or
7. Inciting to sedition (Art. 142); 3. heads a rebellion or insurrection; or
8. Acts tending to prevent the meeting of
Congress and similar bodies (Art. 143); b. Any person who, while holding any public
9. Disturbance of proceedings of Congress office or employment, takes part therein
or similar bodies (Art. 144); by:
10. Violation of parliamentary immunity (Art. 1. engaging in war against the forces of
145); the government
11. Illegal assemblies (Art. 146);
12. Illegal associations (Art. 147); 2. destroying property or committing
13. Direct assaults (Art. 148); serious violence
14. Indirect assaults (Art. 149); 3. exacting contributions or diverting
15. Disobedience to summons issued by public funds from the lawful purpose
Congress, its committees, etc., by the for which they have been
constitutional commissions, its appropriated (Note: “diverting public
committees, etc. (Art. 150); funds” is malversation absorbed in
16. Resistance and disobedience to a person rebellion);
in authority or the agents of such person
(Art. 151); 4. Any person merely participating or
17. Tumults and other disturbances of executing the command of others in
public order (Art. 153); rebellion
18. Unlawful use of means of publication and
unlawful utterances (Art. 154); * The essence of this crime is a public uprising
19. Alarms and scandals (Art. 155); with the taking up of arms. It requires a
20. Delivering prisoners from jails (Art. 156); multitude of people. It aims to overthrow the
21. Evasion of service of sentence (Art. 157); duly constituted government. It does not require
22. Evasion on occasion of disorders (Art. the participation of any member of the military or
158); national police organization or public officers and
23. Violation of conditional pardon (Art. 159); generally carried out by civilians. Lastly, the
and crime can only be committed through force and
violence.
* The crime of rebellion cannot be committed by a
single individual. Invariably, it is committed by  RISING PUBLICLY and TAKING ARMS
several persons for the purpose of overthrowing AGAINST GOVERNMENT – actual
the duly constituted or organized government. In participation. If there is no public uprising,
the Philippines, what is known to the ordinary the crime is of direct assault.
citizen as a symbol of Government would be the
barangay, represented by its officials; the local * When any of the objectives of rebellion is
government represented by the provincial and pursued but there is no public uprising in the
municipal officials; and the national government legal sense, the crime is direct assault of the first
represented by the President, the Chief Justice form. But if there is rebellion, with public
and the Senate President and the Speaker of the uprising, direct assault cannot be committed.
House of Representatives.
 Mere giving of aid or comfort is not criminal
 Success is immaterial, purpose is always in the case of rebellion. Merely sympathizing
political is not participation, there must be ACTUAL
participation
* The crime of rebellion is essentially a political
crime. The intention of the rebel is to substitute * There must be a public apprising and taking up
himself in place of those who are in power. His of arms for the specified purpose or purposes
method of placing himself in authority with the mentioned in Article 134. The acts of the
use of violence, duress or intimidation, accused who is not a member of the Hukbalahap
assassination or the commission of common organization of sending cigarettes and food
crimes like murder, kidnapping, arson, robbery supplies to a Huk leader; the changing of dollars
and other heinous crimes in what we call into pesos for a top level communist; and the
rebellion. helping of Huks in opening accounts with the
bank of which he was an official, do not
 REBELLION used where the object of the constitute Rebellion. (Carino vs. People, et al.,
movement is completely to overthrow and 7 SCRA 900).
supersede the existing government
 Not necessary that there is killing, mere
 INSURRECTION refers to a movement which threat of removing Phil is sufficient
seeks merely to effect some change of minor
importance to prevent the exercise of gov’t * Rebellion may be committed even without a
authority w/ respect to particular matters or single shot being fired. No encounter needed.
subjects Mere public uprising with arms enough.

 The phrase “to remove allegiance from the  Rebellion cannot be complexed with any
government’ is used to emphasize that the other crime.
object of the uprising could be limited to
certain areas, like isolating a barangay or > Common crimes perpetrated in furtherance of a
municipality or a province in its loyalty to the political offense are divested of their character as
duly constituted government or the national “common” offenses and assume the political
government. complexion of the main crime which they are mere
ingredients, and consequently, cannot be
* Allegiance is a generic term which includes punished separately from the principal offense, or
loyalty, civil obedience and civil service. complexed with the same.

* The law on rebellion however, does not speak ORTEGA OPINION:

only of allegiance or loss of territory. It also
includes the efforts of the rebel to deprive the Rebellion can now be complexed with
President of the Philippines of the exercise of his common crimes. Not long ago, the
power to enforce the law, to exact obedience of Supreme Court, in Enrile v. Salazar, 186
laws and regulations duly enacted and SCRA 217, reiterated and affirmed the
promulgated by the duly constituted authorities. rule laid down in People v. Hernandez,
99 Phil 515, that rebellion may not be
 Actual clash of arms w/ the forces of the complexed with common crimes which are
gov’t, not necessary to convict the accused committed in furtherance thereof because
who is in conspiracy w/ others actually they are absorbed in rebellion. In view of
taking arms against the gov’t said reaffirmation, some believe that it has
been a settled doctrine that rebellion
 Purpose of the uprising must be shown but it cannot be complexed with common crimes,
is not necessary that it be accomplished such as killing and destruction of property,
committed on the occasion and in
 A change of government w/o external furtherance thereof.
participation
This thinking is no longer correct; there is no legal serious violence, exacting contributions or
basis for such rule now. diverting public funds from the lawful purpose for
which they have been appropriated …”
The statement in People v. Hernandez that
common crimes committed in furtherance of Hence, overt acts which used to be punished as
rebellion are absorbed by the crime of rebellion, components of the crime of rebellion have been
was dictated by the provision of Article 135 of the severed therefrom by Republic Act No. 6968. The
Revised Penal Code prior to its amendment by legal impediment to the application of Article 48 to
the Republic Act No. 6968 (An Act Punishing the rebellion has been removed. After the
Crime of Coup D’etat), which became effective on amendment, common crimes involving killings,
October 1990. Prior to its amendment by and/or destructions of property, even though
Republic Act No. 6968, Article 135 punished committed by rebels in furtherance of rebellion,
those “who while holding any public office or shall bring about complex crimes of rebellion with
employment, take part therein” by any of these murder/homicide, or rebellion with robbery, or
acts: engaging in war against the forces of rebellion with arson as the case may be.
Government; destroying property; committing
serious violence; exacting contributions, diverting To reiterate, before Article 135 was amended, a
funds for the lawful purpose for which they have higher penalty is imposed when the offender
been appropriated. engages in war against the government. "War"
connotes anything which may be carried out in
Since a higher penalty is prescribed for the crime pursuance of war. This implies that all acts of
of rebellion when any of the specified acts are war or hostilities like serious violence and
committed in furtherance thereof, said acts are destruction of property committed on occasion
punished as components of rebellion and, and in pursuance of rebellion are component
therefore, are not to be treated as distinct crimes. crimes of rebellion which is why Article 48 on
The same acts constitute distinct crimes when complex crimes is inapplicable. In amending
committed on a different occasion and not in Article135, the acts which used to be component
furtherance of rebellion. In short, it was because crimes of rebellion, like serious acts of violence,
Article 135 then punished said acts as have been deleted. These are now distinct crimes.
components of the crime of rebellion that The legal obstacle for the application of Article 48,
precludes the application of Article 48 of the therefore, has been removed. Ortega says
Revised Penal Code thereto. In the eyes of the legislators want to punish these common crimes
law then, said acts constitute only one crime and independently of rebellion. Ortega cites no case
that is rebellion. The Hernandez doctrine was overturning Enrile v. Salazar.
reaffirmed in Enrile v. Salazar because the text of
Article 135 has remained the same as it was  However, illegal possession of firearms in
when the Supreme Court resolved the same issue furtherance of rebellion is distinct from the
in the People v. Hernandez. So the Supreme crime of rebellion.
Court invited attention to this fact and thus
stated: * The offense of illegal possession of firearm is a
malum prohibitum, in which case, good
“There is a an apparent need to restructure the faith and absence of criminal intent are
law on rebellion, either to raise the penalty not valid defenses.
therefore or to clearly define and delimit the other
offenses to be considered absorbed thereby, so  Furthermore, it is a continuing crime such
that it cannot be conveniently utilized as the along with the crime of conspiracy or
umbrella for every sort of illegal activity proposal to commit such
undertaken in its name. The court has no power
to effect such change, for it can only interpret the  A private crime may be committed during
law as it stands at any given time, and what is rebellion. Examples: killing, possessions of
needed lies beyond interpretation. Hopefully, firearms, illegal association are absorbed.
Congress will perceive the need for promptly Rape, even if not in furtherance of rebellion
seizing the initiative in this matter, which is purely cannot be complexed
within its province.”
 If killing, robbing were done for private
Obviously, Congress took notice of this purposes or for profit, without any political
pronouncement and, thus, in enacting Republic motivation, the crime would be separately be
Act No. 6968, it did not only provide for the punished and would not be embraced by
crime of coup d’etat in the Revised Penal Code rebellion (People v. Fernando)
but moreover, deleted from the provision of Article
135 that portion referring to those –  Person deemed leader of rebellion in case he
is unknown:
“…who, while holding any public office or Any person who in fact:
employment takes part therein [rebellion or a. directed the others
insurrection], engaging in war against the forces of b. spoke for them
government, destroying property or committing
 c. signed receipts and other documents to the continued possession of governmental
issued in their name powers. It may be committed singly or collectively
d. performed similar acts on behalf of the and does not require a multitude of people.
rebels
 The objective may not be to overthrow the
Distinctions between rebellion and sedition government but only to destabilize or paralyze
the government through the seizure of
(1) As to nature facilities and utilities essential to the
continued possession and exercise of
In rebellion, there must be taking up or governmental powers. It requires as principal
arms against the government. offender a member of the AFP or of the PNP
organization or a public officer with or without
In sedition, it is sufficient that the public civilian support. Finally, it may be carried out
uprising be tumultuous. not only by force or violence but also through
stealth, threat or strategy.
(2) As to purpose
How do you distinguish between coup d’etat
In rebellion, the purpose is always and rebellion?
political.
Rebellion is committed by any person whether a
* In sedition, the purpose may be political or private individual or a public officer whereas in
social. Example: the uprising of squatters coup d’etat, the offender is a member of the
against Forbes park residents. The purpose in military or police force or holding a public office
sedition is to go against established government, or employment.
not to overthrow it.
In rebellion, the object is to alienate the allegiance
of a people in a territory, whether wholly or
Article 134-A partially, from the duly constituted government;
COUP D’ ETAT in coup d’etat, the object or purpose is to seize or
diminish state power.
 ELEMENTS:
a. Swift attack In both instances, the offenders intend to
substitute themselves in place of those who are
b. Accompanied by violence, in power.
intimidation, threat, strategy or stealth
Treason Rebelli Coup Sedition
c. Directed against: (114) on d’etat (139)
(134) (134-
1. duly constituted authorities A)
Natur Crime Crime Crime Crime
2. any military camp or installation against against agains against
National Public t Public
3. communication networks or public Security Order Public Order
utilities Order
Overt levying Public See Rising
4. other facilities needed for the exercise war uprisin article. publicly or
and continued possession of power against g tumultuo
the gov’t; A usly
d. Singly or simultaneously carried out OR ND (caused by
anywhere in the Philippines Adherence Taking more than
e. Committed by any person or persons and up 3 armed
belonging to the military or police or giving arms men or
holding any public office or aid or against provided
employment; with or without civilian comfort the with
support or participation to gov’t means of
enemie violence)
f. With or without civilian support or s
participation Purpo Deliver See Seizing See
se of the gov’t article. or enumerati
g. Purpose of seizing or diminishing object to enemy dimini on in
state power ive during shing article.
war state
* The essence of the crime is a swift attack upon power.
the facilities of the Philippine government, Article 135
military camps and installations, communication PENALTIES
networks, public utilities and facilities essential
 Who are liable? separately punished and would not be absorbed
a. Any person who: in the rebellion.
1. Promotes
2. Maintains
3. heads a rebellion or insurrection Article 136
CONSPIRACY TO COMMIT COUP D’ ETAT,
b. Any person who, while holding any public REBELLION OR INSURRECTION
office or employment, takes part therein
1. engaging in war against the forces of  ELEMENTS:
the gov’t a. 2 more persons come to an agreement
2. destroying property or committing to rise publicly and take arms
serious violence against the government
3. exacting contributions or diverting
public funds from the lawful purpose b. For any of the purposes of rebellion
for which they have been
appropriated c. They decide to commit it
c. Any person merely participating or
executing the command of other in a
rebellion PROPOSAL TO COMMIT COUP D’ ETAT,
REBELLION OR INSURRECTION (136)
* When conspiracy is present in the commission
of the crime, the act of one is the act of all. In  ELEMENTS:
committing rebellion and coup d’etat, even if
conspiracy as a means to commit the crime is a. A person who has decided to rise
established, the principal of criminal liability publicly and take arms the
under Article 17 of the Revised Penal Code is not government
followed.
b. For any of the purposes of rebellion
In Government Not in Government
Service Service c. Proposes its execution to some other
Anyone who leads, Anyone who participates person/s
directs, commands or in an manner,
others to undertake a supports, finances,  Organizing a group of soldiers, soliciting
coup. abets, aids in a coup. membership in, and soliciting funds for the
organization show conspiracy to overthrow
 Serious violence is that inflicted upon the gov’t
civilians, which may result in homicide. It is
not limited to hostilities against the armed  The mere fact of giving and rendering
force. speeches favoring Communism would not
make the accused guilty of conspiracy if
 Diverting public funds is malversation there’s no evidence that the hearers then and
absorbed in rebellion there agreed to rise up in arms against the
gov’t
NOTES:
> Public officer must take active part because  Conspiracy must be immediately prior to
mere silence or omission not punishable in rebellion
rebellion  If it is during the rebellion, then it is already
taking part in it.
> It is not a defense in rebellion that the accused
never took the oath of allegiance to, or that they Article 137
never recognized the government DISLOYALTY OF PUBLIC OFFICERS AND
EMPLOYEES
> Rebellion cannot be complexed with murder
and other common crimes committed in  ACTS PUNISHED:
pursuance of the movement to overthrow the a. Failing to resist rebellion by all the
government means in their power

* Subversion, just like the crimes of rebellion, b. Continuing to discharge the duties of
conspiracy or proposal to commit the crimes of their offices under the control of
rebellion or subversion and crimes or offenses rebels
committed in furtherance thereof constitute
direct assaults against the State and are in the c. Accepting appointment to office
nature of continuing crimes ( Umil vs. Ramos). under rebels

> Killing, robbing etc for private persons or for  Presupposes existence of rebellion
profit, without any political motivation, would be
 rebellion is inherent to the graver crime of
 Must not be in conspiracy with rebels or rebellion.
coup plotters

 If there are means to prevent the rebellion Proposal to Commit Inciting to

but did not resist it, then there’s disloyalty. If Rebellion (136) Rebellion (138)
there are no means, no fault The person who Not required that the
proposes has decided to offender has decided
 If position is accepted in order to protect the commit rebellion. to commit rebellion.
people, not covered by this The person who The inciting is done
proposes the execution publicly.
 The collaborator must not have tried to of the crime uses secret
impose the wishes of the rebels on the means.
people.
Article 139
* Disloyalty as a crime is not limited to rebellion SEDITION
alone but should now include the crime of coup
d’etat. Rebellion is essentially a crime committed  ELEMENTS:
by private individuals while coup d’etat is a crime a. That the offenders rise –
that should be classified as a crime committed by
public officers like malversation, bribery, 1. Publicly (if no public uprising =
dereliction of duty and violations of the anti-Graft tumult and other disturbance of
and Corrupt Practices Act. public order)

* If the public officer or employee, aside from 2. Tumultuously (vis-à-vis rebellion

being disloyal, does or commits acts constituting where there must be a taking of arms)
the crime of rebellion or coup d’etat, he will no
longer be charged for the simple crime of b. That they employ force, intimidation,
disloyalty but he shall be proceeded against for or other means outside of legal
the grave offense of rebellion or coup d’etat. methods

c. That the offenders employ any of

Article 138 those means to attain any of the
INCITING TO REBELLION OR INSURRECTION following objects:

 ELEMENTS: 1. to prevent the promulgation or

a. That the offender does not take arms execution of any law or the
or is not in open hostility against the holding of any popular election
government
2. to prevent the national
b. That he incites others to the government, or any provincial or
execution of any of the acts of municipal government, or any
rebellion public thereof from freely
exercising its or his functions, or
c. That the inciting is done by means of prevent the execution of any
speeches, proclamations, writings, administrative order
emblems, banners or other
representations tending to the same 3. to inflict any act or hate or
end revenge upon the person or
property of any public officer or
 Intentionally calculated to seduce others to employee
rebellion
4. to commit for any political or
 There must be uprising to take up arms and social end, any act of hate or
rise publicly for the purposes indicated in Art revenge against private persons
134 or any social class (hence, even
private persons may be offended
* One who promotes, maintains or heads a parties)
rebellion and who act at the same time incites or
influences others to join him in his war efforts 5. to despoil, for any political or
against the duly constituted government cannot social end, any person,
be held criminally liable for the crime of inciting municipality or province, or the
to rebellion because, as the principal to the crime national government of all its
of rebellion, the act of inciting to commit a property or any part thereof
 Sedition: raising of commotion or the right of the people to assemble and petition
disturbances in the State. Its ultimate object the government for redress of grievance.
is a violation of the public peace or at least
such measures that evidently engenders it.  The demonstrations conducted or held by the
citizenry to protest certain policies of the
 The crime of sedition is committed by rising government is not a crime. But when the
publicly and tumultuously. The two elements protest in manifested in the form of rallies
must concur. where the participants, in order to attain
their objective of overcoming the will of the
 The crime of sedition does not contemplate the government, resort to force or violence, the
taking up of arms against the government mantle of protection guaranteed under the
because the purpose of this crime is not the Constitution to express their dissent
overthrow of the government. Notice from the peacefully, shall cease to exist, as in the
purpose of the crime of sedition that the meantime, the participants have encroached
offenders rise publicly and create commotion or stayed in the domain or realm of criminal
and disturbance by way of protest to express law.
their dissent and obedience to the
government or to the authorities concerned.
This is like the so-called civil disobedience Article 141.
except that the means employed, which is Conspiracy to Commit Sedition
violence, is illegal.
* In this crime, there must be an agreement and
 Difference from rebellion – object or a decision to rise publicly and tumultuously to
purpose of the uprising. attain any of the objects of sedition.

For sedition – sufficient that uprising is * There is no proposal to commit sedition.

tumultuous. In rebellion – there must be taking
up of arms against the government. * The conspiracy must be to prevent the
promulgation or execution of any law or the
Sedition – purpose may be either political or holding of any popular election. It may also be a
social. In rebellion – always political conspiracy to prevent national and local public
officials from freely exercising their duties and
“TUMULTUOUS” is a situation wherein the functions, or to prevent the execution of an
disturbance or confusion is caused by at least administrative order.
four persons. There is no requirement that the
offenders should be armed. Article 142
INCITING TO SEDITION
 Preventing public officers from freely
exercising their functions  ELEMENTS:
a. That the offender does not take a
 In sedition – offender may be a private or direct part in the crime of sedition
public person (Ex. Soldier)
b. That he incites others to the
 Public uprising and the object of sedition accomplishment of any of the acts
must concur which constitute sedition (134)

 Q: Are common crimes absorbed in sedition? c. That the inciting is done by means of
speeches, proclamations, writing,
In P v. Umali, SC held that NO. Crimes committed emblems, cartoons, banners, or other
in that case were independent of each other. representations tending to the same
end (purpose: cause commotion not
 Preventing election through legal means – exactly against the government; actual
NOT sedition disturbance not necessary)

 But when sugar farmers demonstrated and  Different acts of inciting to sedition:
destroyed the properties of sugar barons –
sedition a. Inciting others to the accomplishment of
any of the acts which constitute sedition
 Persons liable for sedition: by means of speeches, proclamations,
a. leader of the sedition, and writings, emblems etc.
b. other persons participating in the
sedition b. Uttering seditious words or speeches
which tend to disturb the public peace or
* The objective of the law in criminalizing sedition writing, publishing, or circulating
is to put a limit to the freedom of expression or scurrilous [vulgar, mean, libelous] libels
against the government or any of the
 duly constituted authorities thereof, * The crime is against popular representation
which tend to disturb the public peace because it is directed against officers whose
primary function is to meet and enact laws.
c. Knowingly concealing such evil practices When these legislative bodies are prevented from
meeting and performing their duties, the system
 When punishable: of government is disturbed. The three branches
a. when they tend to disturb or obstruct of government must continue to exist and
any lawful officer in executing the perform their duties.
functions of his office; or
 Chief of Police and mayor who prevented the
b. when they tend to instigate others to meeting of the municipal council are liable
cabal and meet together for unlawful under Art 143, when the defect of the
purposes; or meeting is not manifest and requires an
investigation before its existence can be
c. when they suggest or incite rebellious determined.
conspiracies or riots; or
d. when they lead or tend to stir up the Article 144
people against the lawful authorities or to DISTURBANCE OF PROCEEDINGS
disturb the peace of the community, the
safety and order of the government  ELEMENTS:
a. That there be a meeting of Congress
* Only non-participant in sedition may be liable. or any of its committees,
constitutional commissions or
* Inciting to sedition is an element of sedition. It committees or divisions thereof, or of
cannot be treated as a separate offense against any provincial board or city or
one who is a part of a group that rose up publicly municipal council or board
and tumultuously and fought the forces of
government. b. That the offender does any of the
following acts
* Considering that the objective of sedition is to
express protest against the government and in 1. He disturbs any of such meetings
the process creating hate against public officers,
any act that will generate hatred against the 2. He behaves while in the presence of
government or a public officer concerned or a any such bodies in such a manner as
social class may amount to Inciting to sedition. to interrupt its proceedings or to
Article 142 is, therefore, quite broad. impair the respect due it

* The mere meeting for the purpose of discussing * The disturbance can be in the form of
hatred against the government is inciting to utterances, speeches or any form of expressing
sedition. Lambasting government officials to dissent which is not done peacefully but
discredit the government is Inciting to sedition. implemented in such a way that it substantially
But if the objective of such preparatory actions is interrupts the meeting of the assembly or
the overthrow of the government, the crime is adversely affects the respect due to the assembly
inciting to rebellion. of its members.

 Complaint must be filed by member of the

CRIMES AGAINST POPULAR Legislative body. Accused may also be
REPRESENTATION punished for contempt.

Article 143 Article 145

ACTS TENDING TO PREVENT THE MEETING VIOLATION OF PARLIAMENTARY IMMUNITY
OF CONGRESS AND SIMILAR BODIES
 Acts punishable:
 ELEMENTS: a. By using force, intimidation, threats,
a. That there be a projected or actual or frauds to prevent any member of
meeting of Congress or any of its Congress from –
committees or subcommittees,
constitutional commissions or 1. attending the meeting of the assembly
committees or division thereof, or of or any of its committees,
any provincial board or city or constitutional commissions or
municipal council or board committees or divisions thereof, or
from
b. That the offender who may be any
persons prevents such meeting by 2. expressing his opinions or
force or fraud
3. casting his vote
 b. By arresting or searching any 1. Meeting, gathering or group of
member thereof while Congress is in a persons whether in a fixed place or
regular or special session, except in moving
case such member has committed a
crime punishable under the code by a 2. Audience whether armed or not, is
penalty higher than prision mayor ( 6 incited to the commission of the
years up ) crime of treason, rebellion or
insurrection, sedition or direct
Elements: assault.
1. That the offender is a public officer or
employee  Not all the persons present at the meeting of
the first form of illegal assembly must be
2. That he arrests or searches any armed
member of Congress
 Persons liable for illegal assembly
3. That Congress, at the time of arrest or a. the organizers or leaders of the meeting
search, is in a regular or special
session b. persons merely present at the meeting
(except when presence is out of curiosity
4. That the member searched has not – not liable)
committed a crime punishable under
the code by a penalty higher than  Responsibility of persons merely present
prision mayor (1987 constitution: at the meeting
privilege from arrest while congress in
session in all offenses punishable by a. if they are not armed, penalty is arresto
not more than 6 years imprisonment). mayor

* Under Section 11, Article VI of the Constitution, b. if they carry arms, like bolos or knives, or
a public officer who arrests a member of licensed firearms, penalty is prision
Congress who has committed a crime punishable correccional
by prision mayor (six years and one day, to 12
years) is not liable Article 145.  Presumptions if person present at the
meeting carries an unlicensed firearm:
* According to Reyes, to be consistent with the
Constitution, the phrase "by a penalty higher a. purpose of the meeting is to commit acts
than prision mayor" in Article 145 should be punishable under the RPC
amended to read: "by the penalty of prision
mayor or higher." b. considered as leader or organizer of the
meeting
* The offender is any person and the offended
party who is a member of Congress, has not * Those who incite the audience, by means of
committed any crime to justify the use of force, speeches, printed matters, and other
threat, intimidation or fraud to prevent him from representation, to commit treason, rebellion or
attending the meeting of Congress. insurrection, sedition or assault a person in
authority, shall be deemed leaders or organizers
of said meeting.
ILLEGAL ASSEMBLIES AND ASSOCIATIONS
 The gravamen of the offense is mere assembly
Article 146 of or gathering of people for illegal purpose
ILLEGAL ASSEMBLIES punishable by the Revised Penal Code.
Without gathering, there is no illegal
 Two (2) Types of illegal assemblies: assembly. If unlawful purpose is a crime
under a special law, there is no illegal
a. Meeting of the first form assembly. For example, the gathering of drug
pushers to facilitate drug trafficking is not
1. Meeting, gathering or group of illegal assembly because the purpose is not
persons whether in a fixed place or violative of the Revised Penal Code but of The
moving Dangerous Drugs Act of 1972, as amended,
which is a special law.
2. purpose : to commit any of crimes
punishable under the code Two forms of illegal assembly

3. meeting attended by armed persons (1) No attendance of armed men, but persons in
the meeting are incited to commit treason,
b. Meeting of the second form rebellion or insurrection, sedition or assault
 upon a person in authority. When the illegal are punished membership in
purpose of the gathering is to incite people to the association
commit the crimes mentioned above, the Persons liable: leaders Founders,
presence of armed men is unnecessary. The and those present directors,
mere gathering for the purpose is sufficient to president and
bring about the crime already. members

(2) Armed men attending the gathering – If the Public morals refers to crimes punished under
illegal purpose is other than those mentioned Title Six of the Revised Penal Code, namely,
above, the presence of armed men during the gambling, grave scandal, prostitution and
gathering brings about the crime of illegal vagrancy.
assembly.

Example: Persons conspiring to rob a bank were ASSAULT, RESISTANCE AND DISOBEDIENCE
arrested. Some were with firearms. Liable for
illegal assembly, not for conspiracy, but for Article 148
gathering with armed men. DIRECT ASSAULT

Distinction between illegal assembly and  ELEMENTS OF THE 1ST FORM OF DIRECT
illegal association ASSAULT
a. That the offender employs force or
In illegal assembly, the basis of liability is the intimidation.
gathering for an illegal purpose which constitutes
a crime under the Revised Penal Code. b. That the aim of the offender is to
attain any of the purposes of the
In illegal association, the basis is the formation of crime of rebellion or any of the
or organization of an association to engage in an objects of the crimes of sedition.
unlawful purpose which is not limited to a (victim need not be person in authority)
violation of the Revised Penal Code. It includes a
violation of a special law or those against public c. That there is no public uprising.
morals. Meaning of public morals: inimical to
public welfare; it has nothing to do with decency., Example of the first form of direct assault:
not acts of obscenity.
Three men broke into a National Food Authority
Article 147 warehouse and lamented sufferings of the people.
ILLEGAL ASSOCIATIONS They called on people to help themselves to all
the rice. They did not even help themselves to a
 ELEMENTS: single grain.
a. Organized totally or partially for the
purpose of committing any of the The crime committed was direct assault. There
crimes in RPC was no robbery for there was no intent to gain.
Or The crime is direct assault by committing acts of
b. For some purpose contrary to public sedition under Article 139 (5), that is, spoiling of
morals the property, for any political or social end, of any
person municipality or province or the national
 Persons liable: government of all or any its property, but there is
a. founders, directors and president of the no public uprising.
association
b. mere members of the association  ELEMENTS OF THE 2ND FORM OF DIRECT
ILLEGAL ASSEMBLY ILLEGAL ASSAULT:
(146) ASSOCIATION a. That the offender (a) makes an
(147) attack, (b) employs force, (c) makes a
Must be an actual No need for such serious intimidation, or (d) makes a
meeting of armed persons serious resistance.
to commit any of the
crimes punishable under b. That the person assaulted is a person
the RPC, or of individuals in authority or his agent.
who, although not armed,
are incited to the c. That at the time of the assault the
commission of treason, person in authority or his agent (a) is
rebellion, sedition or engaged in the actual performance of
assault upon a person in official duties (motive is not essential),
authority of his agent. or that he is assaulted (b) by reason
It is the meeting and the Act of forming or of the past performance of official
attendance at such that organizing and duties (motive is essential).
 d. That the offender knows that the one Force Employed Intimidation
he is assaulting is a person in /Resistance
authority or his agent in the exercise Person in Need not be Serious
of his duties (with intention to offend, Authority serious
injure or assault). Agent Must be of serious Serious
character
e. That there is no public uprising.
 PERSON IN AUTHORITY: any person
* Crime of direct assault can only be committed directly vested with jurisdiction (power or
by means of dolo. It cannot be committed by authority to govern and execute the laws)
culpa. whether as an individual or as a member of
some court or governmental corporation,
 Always complexed with the material board or commission
consequence of the act (e.g. direct assault
with murder) except if resulting in a light  A barangay captain is a person in authority,
felony, in which case, the consequence is so is a Division Superintendent of schools,
absorbed President of Sanitary Division and a teacher

* The crime is not based on the material * In applying the provisions of Articles 148 and
consequence of the unlawful act. The crime of 151, teachers, professors, and persons charged
direct assault punishes the spirit of lawlessness with the supervision of public or duly recognized
and the contempt or hatred for the authority or the private schools, colleges and universities and
rule of law. lawyers in the actual performance of their duties
* To be specific, if a judge was killed while he was or on the occasion of such performance, shall be
holding a session, the killing is not the direct deemed a person in authority.
assault, but murder. There could be direct
assault if the offender killed the judge simply  AGENT: is one who, by direct provision of law
because the judge is so strict in the fulfillment of or by election or by appointment by
his duty. It is the spirit of hate which is the competent authority, is charged with the
essence of direct assault. maintenance of public order and the
protection and security of life and property.
* So, where the spirit is present, it is always (Example. Barrio councilman and any person
complexed with the material consequence of the who comes to the aid of the person in
unlawful act. If the unlawful act was murder or authority, policeman, municipal treasurer,
homicide committed under circumstance of postmaster, sheriff, agents of the BIR,
lawlessness or contempt of authority, the crime Malacañang confidential agent)
would be direct assault with murder or homicide,
as the case may be. In the example of the judge  Even when the person in authority or the
who was killed, the crime is direct assault with agent agrees to fight, still direct assault.
murder or homicide.
 When the person in authority or the agent
* The only time when it is not complexed is when provoked/attacked first, innocent party is
material consequence is a light felony, that is, entitled to defend himself and cannot be held
slight physical injury. Direct assault absorbs the liable for assault or resistance nor for
lighter felony; the crime of direct assault can not physical injuries, because he acts in
be separated from the material result of the act. legitimate self-defense
So, if an offender who is charged with direct
assault and in another court for the slight physical * The offended party in assault must not be the
Injury which is part of the act, acquittal or aggressor. If there is unlawful aggression
conviction in one is a bar to the prosecution in the employed by the public officer, any form of
other. resistance which may be in the nature of force
against him will be considered as an act of
 Hitting the policeman on the chest with fist is legitimate defense. (People vs. Hernandez, 59
not direct assault because if done against an Phil. 343)
agent of a person in authority, the force
employed must be of serious character  There can be no assault upon or
disobedience to one authority by another
 The force employed need not be serious when when they both contend that they were in the
the offended party is a person in authority exercise of their respective duties.
(ex. Laying of hands)
* The offender and the offended party are both
 The intimidation or resistance must be public officers. The Supreme Court said that
serious whether the offended party is an assault may still be committed, as in fact the
agent only or a person in authority (ex. offender is even subjected to a greater penalty
Pointing a gun) (U.S. vs. Vallejo, 11 Phil. 193).
  Complex crime of direct assault with
 When assault is made by reason of the homicide or murder, or with serious physical
performance of his duty there is no need for injuries.
actual performance of his official duty when
attacked * If the crime of direct assault is committed with
In direct assault of the first form, the stature of the use of force and it resulted in the infliction of
the offended person is immaterial. The crime is slight physical injuries, the latter shall not be
manifested by the spirit of lawlessness. considered as a separate offense. It shall be
absorbed by the greater crime of direct assault.
In the second form, you have to distinguish a (People vs. Acierto, 57 Phil. 614)
situation where a person in authority or his agent
was attacked while performing official functions,  Direct assault cannot be committed during
from a situation when he is not performing such rebellion.
functions.
May direct assault be committed upon a
 If attack was done during the exercise of private individual? Yes. When a private person
official functions, the crime is always direct comes to the aid of a person in authority, and he
assault. It is enough that the offender knew is likewise assaulted. Under Republic Act No.
that the person in authority was performing 1978,
an official function whatever may be the
reason for the attack, although what may  a private person who comes to the aid of a
have happened was a purely private affair. person in authority is by fiction of law
deemed or is considered an agent of a person
* On the other hand, if the person in authority or in authority.
the agent was killed when no longer performing
official functions, the crime may simply be the Article 149
material consequence of he unlawful act: murder INDIRECT ASSAULT
or homicide. For the crime to be direct assault,
the attack must be by reason of his official  ELEMENTS:
function in the past. Motive becomes important a. That a person in authority or his
in this respect. Example, if a judge was killed agent is the victim of any of the forms
while resisting the taking of his watch, there is no of direct assault defined in ART. 148.
direct assault.
b. That a person comes to the aid of
In the second form of direct assault, it is also such authority or his agent.
important that the offended knew that the person
he is attacking is a person in authority or an agent c. That the offender makes use of force
of a person in authority, performing his official or intimidation upon such person
functions. No knowledge, no lawlessness or coming to the aid of the authority or
contempt. his agent.

For example, if two persons were quarreling and a  Indirect assault can be committed only
policeman in civilian clothes comes and stops when a direct assault is also committed
them, but one of the protagonists stabs the
policeman, there would be no direct assault  To be indirect assault, the person who
unless the offender knew that he is a policeman. should be aided is the agent (not the
person in authority because it is already
In this respect it is enough that the offender direct assault, the person coming to the aid
should know that the offended party was of the person in authority being considered
exercising some form of authority. It is not as an agent and an attack on the latter is
necessary that the offender knows what is meant already direct assault). Example. Aiding a
by person in authority or an agent of one because policeman under attack.
ignorantia legis non excusat.
* The victim in indirect assault should be a private
 Circumstances qualifying the offense person who comes in aid of an agent of a person
(Qualified Assault): in authority. The assault is upon a person who
a. when the assault is committed with a comes in aid of the agent of a person in
weapon authority. The victim cannot be the person in
authority or his agent.
b. when the offender is a public officer or
employee * Take note that under Article 152, as amended,
when any person comes in aid of a person in
c. when the offender lays hand upon a authority, said person at that moment is no longer
person in authority a civilian – he is constituted as an agent of the
person in authority. If such person were the one
attacked, the crime would be direct assault
 performance of official duty gives a
lawful order to the offender.
Article 150
DISOBEDIENCE TO SUMMONS b. That the offender disobeys such agent
of a person in authority.
 Acts punishable:
a. refusing without legal excuse to obey c. That such disobedience is not of a
summons serious nature.
US vs. Ramayrat, 22 Phil. 183
b. refusing to be sworn or placed under The Supreme Court held that: “the violation does
affirmation not refer to resistance or disobedience to the legal
provisions of the law, nor to judicial decisions
c. refusing to answer any legal inquiry defining or declaring the rights and obligations of
to produce books, records etc. the parties for the same give reliefs only in the
form of civil actions. Rather, the disobedience or
d. restraining another from attending resistance is to the orders directly issued by the
as witness in such body authorities in the exercise of their official duties.”

e. inducing disobedience to a summons Direct Assault (148) Resistant and

or refusal to be sworn Disobedience to a
Person in Authority
* The act punished is refusal, without legal or Agents of such
excuse, to obey summons issued by the House of Person (151)
Representatives or the Senate. If a Constitutional PIA or his agent must be PIA or his agent must
Commission is created, it shall enjoy the same engaged in the be in the actual
privilege. performance of official performance of his
duties or that he is duties.
* The exercise by the legislature of its contempt assaulted
power is a matter of self-preservation, Direct assault is Committed by resisting
independent of the judicial branch. The contempt committed in 4 ways – or seriously disobeying
power of the legislature is inherent and sui by attacking, employing a PIA or his agent.
generis. force, and seriously
resisting a PIA or his
* The power to punish is not extended to the local agent.
executive bodies. The reason given is that local Use of force against an Use of force against an
legislative bodies are but a creation of law and agent of PIA must be agent of a PIA is not so
therefore, for them to exercise the power of serious and deliberate. serious; no manifest
contempt, there must be an express grant of the intention to defy the
same. law and the officers
enforcing it.
Article 151
RESISTANCE/DISOBEDIENCE TO A PERSON * In both resistance against an agent of a person
IN AUTHORITY OR THE AGENT OF SUCH in authority and direct assault by resisting an
PERSON (par. 1) agent of a person in authority, there is force
employed, but the use of force in resistance is not
 ELEMENTS: so serious, as there is no manifest intention to
a. That a person in authority or his defy the law and the officers enforcing it.
agent is engaged in the performance
of official duty or gives a lawful * The attack or employment of force which gives
order to the offender. rise to the crime of direct assault must be serious
and deliberate; otherwise, even a case of simple
b. That the offender resists or seriously resistance to an arrest, which always requires the
disobeys such person in authority or use of force of some kind, would constitute direct
his agent. assault and the lesser offense of resistance or
disobedience in Article 151 would entirely
c. That the act of the offender is not disappear.
included in the provisions of arts.
148, 149 and 150. But when the one resisted is a person in authority,
the use of any kind or degree of force will give rise
to direct assault.
SIMPLE DISOBEDIENCE (par. 2)
If no force is employed by the offender in resisting
 ELEMENTS: or disobeying a person in authority, the crime
a. That an agent of a person in committed is resistance or serious disobedience
authority is engaged in the under the first paragraph of Article 151.
Article 152 giving the assistance, as earlier discussed,
PERSONS IN AUTHORITY/AGENTS OF the crime committed is indirect assault.
PERSONS IN AUTHORITY:

 PERSONS IN AUTHORITY – any person CRIMES AGAINST PUBLIC DISORDERS

directly vested with jurisdiction, whether as
an individual or as a member of some court Article 153
or governmental corporation, board or TUMULTS AND OTHER DISTURBANCES OF
commission. PUBLIC ORDER

 Examples of Persons in Authority :  TYPES:

a. Barangay captain a. Causing any serious disturbance in a
b. Barangay chairman public place, office or establishment
c. Municipal mayor
d. Provincial fiscal b. Interrupting or disturbing public
e. Justice of the peace performances, functions, gatherings
f. Municipal councilor or peaceful meetings, if the act is not
g. Teachers included in Art 131 and 132 (Public
h. Professors Officers interrupting peaceful meetings or
i. Persons charged with the supervision of religious worship).
public or duly recognized private schools,
colleges and universities c. Making any outcry tending to incite
j. Lawyers in the actual performance of rebellion or sedition in any meeting,
their professional duties or on the association or public place
occasion of such performance
d. Displaying placards or emblems
 AGENT OF PERSON IN AUTHORITY – any which provoke a disturbance of
person who, by direct provision of law or by public order in such place
election or by appointment by competent
authority, is charged with the maintenance of e. Burying with pomp the body of a
public order and the protection and security person who has been legally
of life and property. executed.

 Examples of agents of PIA :  If the act of disturbing or interrupting a

a. Barrio councilman meeting or religious ceremony is NOT
b. Barrio policeman committed by public officers, or if committed
c. Barangay leader by public officers who are not participants
d. Any person who comes to the aid of therein, this article applies. Art 131 and 132
persons in authority punishes the same acts if committed by public
 Section 388 of the Local Gov’t Code provides officers who areNOT participants in the
that “for purposes of the RPC, the punong meeting
barangay, sangguniang barangay members
and members of the lupong tagapamayapa in  The outcry is merely a public disorder if it is
each barangay shall be deemed as persons in an unconscious outburst which, although
authority in their jurisdictions, while other rebellious or seditious in nature, is not
barangay officials and members who may be intentionally calculated to induce others to
designated by law or ordinance and charged commit rebellion or sedition, otherwise, its
with the maintenance of public order, inciting to rebellion or sedition.
protection and the security of life, property,
or the maintenance of a desirable and  This article should be distinguished from
balanced environment, and any barangay inciting to rebellion or sedition as discussed
member who comes to the aid of persons in under Article 138 and 142. In the former, the
authority shall be deemed AGENT of persons meeting is legal and peaceful. It becomes
in authority. unlawful only because of the outcry made,
which tends to incite rebellion or sedition in
 When the offended party is a person in the meeting. In the latter case, the meeting is
authority and while being assaulted, a unlawful from the beginning and the
private individual comes to his rescue, such utterances made are deliberately articulated
private individual, by operation of law, to incite others to rise publicly and rebel
mutates mutandis becomes an agent of a against the government. What makes it
person in authority. Any assault committed inciting to rebellion or sedition is the act of
against such person is direct assault, and inciting the audience to commit rebellion or
not indirect assault. But if the person sedition.
assaulted is an agent of a person in
authority, and a private individual comes to  TUMULTUOUS – if caused by more than 3
his rescue and is himself assaulted while persons who are armed or provided with
 means of violence (circumstance qualifying or by praising, justifying or extolling
the disturbance/interruption) – “tumultuous any act punished by law, by the same
in character” means or by words, utterances or
speeches
* The essence is creating public disorder. This
crime is brought about by creating serious c. Maliciously publishing or causing
disturbances in public places, public buildings, to be published any official resolution
and even in private places where public functions or document without proper
or performances are being held. authority, or before they have been
published officially
 For a crime to be under this article, it must not
fall under Articles 131 (prohibition, d. Printing, publishing or
interruption, and dissolution of peaceful distributing or (causing the same)
meetings) and 132 (interruption of religious books, pamphlets, periodicals or
worship). leaflets which do not bear the real
printer’s name or which are
* In the act of making outcry during speech classified as anonymous.
tending to incite rebellion or sedition,
the situation must be distinguished * The purpose of the law is to punish the
from inciting to sedition or rebellion. spreading of false information which tends to
cause panic, confusion, distrust and divide
 If the speaker, even before he delivered his people in their loyalty to the duly constituted
speech, already had the criminal intent to authorities.
incite the listeners to rise to sedition, the crime
would be inciting to sedition. However, if the * Actual public disorder or actual damage to the
offender had no such criminal intent, but in credit of the State is not necessary.
the course of his speech, tempers went high
and so the speaker started inciting the Republic Act No. 248 prohibits the reprinting,
audience to rise in sedition against the reproduction or republication of government
government, the crime is disturbance of the publications and official documents without
public order. previous authority
The article also punishes any person who
* The disturbance of the pubic order is tumultuous knowingly publishes official acts or documents
and the penalty is increased if it is brought about which are not officially promulgated.
by armed men. The term “armed” does not refer
to firearms but includes even big stones capable
of causing grave injury. Article 155
ALARMS AND SCANDALS
 It is also disturbance of the public order if a
convict legally put to death is buried with  TYPES:
pomp. He should not be made out as a a. Discharging any firearm, rocket,
martyr; it might incite others to hatred. firecracker, or other explosive within
any town or public place, calculated
 The crime of disturbance of public order may to cause alarm or danger
be committed in a public or private place. If
committed in a private place, the law is b. Instigating or taking active part in
violated only where the disturbance is made any charivari or other disorderly
while a public function or performance is meeting offensive to another or
going on. Without a public gathering in a prejudicial to public tranquility
private place, the crime cannot be committed.
c. Disturbing the public peace while
Article 154 wandering about at night or while
UNLAWFUL USE OF MEANS OF PUBLICATION engaged in any other nocturnal
AND UNLAWFUL UTTERANCES amusement

 TYPES: d. Causing any disturbance or scandal

a. Publishing or causing to be in public places while intoxicated or
published, by means of printing, otherwise, provided the act is not
lithography or any other means of covered by Art 153 (tumult).
publication as news any false news  Understand the nature of the crime of alarms
which may endanger the public order, and scandals as one that disturbs public
or cause damage to the interest or tranquility or public peace. If the annoyance
credit of the State. is intended for a particular person, the crime
is unjust vexation.
b. Encouraging disobedience to the
law or to the constituted authorities
  Charivari – mock serenade or discordant b. That the offender removes therefor
noises made with kettles, tin horns etc, such person, or helps the escape of
designed to deride, insult or annoy such person (if the escapee is serving
final judgement, he is guilty of evasion of
WHEN A PERSON DISCHARGES A FIREARM IN sentence).
PUBLIC, the act may constitute any of the
possible crimes under the Revised Penal Code: c. Offender is a private individual

(1) Alarms and scandals if the firearm when  Prisoner may be detention prisoner or one
discharged was not directed to any sentenced by virtue of a final judgment
particular person;
* Even if the prisoner is in the hospital or asylum
(2) Illegal discharge of firearm under Article or any place for detention of prisoner, as long as
254 if the firearm is directed or pointed he is classified as a prisoner, that is, a formal
to a particular person when discharged complaint or information has been filed in court,
but intent to kill is absent; and he has been officially categorized as a
prisoner, this article applies, as such place is
(3) Attempted homicide, murder, or considered extension of the penal institution.
parricide if the firearm when discharged
is directed against a person and intent to  A policeman assigned to the city jail as guard
kill is present. who while off-duty released a prisoner is
liable here
In this connection, understand that it is not
necessary that the offended party be wounded or * Even if the prisoner returned to the jail after
hit. Mere discharge of firearm towards another several hours, the one who removed him from jail
with intent to kill already amounts to attempted is liable.
homicide or attempted murder or attempted
parricide. It can not be frustrated because the  It may be committed through negligence
offended party is not mortally wounded.
 Circumstances qualifying the offense – is
In Araneta v. Court of Appeals, it was held that committed by means of violence, intimidation
if a person is shot at and is wounded, the or bribery.
crime is automatically attempted  Mitigating circumstance – if it takes place
homicide. Intent to kill is inherent in the outside the penal establishment by taking
use of the deadly weapon. the guards by surprise

(4) Grave Threats – If the * correlate the crime of delivering person from jail
weapon is not discharged but with infidelity in the custody of
merely pointed to another prisoners punished under Articles
223, 224 and 225 of the Revised
(5) Other Light Threats – If drawn in a Penal Code. In both acts, the offender
quarrel but not in self defense may be a public officer or a private
citizen.
 What governs is the result, not the intent
 Do not think that infidelity in the custody of
prisoners can only be committed by a public
officer and delivering persons from jail can
CRIME Nature of Who are only be committed by private person. Both
Crime Liable crimes may be committed by public officers
Tumults and Crime against Private as well as private persons.
other Public Order persons,
Disturbances outsider > In both crimes, the person involved may be a
(153) convict or a mere detention prisoner.
Alarms and Crime against Private
Scandals (155) Public Order persons, * The only point of distinction between the two
outsider crimes lies on whether the offender is the
custodian of the prisoner or not at the time the
prisoner was made to escape.
Article 156
DELIVERING PRISONERS FROM JAILS  If the offender is the custodian at that time,
the crime is infidelity in the custody of
 ELEMENTS : prisoners. But if the offender is not the
a. That there is a person confined in a custodian of the prisoner at that time, even
jail or penal establishment. though he is a public officer, the crime he
committed is delivering prisoners from jail.
LIABILITY OF THE PRISONER OR DETAINEE Article 157
WHO ESCAPED – When these crimes EVASION OF SERVICE OF SENTENCE
are committed, whether infidelity in the
custody of prisoners or delivering  ELEMENTS :
prisoners from jail, the prisoner so a. That the offender is a convict by
escaping may also have criminal final judgment.
liability and this is so if the prisoner is
a convict serving sentence by final b. That he is serving his sentence
judgment. The crime of evasion of which consists in deprivation of
service of sentence is committed by the liberty (destierro included)
prisoner who escapes if such prisoner is
a convict serving sentence by final c. That he evades the service of his
judgment. sentence by escaping during the
term if his sentence. (fact of return
If the prisoner who escapes is only a detention immaterial).
prisoner, he does not incur liability from escaping  By the very nature of the crime, it cannot be
if he does not know of the plan to remove him committed when the prisoner involved is
from jail. But if such prisoner knows of the plot to merely a detention prisoner. But it applies to
remove him from jail and cooperates therein by persons convicted by final judgment with a
escaping, he himself becomes liable for delivering penalty of destierro.
prisoners from jail as a principal by
indispensable cooperation. * A detention prisoner even if he escapes from
confinement has no criminal liability. Thus,
* If three persons are involved – a stranger, the escaping from his prison cell when his case is
custodian and the prisoner – three crimes are still on appeal does not make said prisoner liable
committed: for Evasion of Service of Sentence.
(1) Infidelity in the custody of prisoners;
(2) Delivery of the prisoner from jail; and  In leaving or escaping from jail or prison, that
(3) Evasion of service of sentence. the prisoner immediately returned is
immaterial. It is enough that he left the
It is possible that several crimes may be penal establishment by escaping therefrom.
committed in one set of facts. For instance, His voluntary return may only be mitigating,
assuming that Pedro, the jail warden, agreed with being analogous to voluntary surrender. But
Juan to allow Maria to escape by not locking the the same will not absolve his criminal liability.
gate of the city jail. Provided that Juan comes
across with P5,000.00 pesos as bribe money. The  A continuing offense.
arrangement was not known to Maria but when
she noticed the unlocked gate of the city jail she  Offenders – not minor delinquents nor
took advantage of the situation and escaped. detention prisoners
From the facts given, there is no question that
Pedro, as the jail warden, is liable for the crime of  If escaped within the 15 day appeal period –
infidelity in the custody of the prisoner. He will no evasion
also be able for the crime of bribery. Juan will be
liable for the crime of delivering a prisoner from  No applicable to deportation as the sentence
jail and for corruption of public official under Art.  The crime of evasion of service of sentence
212. If Maria is a sentenced prisoner, she will be may be committed even if the sentence is
liable for evasion of service of sentence under destierro, and this is committed if the convict
Article 157. if she is a detention prisoner, she sentenced to destierro will enter the
commits no crime. prohibited places or come within the
prohibited radius of 25 kilometers to such
places as stated in the judgment.
EVASION OF SENTENCE OR SERVICE
* If the sentence violated is destierro, the penalty
EVASION OF SERVICE OF SENTENCE HAS upon the convict is to be served by way of
THREE FORMS: destierro also, not imprisonment. This is so
(1) By simply leaving or escaping from the because the penalty for the evasion can not be
penal establishment under Article 157; more severe than the penalty evaded.
(2) Failure to return within 48 hours after
having left the penal establishment
 Circumstances qualifying the offense
because of a calamity, conflagration or
(done thru):
mutiny and such calamity, conflagration
a. unlawful entry (by “scaling”)
or mutiny has been announced as
already passed under Article 158;
b. breaking doors, windows, gates, walls,
(3) Violating the condition of conditional
roofs or floors
pardon under Article 159.
 Only those who left and returned within the 48-
c. using picklocks, false keys, disguise, hour period.
deceit, violence or intimidation
 For such event to be considered as a
d. connivance with other convicts or calamity, the President must declared it to be
employees of the penal institution so. He must issue a proclamation to the
effect that the calamity is over. Even if the
* A, a foreigner, was found guilty of violation of events herein mentioned may be considered
the law, and was ordered by the court to be as calamity, there is a need for the Chief
deported. Later on, he returned to the Executive to make such announcement.
Philippines in violation of the sentence. Held: He Absent such declaration. Even if the prisoner
is not guilty of Evasion of Service of Sentence as will return to the penal institution where he
the law is not applicable to offenses executed by was confined, the same is of no moment as in
deportation. (U.S. vs. Loo Hoe, 36 Phil. 867). the meantime he has committed a violation of
the law, not under the present article but for
Article 158 pure evasion of service of sentence under
EVASION OF SERVICE OF SENTENCE ON THE Article 157.
OCCASION OF DISORDERS,
CONFLAGRATIONS, EARTHQUAKES OR  Mutiny – organized unlawful resistance to a
OTHER CALAMITIES superior officer, a sedition, a revolt

 ELEMENTS :  The mutiny referred to in the second form of

a. That the offender is a convict by final evasion of service of sentence does not
judgement who is confined in a penal include riot. The mutiny referred to here
institution. involves subordinate personnel rising against
the supervisor within the penal
b. That there is disorder, resulting from- establishment. One who escapes during a
riot will be subject to Article 157, that is,
1. conflagration, 2. earthquake, or 3. simply leaving or escaping the penal
explosion, or 4. similar catastrophe, or establishment.
5. mutiny , not participated.
 Disarming the guards is not mutiny
c. That the offender evades the service of
his sentence by leaving the penal * Violation attributed to the accused is no longer
institution where he is confined, on the referred to the court for judicial inquiry or
occasion of such disorder or during the resolution. The law has provided sufficient
mutiny. guidelines for the jail warden to follow.

d. That the offender fails to give himself * This disquisition will not apply if the offender
up to the authorities within 48 hours who escapes taking advantage of the calamities
following the issuance of a enumerated herein is apprehended by the
proclamation by the chief executive authorities after 48 hours from the declaration
announcing the passing away of such that the calamity is over. It is only extended to
calamity. one who returns but made inside the 48 hours
delimited by the proclamation. At this stage, the
 The leaving from the penal establishment is violation is not substantive but administrative in
not the basis of criminal liability. It is the nature.
failure to return within 48 hours after the
passing of the calamity, conflagration or
mutiny had been announced. Under Article
158, those who return within 48 hours are Article 159
given credit or deduction from the remaining VIOLATION OF CONDITIONAL PARDON
period of their sentence equivalent to 1/5 of
the original term of the sentence. But if the  ELEMENTS:
prisoner fails to return within said 48 hours, a. That the offender was a convict.
an added penalty, also 1/5, shall be imposed
but the 1/5 penalty is based on the remaining b. That he was granted a conditional
period of the sentence, not on the original pardon by the chief executive.
sentence. In no case shall that penalty
exceed six months. c. That he violated any of the conditions
of such pardon.
 Offender must escape to be entitled to
allowance  Condition extends to special laws – violation
of illegal voting
> Those who did not leave the penal The condition imposed upon the prisoner not to
establishment are not entitled to the 1/5 credit. be guilty of another crime is not limited to those
punishable under the Revised Penal Code. It
includes those punished under Special Law. COMMISSION OF ANOTHER CRIME
(People vs. Corral, 74 Phil. 357).
Article 160
* In violation of conditional pardon, as a rule, the COMMISSION OF ANOTHER CRIME DURING
violation will amount to this crime only if the SERVICE OF PENALTY IMPOSED FOR
condition is violated during the remaining period ANOTHER PREVIOUS OFFENSE-PENALTY:
of the sentence. (quasi-recidivism)

* If the condition of the pardon is violated, the  ELEMENTS

remedy against the accused may be in the form of a. That the offender was already
prosecution under Article 159. it may also be an convicted by final judgement of one
administrative action by referring the violation to offense.
the court of origin and praying for the issuance of
a warrant of arrest justified under Section 64 of b. That he committed a new felony
the Revised Administrative Code. before beginning to serve such
sentence or while serving the same.
 The administrative liability of the convict under
the conditional pardon is different and has  Quasi-recidivism : a person after having
nothing to do with his criminal liability for the been convicted by final judgement shall
evasion of service of sentence in the event that commit a new felony before beginning to
the condition of the pardon has been violated. serve such sentence, or while serving the
Exception: where the violation of the condition same.
of the pardon will constitute evasion of service
of sentence, even though committed beyond the  Second crimes must belong to the RPC, not
remaining period of the sentence. This is when special laws. First crime may be either from
the conditional pardon expressly so provides or the RPC or special laws
the language of the conditional pardon clearly
shows the intention to make the condition  Reiteracion: offender shall have served out
perpetual even beyond the unserved portion of his sentence for the prior offense
the sentence. In such case, the convict may be
required to serve the unserved portion of the  A quasi-recidivist may be pardoned at age 70.
sentence even though the violation has taken Except: Unworthy or Habitual Delinquent
place when the sentence has already lapsed.
 If new felony is evasion of sentence – offender
 Offender must have been found guilty of the is not a quasi-recidivist
subsequent offense before he can be prosecuted
under this Article. But if under Revised Admin  Penalty: maximum period of the penalty for
Code, no conviction necessary. President has the new felony should be imposed
power to arrest, reincarnate offender without
trial * Quasi-recidivism is a special aggravating
circumstance which directs the court to impose
* Article 159 is a distinct felony. It is a substantive the maximum period of the penalty prescribed by
crime. For one to suffer the consequence of its law for the new felony. The court will do away or
violation, the prisoner must be formally charged will ignore mitigating and aggravating
in court. He will be entitled to a full blown circumstances in considering the penalty to be
hearing, in full enjoyment of his right to due imposed. There will be no occasion for the court
process. Only after a final judgment has been to consider imposing the minimum, medium or
rendered against him may he suffer the penalty maximum period of the penalty. The mandate is
prescribed under Article 159 (Torres vs. absolute and is justified by the finding that the
Gonzales, et al., 152 SCRA 292) accused is suffering from some degree of moral
perversity if not total incorrigibility. (People vs.
VIOLATION OF PARDON ORDINARY EVASION Alicia, et al., 95 SCRA 227)
Infringement of To evade the penalty * Quasi-recidivism is an aggravating
conditions/terms of given by the courts – circumstance which cannot be offset by any
President disturbs the public mitigating circumstance. To be appreciated as a
order special aggravating circumstance, it must be
alleged in the information. (People vs. Bautista,
 Two penalties provided: 65 SCRA 460)
a. prision correccional in its minimum period
– if the penalty remitted does not exceed  Quasi-Recidivism may be offset by a special
6 years privileged mitigating circumstance (ex.
Minority)
b. the unexpired portion of his original
sentence – if the penalty remitted is
higher than 6 years
 TITLE FOUR 28. Unfair competition and fraudulent
CRIMES AGAINST PUBLIC INTEREST registration of trade mark or trade name,
or service mark; fraudulent designation
Crimes against public interest of origin, and false description (Art. 189).
1. Counterfeiting the great seal of the
Government of the Philippines (Art. 161); * The crimes in this title are in the nature of
2. Using forged signature or counterfeiting fraud or falsity to the public. The essence of the
seal or stamp (Art. 162); crime under this title is that which defraud the
3. Making and importing and uttering false public in general. There is deceit perpetrated
coins (Art. 163); upon the public. This is the act that is being
4. Mutilation of coins, importation and punished under this title.
uttering of mutilated coins (Art. 164);
5. Selling of false or mutilated coins,
without connivance (Art. 165); Article 161
6. Forging treasury or bank notes or other COUNTERFEITING GREAT SEAL OF
documents payable to bearer, importing GOVERNMENT
and uttering of such false or forged notes
and documents (Art. 166);  TYPES:
7. Counterfeiting, importing and uttering a. Forging the great seal of the
instruments not payable to bearer (Art. Government
167);
8. Illegal possession and use of forged b. Forging the signature of the
treasury or bank notes and other President
instruments of credit (Art. 168);
9. Falsification of legislative documents c. Forging the stamp of the
(Art. 170); President
10. Falsification by public officer, employee
or notary (Art. 171);  When the signature of the President is forged,
11. Falsification by private individuals and it is not falsification but forging of signature
use of falsified documents (Art. 172); under this article
12. Falsification of wireless, cable, telegraph  Signature must be forged, others signed it –
and telephone messages and use of said not the President.
falsified messages (Art. 173);
13. False medical certificates, false
certificates of merit or service (Art. 174); Article 162
14. Using false certificates (Art. 175); USING FORGED SIGNATURE OR
15. Manufacturing and possession of COUNTERFEIT SEAL OR STAMP
instruments or implements for
falsification (Art. 176); ELEMENTS:
16. Usurpation of authority or official a. That the great seal of the republic
functions (Art. 177); was counterfeited or the
17. Using fictitious name and concealing true signature or stamp of the chief
name (Art. 178); executive was forged by another
18. Illegal use of uniforms or insignia (Art. person.
179);
19. False testimony against a defendant (Art. b. That the offender knew of the
180); counterfeiting or forgery.
20. False testimony favorable to the
defendant (Art. 181); c. That he used the counterfeit seal
21. False testimony in civil cases (Art. 182); or forged signature or stamp.
22. False testimony in other cases and
perjury (Art. 183);  Offender is NOT the forger/not the cause of
23. Offering false testimony in evidence (Art. the counterfeiting
184);
24. Machinations in public auction (Art.
185); Article 163
25. Monopolies and combinations in MAKING AND IMPORTING AND UTTERING
restraint of trade (Art. 186); FALSE COINS
26. Importation and disposition of falsely
marked articles or merchandise made of  ELEMENTS :
gold, silver, or other precious metals or a. That there be false or counterfeited
their alloys (Art. 187); coins (need not be legal tender).
27. Substituting and altering trade marks
and trade names or service marks (Art. b. That the offender either made,
188); imported or uttered such coins.
 c. That in case of uttering such false or (1) Counterfeiting coins -- This is the crime
counterfeited coins, he connives with of remaking or manufacturing without any
counterfeiters or importers. authority to do so.

 Coin is counterfeit – if it is forged, or if it is * In the crime of counterfeiting, the law is not

not an article of the government as legal concerned with the fraud upon the public such
tender, regardless if it is of no value that even though the coin is no longer legal tender,
the act of imitating or manufacturing the coin of
Kinds of coins the counterfeiting of which is the government is penalized. In punishing the
punished crime of counterfeiting, the law wants to prevent
people from trying their ingenuity in their
1. Silver coins of the Philippines or coins of the imitation of the manufacture of money.
Central Bank of the Philippines;
(2) Mutilation of coins -- This refers to the
2. Coins of the minor coinage of the Philippines deliberate act of diminishing the proper
or of the Central Bank of the Philippines; metal contents of the coin either by
scraping, scratching or filling the edges of
3. Coin of the currency of a foreign country. the coin and the offender gathers the
metal dust that has been scraped from
 Counterfeiting – imitation of legal or the coin.
genuine coin (may contain more silver,
different design) such as to deceive an Requisites of mutilation under the Revised
ordinary person in believing it to be genuine Penal Code

 Utter – to pass counterfeited coins, deliver or (1) Coin mutilated is of legal tender;
give away
(2) Offender gains from the precious metal
 Import – to bring to port the same dust abstracted from the coin; and

 Both Philippine and foreign state coins (3) It has to be a coin.

 Applies also to coins withdrawn from  There is no expertise involved here. In

circulation mutilation of coins under the Revised Penal
Code, the offender does nothing but to scrape,
 Essence of article: making of coins without pile or cut the coin and collect the dust and,
authority thus, diminishing the intrinsic value of the
coin.
Acts punished
* Mutilation of coins is a crime only if the coin
1. Mutilating coins of the legal currency, with mutilated is legal tender. If it is not legal tender
the further requirements that there be intent anymore, no one will accept it, so nobody will be
to damage or to defraud another; defrauded. But if the coin is of legal tender, and
the offender minimizes or decreases the precious
2. Importing or uttering such mutilated coins, metal dust content of the coin, the crime of
with the further requirement that there mutilation is committed.
must be connivances with the mutilator or
importer in case of uttering. * The offender must deliberately reduce the
precious metal in the coin. Deliberate intent
The first acts of falsification or falsity are – arises only when the offender collects the
precious metal dust from the mutilated coin. If
(1) Counterfeiting – refers to money or currency; the offender does not collect such dust, intent to
mutilate is absent, but Presidential Decree No.
(2) Forgery – refers to instruments of credit and 247 will apply.
obligations and securities issued by the
Philippine government or any banking
institution authorized by the Philippine Article 164
government to issue the same;  MULTILATION OF COINS – IMPORTATION
AND UTTERANCE:
(3) Falsification – can only be committed in
respect of documents. This has been repealed by PD 247.
(Defacement, Mutilation, Tearing, Burning or
In so far as coins in circulation are concerned, Destroying Central Bank Notes and Coins)
there are two crimes that may be committed:
Under this PD, the acts punishable are:
a.
willful defacement
 b. the coins, her act would result in the diminution of
mutilation the coin in circulation.
c.
tearing 5. A certain customer in a
d. restaurant wanted to show off and used a P
burning 20.00 bill to light his cigarette. Was he guilty of
e. violating Presidential Decree No. 247?
destruction of Central Bank notes and
coins He was guilty of arrested for violating of
Presidential Decree No. 247. Anyone who is in
 Mutilation – to take off part of the metal possession of defaced money is the one who is the
either by filling it or substituting it for violator of Presidential Decree No. 247. The
another metal of inferior quality, to diminish intention of Presidential Decree No. 247 is not to
by inferior means (to diminish metal punish the act of defrauding the public but what is
contents). being punished is the act of destruction of money
issued by the Central Bank of the Philippines.
 Foreign notes and coins not included. Must
be legal tender. Note that persons making bracelets out of some
coins violate Presidential Decree No. 247.
 Must be intention to mutilate.
The primary purpose of Presidential Decree No.
Mutilation under the Revised Penal Code is true 247 at the time it was ordained was to stop the
only to coins. It cannot be a crime under the practice of people writing at the back or on the
Revised Penal Code to mutilate paper bills edges of the paper bills, such as "wanted: pen
because the idea of mutilation under the code is pal".
collecting the precious metal dust. However,
under Presidential Decree No. 247, mutilation is So, if the act of mutilating coins does not involve
not limited to coins. gathering dust like playing cara y cruz, that is not
mutilation under the Revised Penal Code because
the offender does not collect the metal dust. But
Questions & Answers by rubbing the coins on the sidewalk, he also
defaces and destroys the coin and that is
1. The people playing cara y cruz, punishable under Presidential Decree No. 247.
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 Article 165
mutilation committed? SELLING OF FALSE OR MUTILATED COIN,
WITHOUT CONNIVANCE
Mutilation, under the Revised Penal Code,
is not committed because they do not collect the  2 Types
precious metal content that is being scraped from a. Possession of coin, counterfeited or
the coin. However, this will amount to violation of mutilated by another person, with intent to
Presidential Decree No. 247. utter the same, knowing that it is false or
mutilated.
2. When the image of Jose Rizal on ELEMENTS:
a five-peso bill is transformed into that of Randy 1. possession
Santiago, is there a violation of Presidential 2. with intent to utter, and
Decree No. 247? 3. knowledge

Yes. Presidential Decree No. 247 is b.Actually uttering such false or mutilated
violated by such act. coin, knowing the same to be false or
mutilated.
4. An old woman who was a ELEMENTS:
cigarette vendor in Quiapo refused to accept one- 1. actually uttering, and
centavo coins for payment of the vendee of
cigarettes he purchased. Then came the police 2. knowledge.
who advised her that she has no right to refuse
since the coins are of legal tender. On this, the  Possession does not require legal tender in
old woman accepted in her hands the one- foreign coins
centavo coins and then threw it to the face of the  Includes constructive possession
vendee and the police. Was the old woman guilty
of violating Presidential Decree No. 247? * On counterfeiting coins, it is immaterial
whether the coin is legal tender or not because
She was guilty of violating Presidential the intention of the law is to put an end to the
Decree No. 247 because if no one ever picks up practice of imitating money and to discourage
anyone who might entertain the idea of imitating security payable to bearer, or any
money (People vs. Kong Leon). instrument payable to order or other
document of credit not payable to
Article 166 bearer is forged or falsified by another
FORGING TREASURY OR BANK NOTES – person.
IMPORTING AND UTTERING
 Acts punishable: b. That the offender knows that any of
a. Forging or falsity of treasury/bank those instruments is forged or falsified.
notes or documents payable to bearer
c. That he performs any of these acts –
b. Importing of such notes 1. using any of such forged or falsified
instrument, or
c. Uttering of such false or forged 2. possessing with intent to use any of
obligations and notes in connivance such forged or falsified instrument.
with forgers and importers  Act sought to be punished: Knowingly
possessing with intent to use any of such
 FORGING – by giving a treasury or bank note forged treasury or bank notes
or document payable to bearer/order an
appearance of a true and genuine document Article 169
 FALSIFICATION – by erasing, substituting, FORGERY
counterfeiting or altering by any means the
figures and letters, words, signs contained  How forgery is committed:
therein a. by giving to a treasury or bank note
 E.g. falsifying – lotto or sweepstakes ticket. or any instrument payable to bearer
Attempted estafa through falsification of an or to order, the appearance of a true
obligation or security of the Phil and genuine document
 PNB checks not included here – it’s
falsification of commercial document under b. by erasing, substituting,
Article 172 counterfeiting, altering by any means
 Obligation or security includes: bonds, the figures, letters or words, or signs
certificate of indebtedness, bills, national contained therein.
bank notes, coupons, treasury notes,
certificate of deposits, checks, drafts for  if all acts done but genuine appearance is not
money, sweepstakes money given, the crime is frustrated

* If the falsification is done on a document that is * Forgery under the Revised Penal Code applies to
classified as a government security, then the papers, which are in the form of obligations and
crime is punished under Article 166. On the securities issued by the Philippine government as
other hand, if it is not a government security, its own obligations, which is given the same
then the offender may either have violated Article status as legal tender. Generally, the word
171 or 172. “counterfeiting” is not used when it comes to
notes; what is used is “forgery.” Counterfeiting
Article 167 refers to money, whether coins or bills.
COUNTERFEITING, IMPORTING, AND
UTTERING INSTRUMENTS NOT PAYABLE TO * Notice that mere change on a document does
BEARER not amount to this crime. The essence of forgery
is giving a document the appearance of a true and
 ELEMENTS : genuine document. Not any alteration of a letter,
a. That there be an instrument payable to number, figure or design would amount to
order or other document of credit not forgery. At most, it would only be frustrated
payable to bearer. forgery.

b. That the offender either forged, * When what is being counterfeited is obligation or
imported or uttered such instruments. securities, which under the Revised Penal Code is
given a status of money or legal tender, the crime
c. That in case of uttering, he connived committed is forgery.
with the forger or importer.
Article 168 Questions & Answers
ILLEGAL POSSESSION AND USE OF FALSE
TREASURY OR BANK NOTES AND OTHER
INSTRUMENT OF CREDIT 1. Instead of the peso sign (P),
somebody replaced it with a dollar sign ($). Was
 ELEMENTS: the crime of forgery committed?
a. That any treasury or bank note or
certificate or other obligation and No. Forgery was not committed. The
forged instrument and currency note must be
given the appearance of a true and genuine Five classes of falsification:
document. The crime committed is a violation of
Presidential Decree No. 247. Where the currency (1) Falsification of legislative documents;
note, obligation or security has been changed to
make it appear as one which it purports to be as (2) Falsification of a document by a public
genuine, the crime is forgery. In checks or officer, employee or notary public;
commercial documents, this crime is committed
when the figures or words are changed which (3) Falsification of a public or official, or
materially alters the document. commercial documents by a private
individual;
2. An old man, in his desire to earn
something, scraped a digit in a losing (4) Falsification of a private document by any
sweepstakes ticket, cut out a digit from another person;
ticket and pasted it there to match the series of
digits corresponding to the winning sweepstakes (5) Falsification of wireless, telegraph and
ticket. He presented this ticket to the Philippine telephone messages.
Charity Sweepstakes Office. But the alteration is
so crude that even a child can notice that the * The crime of falsification must involve a writing
supposed digit is merely superimposed on the that is a document in the legal sense. The
digit that was scraped. Was the old man guilty of writing must be complete in itself and capable of
forgery? extinguishing an obligation or creating rights or
capable of becoming evidence of the facts stated
NO Because of the impossibility of therein. Until and unless the writing has
deceiving whoever would be the person to whom attained this quality, it will not be considered as
that ticket is presented, the Supreme Court ruled document in the legal sense and, therefore, the
that what was committed was an impossible crime of falsification cannot be committed in
crime. Note, however, that the decision has been respect thereto.
criticized. In a case like this, the Supreme Court of
Spain ruled that the crime is frustrated. Where Distinction between falsification and forgery:
the alteration is such that nobody would be
deceived, one could easily see that it is a forgery, Falsification is the commission of any of the
the crime is frustrated because he has done all the eight acts mentioned in Article 171 on legislative
acts of execution which would bring about the (only the act of making alteration), public or
felonious consequence but nevertheless did not official, commercial, or private documents, or
result in a consummation for reasons independent wireless, or telegraph messages.
of his will.
The term forgery as used in Article 169 refers to
3. A person has a twenty-peso bill. the falsification and counterfeiting of treasury or
He applied toothache drops on one side of the bank notes or any instruments payable to bearer
bill. He has a mimeograph paper similar in or to order.
texture to that of the currency note and placed it
on top of the twenty-peso bill and put some * Note that forging and falsification are crimes
weight on top of the paper. After sometime, he under Forgeries.
removed it and the printing on the twenty-peso
bill was reproduced on the mimeo paper. He took Article 170
the reverse side of the P20 bill, applied toothache FALSIFICATION OF LEGISLATIVE
drops and reversed the mimeo paper and pressed DOCUMENTS
it to the paper. After sometime, he removed it
and it was reproduced. He cut it out, scraped it a  ELEMENTS :
little and went to a sari-sari store trying to buy a a. That these be a bill, resolution or
cigarette with that bill. What he overlooked was ordinance enacted or approved or
that, when he placed the bill, the printing was pending approval by the national
inverted. He was apprehended and was assembly or any provincial board or
prosecuted and convicted of forgery. Was the municipal council.
crime of forgery committed?
b. That the offender (any person) alters
The Supreme Court ruled that it was only the same.
frustrated forgery because although the offender
has performed all the acts of execution, it is not c. That he has no proper authority
possible because by simply looking at the forged therefor.
document, it could be seen that it is not genuine.
It can only be a consummated forgery if the d. That the alteration has changed the
document which purports to be genuine is given meaning of the document.
the appearance of a true and genuine document.
Otherwise, it is at most frustrated. * The words "municipal council" should include
the city council or municipal board – Reyes.
 Accused must not be a public official Requisites:
entrusted with the custody or possession of i. That the offender makes in a document
such document otherwise Art 171 applies . statements in a narration of facts

* The falsification must be committed on a ii. That he has a legal obligation to

genuine, true and authentic legislative document. disclose the truth of the facts narrated by
If committed on a simulated, spurious or him; (required by law to be done) and
fabricated legislative document, the crime is not
punished under this article but under Article 171 iii. That the facts narrated by the offender
or 172. are absolutely false; and

iv. That the perversion or truth in the

Article 171 narration of facts was made with the
FALSIFICATION OF DOCUMENTS BY PUBLIC wrongful intent of injuring a third person
OFFICER, EMPLOYEE, OR NOTARY OR
ECCLESTASTICAL MINISTER  There must be a narration of facts,
not a conclusion of law. Must be on a
 ELEMENTS: material matter
a. That the offender is a public
officer, employee, or notary public. * For one to be held criminally liable for
falsification under paragraph 4, the untruthful
b. That he takes advantage of his statement must be such as to effect the integrity
official position. of the document or to change the effects which it
would otherwise produce.
c. That he falsifies a document by
committing any of the following acts:  Legal obligation means that there is a law
requiring the disclosure of the truth of the
1. Counterfeiting or imitating any facts narrated. Ex. Residence certificates
handwriting, signature or rubric.
 The person making the narration of facts
Requisites: must be aware of the falsity of the facts
i. That there be an intent narrated by him. This kind of falsification
to imitate, or an attempt to imitate may be committed by omission

ii. That the two signatures 5. Altering true dates.

or handwritings, the genuine and the – date must be essential
forged, bear some resemblance, to each
other * For falsification to take place under this
paragraph, the date of the document must be
 (lack of similitude/imitation of a genuine material to the right created or to the obligation
signature will not be a ground for that is extinguished.
conviction under par. 1 but such is not an
impediment to conviction under par. 2) 6. Making any alteration or
intercalation in a genuine document
2. Causing it to appear that persons which changes its meaning.
have participated in any act or
proceeding when they did not in fact Requisites:
so participate. i. That there be an
alteration (change) or intercalation
3. Attributing to persons who have (insertion) on a document
participated in an act or proceeding
statements other than those in fact ii. That it was made on a
made by them. genuine document

Requisites: iii. That the

i. That the offender caused alteration/intercalation has changed the
it to appear in a document that a person/s meaning of the document
participated in an act or a proceeding; and
iv. That the change made
ii. That such person/s did the document speak something false.
not in fact so participate in the act or
proceeding 7. Issuing in an authenticated form a
document purporting to be a copy of an
4. Making untruthful statements in a original document when no such
narration of facts; original exists, or including in such
 copy a statement contrary to, or  Not necessary that what is falsified is a
different from, that of the genuine genuine or real document, enough that it
original; (if no knowledge, falsification gives an appearance of a genuine article
through negligence) or
As long as any of the acts of falsification
* The acts of falsification mentioned in this is committed, whether the document is genuine or
paragraph are committed by a public officer or by not, the crime of falsification may be committed.
a notary public who takes advantage of his Even totally false documents may be falsified.
official position as custodian of the document. It
can also refer to a public officer or notary who  COUNTERFEITING – imitating any
prepared and retained a copy of the document. handwriting, signature or rubric
The falsification can be done in two ways. It can
be a certification purporting to show that the  FEIGNING – simulating a signature,
document issued is a copy of the original on handwriting, or rubric out of one of which
record when no such original exists. It can also does not in fact exist
be in the form of a certification to the effect that
the document on file contains statements or * It does not require that the writing be genuine.
including in the copy issued, entries which are Even if the writing was through and through false,
not found on contrary to, or different from the if it appears to be genuine, the crime of
original genuine document on file. falsification is nevertheless committed.

8. Intercalating any instrument or note THERE ARE FOUR KINDS OF DOCUMENTS:

relative to the issuance thereof in a (1) Public document in the execution of which,
protocol, registry, or official book. a person in authority or notary public has
(genuine document) taken part;
(2) Official document in the execution of
* In case the offender is an ecclesiastical which a public official takes part;
minister, the act of falsification is committed (3) Commercial document or any document
with respect to any record or document of recognized by the Code of Commerce or
such character that its falsification may any commercial law; and
affect the civil status of persons. (4) Private document in the execution of
which only private individuals take part.
 There is no crime of attempted or frustrated
falsification of public document * Public document is broader than the term official
document. Before a document may be considered
* Alteration or changes to make the document official, it must first be a public document. But
speak the truth do not constitute falsification. not all public documents are official documents.
(US vs. Mateo, 25 Phil. 324) To become an official document, there must be a
law which requires a public officer to issue or to
 Persons liable – public officer, employee or render such document. Example: A cashier is
notary public or ecclesiastical minister required to issue an official receipt for the
> Either he has duty to intervene in the amount he receives. The official receipt is a
preparation of the document or it may be a public document which is an official document.
situation wherein the public officer has official
custody of the document. Liability of a private individual in
falsification by a public officer when there is
 So even if the offender is a public officer, if conspiracy.
her causes the falsification of a document
which is not in his official custody or if the Under Republic Act 7975, when a public officer
falsification committed by him is not related who holds a position classified as Grade 27 or
whatsoever to the performance of his duties, higher, commits a crime in relation to the
he will still be liable for falsification but performance of his official functions, the case
definitely not under this Article but under against him will fall under the jurisdiction of the
Article 172. (falsification of documents by a Sandiganbayan. If a private person is included in
private person) the accusation because of the existence of
conspiracy in the commission of the crime, the
DOCUMENT: Any written instrument which Sandiganbayan shall maintain jurisdiction over
establishes a right or by which an obligation is the person of the co-accused, notwithstanding
extinguished. A deed or agreement executed by a the fact that said co-accused is a private
person setting forth any disposition or condition individual. If the public officer is found guilty, the
wherein rights and obligations may arise. same liability and penalty shall be imposed on the
private individual. (U.S. vs. Ponce, 20 Phil. 379)
* Writing may be on anything as long as it is a
product of the handwriting, it is considered a
document. Article 172
FALSIFICATION OF PUBLIC, OFFICIAL, OR  Examples of commercial documents –
COMMERCIAL DOCUMENT BY A PRIVATE warehouse receipts, airway bills, bank
INDIVIDUAL (par 1) checks, cash files, deposit slips and bank
statements, journals, books, ledgers, drafts,
 ELEMENTS letters of credit and other negotiable
a. That the offender is a private instruments
individual or a public officer or There is a complex crime of estafa through
employee who did not take advantage falsification of public, official or commercial
of his official position. document. In the crime of estafa, damage or
intent to cause damage is not an element. It is
b. That he committed any of the acts sufficient that the offender committed or
of falsification enumerated in ART. performed the acts of falsification as defined and
171. punished under Article 171. The two offenses can
co-exist as they have distinct elements peculiar
1. Counterfeiting or imitating any to their nature as a crime. When the falsification
handwriting, signature or rubric. is committed because it is necessary to commit
estafa, what we have is a complex crime defined
2. Causing it to appear that persons and punished under Article 48 of the Revised
have participated in any act or Penal Code.
proceeding when they did not in fact
so participated. There is a complex crime of falsification of pubic
documents through reckless imprudence.
3. Attributing to persons who have
participated in an act or proceeding  Cash disbursement vouchers or receipts
statements other than those in fact evidencing payments are not commercial
made by them. documents

4. Making untruthful statements in a  A mere blank form of an official document is

narration of facts; not in itself a document

5. Altering true dates.  The possessor of falsified document is

presumed to be the author of the falsification
6. Making any alteration or intercalation
in a genuine document which
changes its meaning. FALSIFICATION UNDER PARAGRAPH 2 OF
ART. 172. OF PRIVATE DOCUMENT
c. That the falsification was
committed in any public or official or  ELEMENTS :
commercial document. a. That the offender committed any of
the acts of falsification, except those
 Under this paragraph, damage is not in paragraph 7 and 8, enumerated in
essential, it is presumed art. 171.

* If the falsification of public, official or b. That the falsification was committed

commercial documents, whether they be public in any private document (must affect
official or by private individuals, it is not the truth or integrity of the document)
necessary that there be present the idea of gain or
the intent to injure a third person. What is c. That the falsification caused damage
punished under the law is the violation of public (essential element; hence, no crime of
faith and the perversion of the truth as solemnly estafa thru falsification of private
proclaimed by the nature of the document. document) to a third party or at least
(Sarep vs. Sandiganbayan) the falsification was committed with
intent to cause such damage.
 Defense: lack of malice or criminal intent
 Not necessary that the offender profited or
 The following writings are public: hoped to profit from the falsification
a. the written acts or records of acts of the
sovereign authority of official bodies and * Falsification of a private document is
tribunals, and of the public officers, consummated when such document is actually
legislative, judicial and executive, falsified with the intent to prejudice a third
whether of the Philippines or of a foreign person whether such falsified document is or is
country. not thereafter put to illegal use for which it is
intended. (Lopez vs. Paras, 36 Phil. 146)
b. Public records kept in the Philippines.
* What is emphasized at this point is the element
of falsification of private document. There must
be intent to cause damage or damage is actually
caused. The intention is therefore must be  If the estafa was already consummated at the
malicious or there is deliberate intent to commit time of the falsification of a private document
a wrong. Reckless imprudence is incompatible was committed for the purpose of concealing
with malicious intent. the estafa, the falsification is not punishable,
because as regards the falsification of the
 Falsification is not a continuing offense private document there was no damage or
intent to cause damage.
* There is no falsification through reckless
imprudence if the document is a private document. * A private document which is falsified to obtain
money from offended party is a falsification of
 Falsification by omission private document only.

* Mere falsification of a private document is not  A private document may acquire the
enough to commit crime under paragraph 2 of character of a public document when it
Article 172. Two acts must be done by the becomes part of an official record and is
offender. 1) He must have performed in the certified by a public officer duly authorized
private document the falsification contemplated by law
under Article 171. 2) He must have performed an
independent act which operates to cause damage  The crime is falsification of public documents
or prejudice to a third person. The third person even if falsification took place before the
mentioned herein may include the government. private document becomes part of the public
Damage is not limited to money or pecuniary records
prejudice. Damage to one’s honor, reputation or
good name is included. Examples:
An employee of a private company who punches
 A document falsified as a necessary means to the bundy clock on behalf on a co-employee is
commit another crime must be public, official guilty of falsification of a private document.
or commercial
One who will take the civil service examination
 There is no complex crime of estafa for another and makes it appear that he is the
through falsification of a private examinee is guilty of falsification of a public
document because the immediate effect of document.
the latter is the same as that of estafa
USE OF FALSIFIED DOCUMENT (par. 3, art.
* If a private document is falsified to cause 172)
damage to the offended party, the crime
committed is falsification of a private document.  ELEMENTS:
Remember that in estafa, damage or intent to
cause damage is an indispensable element of the a. Introducing in a judicial proceeding:
crime. The same element is necessary to commit 1. That the offender knew that a
the crime of falsification of private document. document was falsified by
Since they have a common element, such another person.
element cannot be divided into the two parts and
considered as two separate offenses. 2. That the false document is
embraced in art. 171 or in any
* There is no complex crime of estafa with subdivisions nos. 1 and 2 of art.
falsification because deceit is a common element 172.
of both. One and the same deceit or damage
cannot give rise to more than one crime. It is 3. That he introduced said
either estafa or falsification. document in evidence in any
judicial proceeding. (intent to cause
Criteria to determine whether the crime is damage not necessary)
estafa only or falsification only :
b. Use in any other transaction:
IF the falsification of the private document was 1. That the offender knew that a
essential in the commission of estafa because the document was falsified by
falsification, estafa cannot be committed, the another person.
crime is falsification; estafa becomes the
consequence of the crime. 2. That the false document is
embraced in art. 171 or in any of
IF the estafa can be committed even without subdivisions nos. 1 and 2 of art.
resorting to falsification, the latter being resorted 172.
only to facilitate estafa, the main crime is estafa;
falsification is merely incidental, since even 3. That he used such documents (not
without falsification, estafa can be committed. in judicial proceedings).
 sending or receiving wireless, cable or
4. That the use of the documents telephone message.
caused damage to another or at
least was used with intent to b. That the accused commits any of the
cause such damage. following acts:
- uttering fictitious wireless, cable,
 The user of the falsified document is telegraph, or telephone message, or
deemed the author of falsification, if: - falsifying wireless, cable, telegraph,
a. the use is so closely connected in or telephone message
time with the falsification
2. Falsifying wireless, telegraph or
b. the user had the capacity of falsifying telephone message
the document Requisites:
a. That the offender is an officer or
Falsification of Falsification of employee of the government or an
Private Public/Official officer or employee of a private
Documents Documents corporation, engaged in the service of
Prejudice to third Prejudice to third sending or receiving wireless, cable or
party is an element persons is immaterial, telephone message.
of the offense. what is punished is the
violation of public faith b. That the accused commits any of the
and perversion of truth following acts:
which the document - uttering fictitious wireless, cable,
proclaims. telegraph, or telephone message,
or
Rules to observe in the use of a falsified - falsifying wireless, cable, telegraph,
document. or telephone message
1. It is a crime when knowingly introduced in a
judicial proceeding even if there is not intent 3. Using such falsified message
to cause damage to another. Knowingly Requisites:
introducing a falsified document in a judicial a. That the accused knew that wireless,
proceeding, the use alone is not a crime. The cable, telegraph, or telephone message
mere introduction of the forged document is was falsified by any of the person
the crime itself. But when the falsified specified in the first paragraph of art.
document is knowingly introduced in an 173.
administrative proceeding, the use alone is
not a crime. There must be intent to cause b. That the accused used such falsified
damage or damage is actually inflicted. dispatch.

2. Falsification of document is a separate and c. That the use of the falsified dispatch
distinct offense from that of the use of resulted in the prejudice of a third
falsified documents. So if the falsification of party, or that the use thereof was with
document was done or performed because it intent to cause such prejudice.
was necessary to the use of the same and in
the commission of the crime, then we may  The public officer, to be liable must be
have a complex crime defined and punished engaged in the service of sending or receiving
under Article 48 of the Revised Penal Code. wireless, cable and telegraph or telephone
message
3. Good faith is a defense in falsification of
public document. Article 174
FALSIFICATION OF MEDICAL CERTIFICATES,
CERTIFCATES OF MERIT OR SERVICE AND
Article 173 THE LIKE:
FALSIFICATION OF WIRELESS, CABLE,  Persons liable:
TELEGRAPH, AND TELEPHONE MESSAGES, a. Physician or surgeon who, in connection
AND USE OF SAID FALSIFIED MESSAGES with the practice of his profession, issued
a false certificate (note: such certificate
 Acts punishable: must refer to the illness or injury of a
1. Uttering fictitious, wireless, telegraph person)
or telephone message b. Public officer who issued a false
Requisites: certificate of merit of service, good conduct
a. That the offender is an officer or or similar circumstances
employee of the government or an c. Private individual who falsified a
officer or employee of a private certificate under (1) and (2)
corporation, engaged in the service of
Article 175 2. As an officer, agent or
USING FALSE CERTIFICATES representative of any
department or agency of the
 ELEMENTS: Philippine government or of
a. That a physician or surgeon has issued any foreign government.
a false medical certificate, or a public
officer has issued a false certificate of  In usurpation of official functions: It is
merit or service, good conduct, or similar essential that the offender should have
circumstances, or a private person had performed an act pertaining to a person in
falsified any of said certificates. authority

b. That the offender knew that the Elements

certificate was false. 1. Offender performs any act;

c. That he used the same. 2. Pertaining to any person in

authority or public officer of the
Article 176 Philippine government or any
MANUFACTURING AND POSSESSION OF foreign government, or any agency
INTRUMENTS OR IMPLEMENTS FOR thereof;
FALSIFICATION:
3. Under pretense of official position;
 Acts punishable:
a. Making or introducing into the 4. Without being lawfully entitled to
Philippines any stamps, dies or marks do so.
or other instruments or implements for
counterfeiting or falsification  A public officer may also be an offender

b. Possessing with intent to use the  The act performed without being lawfully
instruments or implements for entitled to do so must pertain:
counterfeiting or falsification made in a. to the gov’t
or introduced into the Philippines by b. to any person in authority
another person c. to any public office

 The implement confiscated need not form a * Foreign government adverted to in this article
complete set refers to public officers duly authorized to
perform governmental duties in the Philippines.
 Constructive possession is also punished The law cannot refer to other foreign governments
as its application may bring us to legal problems
OTHER FALSITIES which may infringe on constitutional boundaries.

Article 177 * If the offender commits the acts of usurpation

USURPATION OF AUTHORITY OR OFFICIAL as contemplated herein, and he does it because
FUNCTIONS: he is a rebel and pursuant to the crime of
rebellion or insurrection or sedition, he will not
 2 ways of committing the crime: be liable under this article because what is
a. By knowingly and falsely attributed against him as a crime of usurpation
representing oneself to be an officer, is in fact one of the elements of committing
agent or representative of any rebellion.
department or agency of the
Philippine gov’t or any foreign gov’t. * The elements of false pretense is necessary to
commit the crime of usurpation of official
b. By performing an act pertaining to function.
any person in authority or public
officer of the Phil gov’t or foreign
gov’t under the pretense of such Article 178
official position, and without being USING FICTITIOUS NAME AND CONCEALING
lawfully entitled to do so. TRUE NAME
 In usurpation of authority: The mere act of
knowingly and falsely representing oneself is  ELEMENTS (using fictitious name) :
sufficient. Not necessary that he performs an a. That the offender uses a name other
act pertaining to a public officer. than his real name.

Elements b. That he uses that fictitious name

1. Offender knowingly and publicly.
falsely represents himself;
c. That the purpose of the offender is –
 1. To conceal a crime,
2. To evade the execution of a judgment, or * The wearing of a uniform, or insignia of a non-
3. To cause damage to public interest. (ex. existing office or establishment is not a crime. It
Signing fictitious name for a passport) is necessary that the uniform or insignia
represents an office which carries authority,
* The name of a person is what appears in his respect, dignity, or influence which the public
birth certificate. The name of a person refers to looks up to.
his first name, surname, and maternal name.
Any other name which a person publicly applies > So also, an exact imitation of a uniform or dress
to himself without authority of law is a fictitious is unnecessary; a colorable resemblance
name. calculated to deceive the common run of people is
 ELEMENTS (concealing true name): sufficient.
a. that the offender conceals –
1. his true name, and * The wearing of insignia, badge or emblem of
2. all other personal circumstances. rank of the members of the armed forced of the
b. that the purpose is only to conceal Philippines or constabulary (now PNP) is
his identity. punished by Republic Act No. 493.

* What the offender does to violate or commit this * When the uniform or insignia is used to
act is for him to conceal his true name and other emphasize the pageantry of a play or drama or in
personal circumstances. His only motive in doing moving picture films, the crime is not committed.
so is to conceal his identity. In concealment of
true name, the deception is done momentarily, THREE FORMS OF FALSE TESTIMONY
just enough to conceal the name of the offender.
In the use of fictitious name, the offender presents 1. False testimony in criminal cases under
himself before the public with another name. Article 180 and 181;
2. False testimony in civil case under Article
* A person under investigation by the police who 182;
gives a false name and false personal 3. False testimony in other cases under
circumstances, upon being interrogated, is guilty Article 183.
of this crime.
False testimony, defined
Use of Fictitious Name Concealing True It is the declaration under oath of a
(178) Name (178) witness in a judicial proceeding which is contrary
Element of publicity must Publicity not to what is true, or to deny the same, or to alter
be present necessary essentially the truth.
Purpose is to conceal a Purpose is to conceal
crime, to evade the identity Nature of the crime of false testimony.
execution of a judgement, 1. It cannot be committed through reckless
or to cause damage imprudence because false testimony requires
criminal intent or intent to violate the law is
Commonwealth Act No. 142 (Regulating the an essential element of the crime.
Use of Aliases)
No person shall use any name different from the 2. If the false testimony is due to honest mistake
one with which he was registered at birth in the or error or there was good faith in making the
office of the local civil registry, or with which he false testimony, no crime is committed.
was registered in the bureau of immigration upon
entry; or such substitute name as may have been Article 180
authorized by a competent court. FALSE TESTIMONY AGAINST A DEFENDANT
 ELEMENTS:
Exception: Pseudonym solely for literary, a. That there be a criminal
cinema, television, radio, or other entertainment proceeding.
and in athletic events where the use of b. That the offender testifies falsely
pseudonym is a normally accepted practice. under oath against the defendant
therein.
Article 179 c. That the offender who gives false
ILLEGAL USE OF UNIFORM OR INSIGNIA testimony knows that it is false.
 ELEMENTS: d. That the defendant against whom
a. That the offender makes use of the false testimony is given is either
insignia, uniform or dress acquitted or convicted in a final
b. That the insignia, uniform or dress judgment (prescriptive period starts at
pertains to an office not held by the this point)
offender or to a class of persons of
which he is not a member.  Requires criminal intent, can’t be committed
c. That said insignia, uniform or dress is through negligence. Need not impute guilt
used publicly and improperly. upon the accused
 The defendant must at least be sentenced to b. That the testimony must relate to the
a correctional penalty or a fine or must have issues presented in said case.
been acquitted
c. That the testimony must be false.
 The witness who gave false testimony is liable
even if the court did not consider his d. That the false testimony must be
testimony given by the defendant knowing the
same to be false.
* The probative value of the testimonial evidence
is subject to the rules of evidence. It may not be e. That the testimony must be malicious
considered at all by the judge. But whether the and given with an intent to affect the
testimony is credible or not or whether it is issues presented in the said case
appreciated or not in the context that the false
witness wanted it to be, the crime of false  Not applicable when testimony given in a
testimony is still committed, since it is punished special proceeding (in this case, the crime is
not because of the effect it produces, but because perjury)
of its tendency to favor the accused. (People vs.
Reyes)  Basis of penalty: amount involved in the
civil case
 Penalty is dependent upon sentence imposed
on the defendant Distinctions between perjury and false
testimony:
PERJURY FALSE TESTIMONY
Article 181
1. Non-judicial 1. Given in a judicial
FALSE TESTIMONY IN FAVOR OF DEFENDANT
proceedings. proceeding.
in a criminal case:
2. Statement or 2. Testimony need not
testimony is required be required by law.
Elements:
by law.
1. A person gives false testimony;
3. Amount involved is 3. Amount involved in
not material. civil cases is material.
2. In favor of the defendant;
4. immaterial whether 4. It is always material
3. In a criminal case. statement or testimony in criminal cases.
is favorable or not to
the accused.
 False testimony by negative statement is in
favor of the defendant
Article183
 False testimony need not in fact benefit the
FALSE TESTIMONY IN OTHER CASES AND
defendant
PERJURY IN SOLEMN AFFIRMATION
 A statement of a mere opinion is not
ELEMENTS:
punishable
a. That an accused made a statement
under oath or made an affidavit upon
 Conviction or acquittal is not necessary (final a material matter.
judgement is not necessary). The false
testimony need not influence the acquittal b. That the statement or affidavit was
made before a competent officer,
 A defendant who voluntarily goes up on the authorized to receive and administer
witness stand and falsely imputes the offense oath.
to another person the commission of the
offense is liable under this article. If he c. That in that statement or affidavit, the
merely denies the commission of the offense, accused made a willful and deliberate
he is not liable. assertion of a falsehood, and
 Basis of penalty: gravity of the felony d. That the sworn statement or affidavit
charged against the defendant containing the falsity is required by
law.
Article 182  2 ways of committing perjury:
FALSE TESTIMONY IN CIVIL CASES a. by falsely testifying under oath
b. by making a false statement
 ELEMENTS:
a. That the testimony must be given in a  Subornation of perjury: procures another to
civil case. swear falsely.
  Perjury is an offense which covers false oaths
 Solemn affirmation: refers to non-judicial other than those taken in the course of
proceedings and affidavits judicial proceedings

 A false affidavit to a criminal complaint may  False testimony before the justice of the
give rise to perjury peace during the P.I. may give rise to the
crime of perjury because false testimony in
* Two contradictory sworn statements are not judicial proceedings contemplates an actual
sufficient to convict the affiant for the crime of trial where a judgment of conviction or
perjury. There must be evidence to show which is acquittal is rendered
false. The same must be established or proved
from sources other than the two contradictory  A person who knowingly and willfully
statements. (People vs. Capistrano, 40 Phil. procures another to swear falsely commits
902) subornation of perjury and the witness
suborned does testify under circumstances
 A matter is material when it is directed to rendering him guilty of perjury.
prove a fact in issue
 The false testimony is not in a judicial
* The test of materiality is whether a false proceeding
statement can influence the court (People vs.
Bnazil). False testimony vs. Perjury
When one testifies falsely before the court, the
 A “competent person authorized to crime committed is false testimony. If one testifies
administer an oath” means a person who falsely in a non-judicial proceeding, the crime
has a right to inquire into the questions committed is perjury. In false testimony, it is not
presented to him upon matters under his required that the offender asserts a falsehood on
jurisdiction a material matter. It is enough that he testifies
falsely with deliberate intent. In perjury, the
* There is no perjury if the accused signed and witness must testify or assert a fact on a material
swore the statement before a person not matter with a full knowledge that the information
authorized to administer oath (People vs. Bella given is essentially contrary to the truth. Material
David). matter means the main fact which is the subject
or object of the inquiry.
 There is no perjury through negligence or
imprudence since the assertion of falsehood Article 184
must be willful and deliberate OFFERING FALSE TESTIMONY IN EVIDENCE

* Because of the nature of perjury, which is the  ELEMENTS:

willful and corrupt assertion of a falsehood, there a That the offender offered in evidence
is no perjury committed through reckless a false witness or false testimony.
imprudence or simple negligence under Article
365. Since admittedly perjury can only be b That he knew the witness or the
committed by means of dolo, then good faith or testimony was false.
lack of malice is a good defense when one is
indicted for the crime of perjury. c That the offer was made in a
judicial or official proceeding.
 Even if there is no law requiring the
statement to be made under oath, as long as  The false witness need not be convicted of
it is made for a legal purpose, it is sufficient false testimony. The mere offer is sufficient.

* If there is no requirement of law to place the * The offender in this article knows that the
statement or testimony under oath, there is no witness to be presented is a false witness or that
Perjury considering the phrases “oath in cases in the witness will lie while testifying. The
which the law so requires” in Article 183. proceedings is either judicial or official. There is a
formal offer of testimonial evidence in the
* The affidavit or sworn statement must be proceedings. The witness is able to testify and the
required by law like affidavit of adverse claim to offender, knowing the testimony is given by the
protect one’s interest on real property; or an witness to be false, nevertheless offers the same
affidavit of good moral character to take the bar in evidence. In this case, the person offering the
examination. So if the affidavit was made but the false testimony must have nothing to do in the
same is not required by law, even if the making of the false testimony. He knows that the
allegations are false, the crime of perjury is not witness is false and yet he asks him to testify and
committed. (Diaz vs. People, 191 SCRA 86) thereafter offers the testimony in evidence. So if
the offeror, aside from being such, is also the
person responsible in inducing or convincing the
false witness to lie, Article 184 will not apply. The
applicable article will be Article 180, 181, 182, or 2. In restraint of trade or
183 as the case may be. The offenders in this commerce or to prevent by
case will be charged with perjury; the inducer as artificial means free
principal by inducement and the induced party competition in the market.
as the principal by direct participation.
b. By entering into a contract or
* It is for this reason that subornation of agreement or taking part in any
perjury is no longer treated as a specific felony conspiracy or combination in the
with a separate article of its own. Nevertheless, it form of a trust or otherwise, in
is a crime defined and punished under the restraint of trade or commerce or
Revised Penal Code. The crime committed by one prevent by artificial means free
who induces another to testify falsely and the competition in the market (It is enough
person who agrees and in conspiracy with the that initial steps are taken. It is not
inducer, testifies falsely, is perjury. (People vs. necessary that there be actual restraint of
Padol, 66 Phil. 365) trade)

FRAUDS c. Monopoly to restrain free competition

in the market
Article 185
MACHINATIONS IN PUBLIC AUCTION Elements

 ELEMENTS: 1. By monopolizing any merchandise or

a That there be a public auction. object of trade or commerce, or by
b That the accused solicited any gift or combining with any other person or
a promise from any of the bidders. persons to monopolize said
c That such gifts or promise was the merchandise or object;
consideration for his refraining from
taking part in that public auction. 2. In order to alter the prices thereof by
d That the accused had the intent to spreading false rumors or making use
cause the reduction of the price of the of any other artifice;
thing auctioned.
3. To restrain free competition in the
 ELEMENTS OF ATTEMPTING TO CAUSE market
BIDDERS TO STAY AWAY:
a That there be a public auction. d. Manufacturer, producer or processor
or importer combining, conspiring or
b That the accused attempted to cause agreeing with any person to make
the bidders to stay away from that transactions prejudicial to lawful
public auction commerce or to increase the market
price of the merchandise.
c That it was done by threats, gifts,
promises, or any other artifice. Elements

d That the accused had the intent to 1. Manufacturer, producer, processor or

cause the reduction of the price of the importer of any merchandise or object
thing auctioned. of commerce;

2. Combines, conspires or agrees with any

Article 186 person;
MONOPOLIES AND COMBINATIONS IN
RESTRAINT OF TRADE: 3. Purpose is to make transactions
prejudicial to lawful commerce or to
 Acts punished: increase the market price of any
merchandise or object of commerce
a. Combination to prevent free manufactured, produced, processed,
competition in the market assembled or imported into the
Philippines.
Elements
 Person/s liable:
1. Entering into any contract or a. manufacturer
agreement or taking part in b. producer
any conspiracy or c. processor
combination in the form of a d. importer
trust or otherwise;
 Crime is committed by:
a. combining
 b. conspiring any article of commerce and (b)
c. agreeing with another person selling the same.
 The purpose is: b By selling or by offering for sale such
a. to make transactions prejudicial to lawful article of commerce, knowing that the
commerce t/n or t/m has been fraudulently used
b. to increase the market price of any c By using or substituting the service
merchandise or object of commerce mark of some other person, or a
manufactured, produced, processed, colorable imitation of such marks, in
assembled or imported into the Phil the sale or advertising of services
 Also liable as principals: d By printing, lithographing or
a. corporation/association reproducing t/n, t/m or service mark
b. agent/representative of one person, or a colorable
c. director/manager – who willingly limitation thereof, to enable another
permitted or failed to prevent commission person to fraudulently use the same,
of above offense knowing the fraudulent purpose for
 Aggravated if items are: which it is to be used.
a. food substance
b. motor fuel or lubricants  If a particular person is defrauded by the
c. goods of prime necessity offender; as in the case of locally
manufactured goods, which the offender, by
Article 187 altering the label, are made to appear as
IMPORTATION AND DISPOSITION OF imported articles and sold to a particular
FALSELY MARKED ARTICLES OR person, the crime committed is undoubtedly
MERCHANDISE MADE OF GOLD, SILVER, OR estafa as far as the particular person is
OTHER PRECIOUS METALS OR THEIR concerned. But if the falsely mislabeled goods
ALLOYS are displayed in a store and offered for sale to
the public in general, the crime committed is
 ELEMENTS: punished under Article 188. So, if the
a That the offender imports, sells or deception is isolated and is confined to a
disposes of any of those articles or particular person or group of persons, estafa
merchandise. is committed. If the fraud is employed against
b That the stamps, brands, or marks or the public, Article 188 is violated.
those articles or merchandise fails to
indicate the actual fineness or  Must not be another manufacturer otherwise
quality of said metals or alloys. unfair competition
c That the offender knows that the said
stamp, brand, or mark fails to * Take note that after making the substitution
indicate the actual fineness or the goods are displayed in the store or market for
quality of the metals or alloys. sale, Article 188 is already committed even if no
customer comes to buy any of the goods on
* To be criminally liable, it is important to display. The mere offer for sale to the public
establish that the offender knows the fact that consummates the crime.
the imported merchandise fails to indicate the
actual fineness or quality of the precious metal. If * The pendency of the administrative aspect of
the importer has no expertise on the matter such the case is not a prejudicial question in the
that he has no way of knowing how the fraud was resolution of the criminal case.
committed, the existence of such fact may be
seriously considered as a defense. Article 189
UNFAIR COMPETITION, FRAUDULENT
* What the law punishes herein is the selling of REGISTRATION OF TRADENAME,
misbranded goods made of gold, silver and other TRADEMARK SERVICE MARK, FRAUDULENT
precious metals. Therefore, it must be shown that DESIGNATION OF ORIGIN, AND FALSE
the seller knows that the merchandise is DESCRIPTION
misbranded. Hence, dishonesty is an essential  Acts punished:
element of the crime. a Unfair competition by selling his goods,
giving them the general appearance of
Article 188 the goods of another manufacturer or
SUBSTITUTING – ALTERING TRADE-MARK, dealer
TRADENAME, OR SERVICE b Fraudulent designation of origin;
MARK false description by (a) affixing to his
 Acts punishable: goods or using in connection with his
a By (a) substituting the trade name services a false designation of origin; or
(t/n) or trademark (t/m) of some other any false description or representation,
manufacturer or dealer or a colorable and (b) selling such goods or services
imitation thereof, for the t/n or t/m of
the real manufacturer or dealer upon
 c Fraudulent registration by procuring goods he manufactures to distinguish it from the
fraudulently from the patent office the goods of the other manufacturers. In
registration of t/m, t/m or service mark. infringement of trade name or trademark, the
offender uses the trade name or trademark of
 ELEMENTS: another in selling his goods, while in unfair
a That the offender gives his goods the competition, the offender gives his goods the
general appearance of the goods of general appearance of the goods of another
another manufacturer or dealer manufacturer and sells the same to the public.
(E. Spinner & Co. vs. New Hesslein Corp., 54
b That the general appearance is Phil. 224)
shown in the (a) goods themselves, or
in the (b) wrapping of their packages,
or in the (c) device or words therein, TITLE FIVE
or in (d) any other feature of their CRIMES RELATED TO OPIUM AND OTHER
appearance PROHIBITED DRUGS (190-194)

c That the offender offers to sell or COMPREHENSIVE DANGEROUS DRUGS ACT

sells those goods or gives other OF 2002
persons a chance or opportunity to do (RA No. 9165)
the same with a like purpose.
I. Acts Punishable:
d That there is actual intent to deceive a. importation of prohibited drugs
the public or defraud a competitor. b. sale, administration, delivery,
distribution and transportation of
* Under Republic Act No. 166, Section 29, prohibited drugs
paragraph 2, unfair competition is defined as c. maintenance of a den, dive or resort
follows: It consists in employing deception or any for prohibited drug users
other means contrary to good faith by which any d. being employees or visitors of drug
person shall pass off the goods manufactured by den
him or in which he deals, or his business, or e. manufacture of prohibited drugs
services for those of the one having established f. possession or use
goodwill, or committing any acts calculated to g. cultivation of plants
produce such result. h. failure to comply with provisions
relative to keeping of records of
* The true test of unfair competition is prescription
whether certain goods have been clothed with an i. unnecessary prescription
appearance which is likely to deceive the ordinary j. possession of opium pipe and other
purchaser exercising ordinary care. (U.S. vs. paraphernalia
Manuel, 7 Phil. 221) k. Importation, sale, etc. of regulated
drugs
* For unfair competition to take place, it must be
the manufacturer of the goods who will cloth or DRUG SYNDICATE – any organized group of
label his goods with the trade name or trademark two(2) or more persons forming or joining
of another manufacturer, who has established a together with the intention of committing
good name or good will in the mind of the public any offense prescribed under the act.
because of the quality of the merchandise
manufactured by him. The imitator is also a PLANTING OF EVIDENCE – the willful act by
manufacturer of the same kind of product but of any person of maliciously and surreptitiously
inferior quality. By labeling his product with the inserting, placing, adding or attaching
trademark or trade name of said manufacturer, directly or indirectly, through any overt or
he profits from the goodwill of another. covert act, whatever quantity of any
dangerous drug and/or controlled precursor
* If the labeling or clothing of the goods is not done and essential chemical in the person, house,
by another manufacturer, the crime committed is effects, or in the immediate vicinity of an
not unfair competition but substitution of innocent individual for the purpose of
trademark or trade name under Article 188. implicating, incriminating or imputing the
commission of any violation of this Act.
* When the honorable Supreme Court declared
that unfair competition is broader and more P D E A – Philippine Drug Enforcement Unit
inclusive than infringement of trade name or
trademark. In infringement of trade name or  Importation of prohibited/regulated drugs.
trademark, the offended party has a peculiar
symbol or mark on his goods which is considered PENALTY : Life to death & fine of 500,000 to
a property right which must therefore be 10 million regardless of the Quantity and
protected. In unfair competition, the offended purity involved
party has identified in the mind of the public the MAXIMUM PENALTY :
 1) Use of diplomatic Passport first offense, subject to the provisions of
2) Financier Article VIII of this Act.

 Sale, administration, delivery, distribution If apprehended using any dangerous drug

and transaction of prohibited/regulated act for the second time, he/she shall suffer
drugs. the penalty of imprisonment ranging from six
(6) years and one (1) day to twelve(12) years
- NOT BAILABLE and a fine ranging from Fifty thousand pesos
(P50,000.00) to Two hundred thousand pesos
PENALTY : Life to death & fine of 500,000 to (P200,000.00);
10 million regardless of the Quantity and
purity involved ( includes BROKER ) Provided, That this section shall not be
Qualifying Circumstances – applicable where the person tested is also
1) if the victim of the offense is a minor or found to have in his/her possession such
should a prohibited/regulated drug involve in quantity of any dangerous drug provided for
any offense under this section be the under Section 11 of this Act, in which case
proximate cause of the death of a victim the provisions stated therein shall apply.
thereof, the maximum penalty herein shall be
imposed.  Cultivation of plants which are sources of
2) Financier prohibited drugs.
3) Sale made within 100m from school Penalty - Life to death and a fine of
P500,000.00 to P10 Million
 Maintenance of a den, dive, or resort for
prohibited/regulated drug users. a Note: The land/portions thereof and/or
** Property escheated in favor of the greenhouses in which any of the said
government plants is cultivated or cultured shall be
Qualifying Circumstance – where a confiscated and escheated to the State,
prohibited/regulated drug is administered, unless the owner thereof can prove that
delivered, or sold to a minor who is allowed to he did not know of such cultivation or
use the same in such place, or should a culture despite the exercise of due
prohibited drug be the proximate cause of the diligence on his part.
death of the person using the same in such
den, dive or resort, the maximum of the b Qualifying Circumstance –
penalty shall be imposed.
1. If the land involved is part of the
 Manufacture of prohibited/regulated public domain, the maximum of the
drugs. penalty herein provided shall be imposed.

 Possession of prohibited/regulated drugs. 2. Maximum penalty imposed on

financier
PENALTY :  Failure to keep records of prescription,
a. Life to death & fine of 500,000 to 10 million sales, purchases, acquisitions and/or
10 gms. Opium, morphine, heroine, cocaine, deliveries of prohibited/regulated drugs
marijuana resin and Ecstasy.
50 gms. Shabu Persons liable:
500 gms. Marijuana Pharmacist, Physician, Dentist,
b. Life Imprisonment and a fine of P400,000.00- Veterinarian, Manufacturer, Wholesaler,
P500,000.00 Importer, Distributor, Dealer, Retailer
10-50 gms. Shabu
c. 20 years to Life and a fine of 400,000.00-  Unlawful prescription of
500,000.00 prohibited/regulated drugs
5-10 gms. Shabu Penalty – life to death and a fine of P500,000
d. 12 – 20 years and a fine of 300,000.00- to P10 Million
400,000.00  Unnecessary prescription of
Less than 5 gms. Of any dangerous drugs prohibited/regulated drugs
Penalty – 12 to 20 years and fine of
 Possession of paraphernalia P100,000 to P500,000 plus revocation of
6 mos. – 4 yrs. & fine of 10,000 – 50,000 license

Use of Dangerous Drugs – A person Persons Liable: Physician or dentist who

apprehended or arrested, who is found to be shall prescribe any prohibited/regulated drug
positive for use of any dangerous drug, after for any person whose physical/physiological
a confirmatory test, shall be imposed a condition does not require the use of thereof.
penalty of a minimum of six (6) months Confiscation and forfeiture of the proceeds or
rehabilitation in a government center for the instruments of the unlawful act, including the
properties of the proceeds derived from the Plea-Bargaining
illegal trafficking of
dangerous drugs. Any person charged under any commission of
this act regardless of the imposable penalty shall
Forfeited infavor of the government not be allowed to avail of the provision on plea-
bargaining.
After the conviction in the Regional Trial Court in
the appropriate criminal case filed, the Court
shall immediately schedule a hearing for the Probation Law
confiscation and forfeiture of all the proceeds of Any person convicted for drug trafficking
the offense and all the assets and properties of regardless of the penalty imposed cannot avail of
the accused either owned or held by him or in the the privilege granted by the probation law.
name of some other persons if the same shall be
found to be manifestly out of proportion of Qualifying Aggravating Circumstance
his/her income; Provided, however, That if the A positive finding for the use of dangerous drugs
forfeited property is a vehicle, the same shall be shall be a qualifying aggravating circumstance in
auctioned off not later than five (5) days upon the commission of a crime by an offender and the
order of confiscation or forfeiture. application of the penalty provided for in the
RPC.
During the pendency of the case in the Regional
Trial Court, no property, or income derived  Possession of opium pipe, equipment,
therefrom, which may be confiscated and apparatus or any paraphernalia fit or
forfeited, shall be disposed, alienated or intended for smoking, consuming,
transferred and the same shall be in custodia administering, injecting, ingesting, or
legis and no bond shall be admitted for the otherwise using opium or any other
release of the same. prohibited drug, shall be prima facie evidence
that the possessor has smoked, consumed,
Custody and disposition of confiscated, seized administered to himself, injected or used a
and/or surrendered dangerous drugs prohibited drug.

PDEA in charge and custody for proper  Attempt and conspiracy to commit the
disposition following offenses:
a Importation of dangerous drugs
Procedure in Disposal b Sale, administration, delivery,
1. Apprehending team immediately after seizure distribution and transportation of
shall make physical inventory and photograph dangerous drugs
the seized drugs in the presence of the accused c Maintenance of a den, dive or resort for
or his counsel, a representative of the media and prohibited drugs
DOJ and any elected public official who shall sign d Manufacture of dangerous drugs
the copies of the inventory. e Cultivation or culture of plants which are
sources of prohibited drugs
2. Within 24 hours upon confiscation/seizure of
dangerous drugs, such drug shall be submitted  Other persons liable:
to the PDEA forensic laboratory for a qualitative a If the violation of the Act is committed by
and quantitative examination. a partnership, corporation, association or
any judicial person, the partner,
3. Certification of the forensic examination president, director, or manager who
results shall be issued within 24 hours. consents to or knowingly tolerates such
violation shall be held criminally liable as
4. After the filing of the criminal case, the proper co-principal.
court shall conduct and ocular inspection within b Partner, president, director, manager,
72 hours of the confiscated, seized and/or officer or stockholder, who knowingly
surrendered dangerous drugs. authorizes, tolerates, or consents to the
use of a vehicle, vessel, or aircraft as an
5. After ocular inspection by the court, PDEA instrument in the importation, sale,
shall destroy or burn the confiscated, seized delivery, distribution or transportation of
and/or surrendered dangerous drugs within 24 dangerous drugs, or to the use of their
hours in the presence of the accused or his equipment, machines or other
counsel, representative of the media and the instruments in the manufacture of any
DOJ, civil society groups and any elected public dangerous drugs, if such vehicle, vessel,
officer. aircraft, equipment, or other instrument,
is owned or under the control and
6. PDEA shall issue a certification of such supervision of the partnership,
destruction and samples of the dangerous drugs corporation, association or judicial entity
shall be submitted to the court. to which they are affiliated.
 Criminal liability of a public officer or Penalty – 6 to 12 years and fine P100,000.00 to
employee for misappropriation, P500,000.00
misapplication or failure to account for Additional penalty – revocation of license to
the confiscated, seized and/or practice and closure of the drug testing center
surrendered dangerous drugs
II. For the purpose of enforcing the
Penalty - life to death and a fine of provisions of this Act, all school heads,
P500,000.00 to P10 Million in addition to supervisors and teachers shall be deemed
absolute perpetual disqualification from any to be persons in authority and, as such,
public office. are vested with the power to apprehend,
arrest, or cause the apprehension or
Any elective local or national official found to arrest of any person who shall violate any
have benefited from the proceeds of the of the said provision.
trafficking of dangerous drugs or have
received any financial or material a. NOTE: They shall be considered as
contributions from persons found guilty of persons in authority if they are in the
drug trafficking dangerous drugs, shall be school or within its immediate vicinity, or
removed from office and perpetually beyond such immediate vicinity if they are
disqualified from holding any elective or in attendance in any school or class
appointive positions in the government. function in their official capacity as school
heads, supervisors or teachers.
Planting of Evidence
Any person who is found guilty of planting b. Any teacher or school employee who
any dangerous drug regardless of the discovers or finds that any person in the
quantity and purity, shall suffer the penalty school or within its immediate vicinity is
of death. violating this Act shall have the duty to
report the violation to the school head or
Drug Testing supervisor who shall, in turn, report the
1. Applicants for driver’s license - mandatory matter to the proper authorities. Failure to
report in either case shall, after hearing,
2. Applicants for firearms license and for constitute sufficient cause for disciplinary
permit to carry - mandatory action.

3. Students of secondary and tertiary schools III. Rules regarding rehabilitation of drug
– random (school shall shoulder expenses) dependents

4. Officers and employees of private and Voluntary submission

public offices – random (employer shall a. Voluntary submission of a drug dependent to
shoulder expenses) confinement, treatment and rehabilitation by
Any officer or employee found positive for use the drug dependent himself or through his
of dangerous drug shall be dealt with parent, guardian or relative within the 4 th
administratively which shall be a ground for civil degree of consanguinity or affinity, in a
suspension or termination subject to Art. 282 center and compliance with such conditions
of the Labor Code and pertinent provisions of therefor as the Dangerous Drugs Board may
the Civil Service Law. prescribe shall exempt from criminal liability
for possession or use of the
5. Officers and members of the military, prohibited/regulated drug. (Applicable only
police and other law enforcement agencies – to those liable for use of dangerous drugs
annual mandatory and not to possession and sale)

6. All persons charged before the prosecutor’s b. Should the drug dependent escape from the
office with a criminal offense having an center, he may submit himself for
impossible penalty of imprisonment of not confinement within 1 week from the date of
less than six (6) years and one (1) day shall his escape, of his parent guardian or relative
have to undergo a mandatory drug test may, within the same period surrender him
for confinement.
7. All candidates for public office whether
appointed or elected both in the national or c. Upon application of the Board, the Court
local government shall undergo a mandatory shall issue an order for recommitment if the
drug test. drug dependent does not resubmit himself
for confinement or if he is not surrendered
Issuance of False or fraudulent drug test for recommitment.
results (whether willfully or through gross
negligence) d. If, subsequent to such recommitment, he
should escape again, he shall no longer be
 exempt from criminal liability for the use or Jurisdiction Over Dangerous Drug Cases
possession of any dangerous drug.
Section 90. Jurisdiction – The Supreme Court
e. If a person charged with an offense is found shall designate special courts from among the
by the fiscal or by the Court at any stage of existing Regional Trial Court in each judicial
the proceedings, to be a drug dependent, the region to exclusively try and hear cases involving
fiscal or court as the case may be, shall violations of this Act. The number of court
suspend all further proceedings and designated in each judicial region shall be based
transmit records of the case to the Board. on population and the number of cases pending
in their respective jurisdiction.
f. After his rehabilitation, he shall be
prosecuted for such violation. In case of The DOJ shall designate special prosecutors to
conviction, the judgement shall, if the exclusively handle cases involving violations of
accused is certified by the treatment and this Act.
rehabilitation center to have maintained
good behavior, indicate that he shall be The preliminary investigation of cases filed under
given full credit for the period he was this Act shall be terminated within a period of
confined in the center. thirty (30) days from the date of their filing.

NOTE: When the offense is use of dangerous When the preliminary investigation is conducted
drugs and the accused is not a recidivist, by a public prosecutor and a probable cause is
the penalty thereof shall be deemed to have established, the corresponding information shall
been served in the center upon his release be filed in court within 24 hours from the
therefrom. termination of the investigation. If the
preliminary investigation is conducted by a judge
g. The period of prescription of the offense and a probable cause is found to exist, the
charged shall not run during the time that corresponding information shall be filed by the
the respondent/accused is under detention proper prosecutor within 48 hours from the
or confinement in a center. receipt of the records of the case.

h. Requisites of suspension of sentence for Section 91. Responsibility and Liability of

first offense in a minor: Law Enforcement Agencies and Other
Government Officials and Employees
1. If accused is a minor (under 18 years of Testifying as Prosecution Witnesses in
age at the time of the commission of the Dangerous Drugs Cases – Any member of law
offense but not more than 21 years of age enforcement agencies or any other government
when the judgement should have been official and employees who, after due notice, fails
promulgated. or refuses intentionally or negligently, to appear
as a witness for the prosecution in any
2. He has not been previously convicted of proceedings, involving violations of this Act,
violating any provision of this Act or of the without any valid reason, shall be punished with
RPC or placed on probation. imprisonment of not less than twelve (12) years
and one (1) day to 20 years and a fine of not less
 Sentence shall be deferred and the accused than P500,000.00, in addition to the
shall be placed on probation under the administrative liability he/she may be meted out
supervision of the Board. by his/her immediate superior and/or
appropriate body.
 In case of violation of conditions of pardon, The immediate superior of a member of the law
court shall pronounce judgment of enforcement agency or any other government
conviction and he shall serve sentence. employee mentioned in the preceding paragraph
shall be penalized with imprisonment of not less
 If accused did not violate conditions of than two (2) months and one (1) day but not
probation, case shall be dismissed upon more than six (6) years and a fine of not less than
expiration of the designated period. P10,000.00 but not more than P50,000 and in
addition, perpetual absolute disqualification from
Compulsory submission public office if despite due notice to them and to
If a person charged with an offense where the the witness concerned, the former does not exert
imposable penalty is imprisonment of not reasonable effort to present the latter to the
more than six (6) years and one (1) day, and is court.
found by the prosecutor or by the court, at any
stage of the proceedings, to be a drug dependent, The member of the law enforcement agency or
the prosecutor of the court as the case may be, any other government employee mentioned in the
shall suspend all further proceedings and preceding paragraphs shall not be transferred or
transmit copies of the record of the case to the re-assigned to any other territorial jurisdiction
Board. during the pendency of the case in court.
However, the concerned member of the law
enforcement agency or government employee may
be transferred or re-assigned for compelling 5. P v. Hilario Moscaling – court may take
reasons; Provided, That his/her immediate judicial notice of the word “shabu”
superior shall notify the court where the case is
pending of the order of transfer or re-assign, 6. Criminal liabilities of a policeman who sold
within 24 hours from its approval; Provided the drugs confiscated from a pusher: violation
further, That his/her immediate superior shall be of RA 9165 and malversation under RPC.
penalized with imprisonment of not less than two
(2) months and one (1) day but not less than six e Planting evidence – to implicate another
(6) years and a fine of not less than P10,000.00
but not more than P50,000.00 and in addition, f Buy Bust Operation – form of entrapment
perpetual absolute disqualification from public (P v. Alberto) – not necessary to have prior
office, should he/she fail to notify the court of police surveillance (P v. Carlos Franca)
such order to transfer or re-assign.
g Possession – constructive or actual – not
Prosecution and punishment under this Section necessary to adduce the marked money as
shall be without prejudice to any liability for evidence (P v. Romeo Macara)
violation of any existing law.
h Separate crimes – sale/possession of MJ
Section 92. Delay and Bungling in the found in his possession after he was frisked
Prosecution of Drug Cases. - Any government but he can’t be convicted for possession of
officer or employee tasked with the prosecution of MJ that he sold
drug-related cases under this Act, who, through
patent laxity, inexcusable neglect, unreasonable i If victim is minor or drug is proximate cause
delay or deliberately causes the unsuccessful of death – max penalty is imposed
prosecution and/or dismissal ranging from 12
years and 1 day to 20 years without prejudice to 1. First offense of a minor – suspension
his/her prosecution under the pertinent of sentence
provisions of the Revised Penal Code.
CONDITIONS:
a Buy Bust Operation – no law or rule to  under 18 at time of
require policemen to adopt a uniform commission but not more than 21 at time
way of identifying BUY MONEY (P v. when judgment was promulgated
Abedes)
b Absence of ultraviolet powder is not fatal  found guilty of possession or
in the prosecution use of prohibited or regulated drugs
c Transportation/importation of MJ –
immaterial whether there may or may not  not been previously
be a distinction for the MJ convicted of violating any provision of this
d Distinguish Entrapment and Act or the RPC
Instigation:
 not been placed on probation
1. If prosecution can prove the crime without
presenting the informer or asset – not  defer sentence, place on
necessary because their testimonies are probation for 6 months to 1 year
merely corroborative. Poseur buyer – it
depends on whether the prosecution can  violation of probation –
prove the crime without their testimonies (P v. pronounce sentence – convict and serve
Rosalinda Ramos) sentence

2. Under the RA, special aggravating  no violation – discharge him

circumstance if a crime has been committed and dismiss the proceeding
while the accused was high on drugs (P v.
Anthony Belgar)  if minor is drug dependent –
commit to a center for treatment and
3. Delivery or Sale of Prohibited Drugs – the rehabilitation
accused must be aware that what he is selling
or delivering was prohibited drug. But the TITLE SIX
moment the fact of sale or delivery is proved CRIMES AGAINST PUBLIC MORALS
by prosecution, the burden to prove that the
accused is not aware that drugs are Crimes against public morals
prohibited falls on the defense (P v. Aranda) 1. Gambling (Art. 195);
2. Importation, sale and possession of lottery
4. P v. Angelito Manalo – burden of proving tickets or advertisements (Art. 196);
the authority to possess shabu is a matter of 3. Betting in sport contests (Art. 197);
defense 4. Illegal betting on horse races (Art. 198);
5. Illegal cockfighting (Art. 199);
6. Grave scandal (Art. 200); Pinball machines or slot machines are considered
7. Immoral doctrines, obscene publications and gambling devices because the result depends
exhibitions (Art. 201); and upon chance or hazard.
8. Vagrancy and prostitution (Art. 202).
If the prizes do not come out of the funds or
contributions of the participants, there is no
Article 195. What Acts Are Punishable in lottery. (Uy vs. Palomar, 27 SCRA 287)
Gambling

Acts punished Article 196.

IMPORTATION, SALE AND POSSESSION OF
1. Taking part directly or indirectly in – LOTTERY TICKETS OR ADVERTISEMENTS

a. any game of monte, jueteng, or any other Acts punished

form of lottery, policy, banking, or
percentage game, dog races, or any other 1. Importing into the Philippines from any
game or scheme the results of which foreign place or port any lottery
depend wholly or chiefly upon chance or ticket or advertisement; or
hazard; or wherein wagers consisting of
money, articles of value, or representative 2. Selling or distributing the same in
of value are made; or connivance with the importer;

b. the exploitation or use of any other 3. Possessing, knowingly and with intent to
mechanical invention or contrivance to use them, lottery tickets or
determine by chance the loser or winner advertisements; or
of money or any object or representative
of value; 4. Selling or distributing the same without
connivance with the importer of the
2. Knowingly permitting any form of gambling same.
to be carried on in any place owned or
controlled by the offender; Note that possession of any lottery ticket or
advertisement is prima facie evidence of an intent
3. Being maintainer, conductor, or banker in to sell, distribute or use the same in the
a game of jueteng or similar game; Philippines.
4. Knowingly and without lawful purpose
possessing lottery list, paper, or other Article 197.
matter containing letters, figures, signs or BETTING IN SPORT CONTESTS
symbol which pertain to or are in any
manner used in the game of jueteng or any This article has been repealed by Presidential
similar game. Decree No. 483 (Betting, Game-fixing or Point-
shaving and Machinations in Sport Contests):
What is gambling?
It is a game or device or method, the PENALIZING BETTING, GAME-FIXING OR
result of which depends wholly or chiefly upon POINT-SHAVING AND
chance or hazard. So, if the game depends wholly MACHINATIONS IN SPORTS CONTESTS
upon skill or ability of the players, there is no PD 483
gambling.
 Acts Punishable:
The manner of determining whether the game a. Betting: Betting money or any object
played is prohibited or not is whether the result or article of value of representative value
will depend wholly or chiefly upon chance or upon the result of any game, races and other
hazard. sports contests.
b. Game-fixing: any arrangement,
Significantly, if the game has been identified and combination, scheme or agreement by which
declared as a form of gambling by express the result of any game, races, or sports
provision of law, there will be no need or contests shall be predicated and/or known
requirement to go into the methods upon how the other than on the basis of the honest playing
game is played. skill or ability of the players or participants.
c. Point-shaving: any such
What is lottery? arrangement combination, scheme or
It is a scheme for the distribution of agreement by which the skill or ability of any
prizes by chance among persons who have paid, player or participant in a fame, races, or
or agreed to pay, a valuable consideration for a sports contests to make points of scores
chance to obtain a prize. (US vs. Filart, et al., shall be limited deliberately in order to
30 Phil. 80)
 influence the result thereof in favor of one or 2. During provincial, city or municipal,
other team, player or participant. agricultural, commercial or industrial fair,
carnival or exposition for a similar period
d. Game Machination: any other of 3 days upon resolution of the province,
fraudulent, deceitful, unfair or dishonest city or municipality where such fair,
means, method, manner or practice carnival or exposition is to be held, subject
employed for the purpose of influencing the to the approval of the Chief of
result of any game, races or sports contest. Constabulary or his authorized
representative.
Article 198.
ILLEGAL BETTING ON HORSE RACE Limitations:
Acts punished a) No cockfighting on the occasion
of such fair, carnival or exposition shall be
Betting on horse races during periods not allowed allowed within the month of the local fiesta
by law; or for more than 2 occasions a year in the
same city of municipality.
Maintaining or employing a totalizer or other
device or scheme for betting on races or b) No cockfighting shall be held on
realizing profit therefrom during the December 30, June 12,November 30, Holy
periods not allowed by law. Thursday, Good Friday, Election Day and
during registration days for such
When horse races not allowed: election/referendum.

July 4 (Republic Act No. 137); 3. If the purpose is for the

entertainment of foreign dignitaries or for
December 30 (Republic Act No. 229); tourists, or for returning balikbayans, or
for the support of national fund-raising
Any registration or voting days (Republic Act No. campaigns for charitable purposes as may
180, Revised Election Code); and be authorized by the Office of the President
upon resolution of a provincial board, city
Holy Thursday and Good Friday (Republic Act No. or municipal council, in licensed cockpits
946). or in playgrounds or parks.

Article 199. Limitations: This privilege shall be extended for

ILLEGAL COCKFIGHTING only one time, for a period not exceeding 3 days,
within a year to a province, city or municipality.
This article has been modified or repealed by
Presidential Decree No. 449 (The Cockfighting E. No gambling of any kind shall be
Law of 1974): permitted on the premises of the cockpit or
place of cockfighting during cockfights.
COCKFIGHTING LAW OF 1974
PD 449 F. City or municipal mayors are
I. Scope – This law shall govern the authorized to issue licenses for the
establishment, operation, maintenance operation and maintenance of cockpits.
and ownership of cockpits.
II. Rules:
Presidential Decree No. 1602 (Simplifying and
A. Only Filipino citizens not otherwise Providing Stiffer Penalties for Violations of
inhibited by existing laws shall be allowed to Philippine Gambling Laws)
own, manage and operated cockpits.
Section 1. Violations and Penalties. --
B. Only one cockpit shall be allowed in The penalty of prision mayor in its medium
each city or municipality with a population of degree or a fine ranging from Five Hundred Pesos
100,000 or less. to Two Thousand Pesos and in case of recidivism
the penalty of prision correccional in its medium
C. Cockpits shall be constructed and degree or a fine of ranging from One Thousand
operated within the appropriate areas as Pesos to Six Thousand Pesos shall be imposed
prescribed in the Zoning Law or ordinance. upon:

D. When allowed: (a) Any person other than those

referred to in the succeeding subsection who in
1. Cockfighting shall be allowed only in any manner, shall directly or indirectly take part
licensed cockpits during Sundays and legal in any game of cockfighting, jueteng, bookies (jai-
holidays and during local fiestas for not alai or horse racing to include game fixing) and
more than 3 days; or other lotteries, cara y cruz or pompiang and the
like, black jack, lucky nine, “pusoy” or Russian
Poker, monte, baccarat and other card games, of gambling under it has been changed by the
palk que, domino, mahjong, high and low, slot new gambling law.
machines, roulette, pinball and other mechanical
inventories or devices, dog racing, boat racing, Before, the Revised Penal Code considered the
car raising and other races, basketball, volleyball, skill of the player in classifying whether a game is
boxing, seven-eleven dice games and the like and gambling or not. But under the new gambling
other contests to include game fixing, point law, the skill of the players is immaterial.
shaving and other machinations banking or
percentage game, or any other game or scheme, Any game is considered gambling where there are
whether upon chance or skill, which do not have bets or wagers placed with the hope to win a
a franchise from the national government, prize therefrom.
wherein wagers consisting of money, articles of
value of representative of value are made; Under this law, even sports contents like
boxing, would be gambling insofar as those
(b) Any person who shall knowingly who are betting therein are concerned.
permit any form of gambling referred to in the Under the old penal code, if the skill of the
preceding subdivision to be carried on in player outweighs the chance or hazard
inhabited or uninhabited places or any building, involved in winning the game, the game is
vessel or other means of transportation owned or not considered gambling but a sport. It was
controlled by him. If the place where gambling is because of this that betting in boxing and
carried on has a reputation of a gambling place basketball games proliferated.
or that prohibited gambling is frequently carried
on therein or the place is a public or government “Unless authorized by a franchise, any form of
building or barangay hall, the culprit shall be gambling is illegal.” So said the court in the
punished by the penalty provided for in its recent resolution of the case against the
maximum period and a fine of Six Thousand operation of jai-alai.
Pesos.
There are so-called parlor games which have
The penalty of prision correccional in its been exempted from the operation of the decree
maximum degree and a fine of Six Thousand like when the games are played during a wake to
Pesos shall be imposed upon the maintainer, keep the mourners awake at night. Pursuant to
conductor of the above gambling schemes. a memorandum circular issued by the Executive
Branch, the offshoot of the exemption is the
The penalty of prision mayor in its intentional prolonging of the wake of the dead by
medium degree and temporary absolute gambling lords.
disqualification and a fine of Six Thousand Pesos
shall be imposed if the maintainer, conductor or As a general rule, betting or wagering determines
banker is a government official, or if a player, whether a game is gambling or not. Exceptions:
promoter, referee, umpire, judge or coach in These are games which are expressly prohibited
cases of game-fixing, point-shaving and other even without bets. Monte, jueteng or any form of
game machination. lottery; dog races; slot machines; these are habit-
forming and addictive to players, bringing about
The penalty of prision correccional in its the pernicious effects to the family and economic
medium degree and a fine ranging from Five life of the players.
Hundred pesos to Two Thousand Pesos shall be
imposed upon any person who shall knowingly Mere possession of lottery tickets or lottery lists
and without lawful purpose in any hour of any is a crime punished also as part of gambling.
day shall have in his possession any lottery list, However, it is necessary to make a distinction
paper, or other matter containing letter, figures, whether a ticket or list refers to a past date or to
signs or symbols which pertain to or in any a future date.
manner used in the game of jueteng, jai-alai or
horse racing bookies and similar game or lottery Illustration:
which has taken place or about to take place.
X was accused one night and found in his
Section 2. Barangay Official. – Any possession was a list of jueteng. If the date
barangay official in whose jurisdiction such therein refers to the past, X cannot be convicted
gambling house is found and which house has of gambling or illegal possession of lottery list
the reputation of a gambling place shall suffer without proving that such game was indeed
the penalty of prision correccional in its medium played on the date stated. Mere possession is not
period and a fine ranging from Five Hundred to enough. If the date refers to the future, X can be
Two Thousand Pesos and temporary absolute convicted by the mere possession with intent to
disqualifications. use. This will already bring about criminal
liability and there is no need to prove that the
While the acts under the Revised Penal Code are game was played on the date stated. If the
still punished under the new law, yet the concept possessor was caught, chances are he will not go
on with it anymore.
 illegal gambling under Presidential
There are two criteria as to when the lottery is in Decree No. 1602.
fact becomes a gambling game:
(2) The merchandise is not really saleable
1. If the public is made to pay not only for the because of its inferior quality. A certain
merchandise that he is buying, but also for manufacturer, Bhey Company,
the chance to win a prize out of the lottery, manufacture cigarettes which is not
lottery becomes a gambling game. Public is saleable because the same is irritating to
made to pay a higher price. the throat, sponsored a lottery and a
coupon is inserted in every pack of
2. If the merchandise is not saleable because of cigarette so that one who buys it shall
its inferior quality, so that the public actually have a chance to participate. Due to the
does not buy them, but with the lottery the coupons, the public started buying the
public starts patronizing such merchandise. cigarette. Although there was no price
In effect, the public is paying for the lottery increase in the cigarettes, the lottery can
and not for the merchandise, and therefore be considered a gambling game because
the lottery is a gambling game. Public is not the buyers were really after the coupons
made to pay a higher price. not the low quality cigarettes.

Illustrations: If without the lottery or raffle, the public

does not patronize the product and starts
(1) A certain supermarket wanted to to patronize them only after the lottery or
increase its sales and sponsored a lottery raffle, in effect the public is paying for
where valuable prices are offered at the price not the product.
stake. To defray the cost of the prices
offered in the lottery, the management
increased their prices of the merchandise Under this decree, a barangay captain who is
by 10 cents each. Whenever someone responsible for the existence of gambling dens in
buys from that supermarket, he pays 10 their own locality will be held liable and
cents more for each merchandise and for disqualified from office if he fails to prosecute
his purchase, he gets a coupon which is these gamblers. But this is not being
to be dropped at designated drop boxes implemented.
to be raffled on a certain period.
Gambling, of course, is legal when authorized by
The increase of the price is to answer for law.
the cost of the valuable prices that will be
covered at stake. The increase in the Fund-raising campaigns are not gambling. They
price is the consideration for the chance are for charitable purposes but they have to
to win in the lottery and that makes the obtain a permit from Department of Social
lottery a gambling game. Welfare and Development. This includes
concerts for causes, Christmas caroling, and the
But if the increase in prices of the like.
articles or commodities was not general,
but only on certain items and the OFFENSES AGAINST DECENCY AND GOOD
increase in prices is not the same, the CUSTOMS
fact that a lottery is sponsored does not Article 200
appear to be tied up with the increase in GRAVE SCANDAL
prices, therefore not illegal.
 ELEMENTS:
Also, in case of manufacturers, you have a. Offender performs an act
to determine whether the increase in the b. Act is highly scandalous as offending
price was due to the lottery or brought against decency or good customs
about by the normal price increase. If c. Highly scandalous conduct does not
the increase in price is brought about by expressly fall within any other article
the normal price increase [economic of the RPC
factor] that even without the lottery the d. Committed in a public place or within
price would be like that, there is no the public knowledge or view. (The
consideration in favor of the lottery and public view is not required, it is sufficient if
the lottery would not amount to a in public place. For public knowledge, it
gambling game. may occur even in a private place; the
number of people who sees it is not
If the increase in the price is due material).
particularly to the lottery, then the
lottery is a gambling game. And the  GRAVE SCANDAL: consists of acts which are
sponsors thereof may be prosecuted for offensive to decency and good customs. They
are committed publicly and thus, give rise to
 public scandal to persons who have (1) A man and a woman enters a movie
accidentally witnessed the acts house which is a public place and then goes
to the darkest part of the balcony and while
* The crime of grave scandal is a crime against there the man started performing acts of
public morals. Necessarily, the offender must lasciviousness on the woman.
commit the crime in a public place or within the
view of the public. If it is against the will of the woman, the crime
would be acts of lasciviousness. But if there is
In grave scandal, the scandal involved refers to mutuality, this constitutes grave scandal.
moral scandal offensive to decency, although it Public view is not necessary so long as it is
does not disturb public peace. But such conduct performed in a public place.
or act must be open to the public view.
(2) A man and a woman went to Luneta and
In alarms and scandals, the scandal involved slept there. They covered themselves their
refers to disturbances of the public tranquility blanket and made the grass their conjugal
and not to acts offensive to decency. bed.

 Decency: means properly observing the This is grave scandal.

requirements of modesty, good taste etc
(3) In a certain apartment, a lady tenant had
 Customs: refers to established usage, social the habit of undressing in her room without
conventions carried on by tradition and shutting the blinds. She does this every night
enforced by social disapproval in case of at about eight in the evening. So that at this
violation hour of the night, you can expect people
outside gathered in front of her window
 If the acts complained of are punishable looking at her silhouette. She was charged of
under another provision of the RPC, Art 200 grave scandal. Her defense was that she was
is not applicable doing it in her own house.

* Any act which is notoriously offensive to It is no defense that she is doing it in her private
decency may bring about criminal liability for the home. It is still open to the public view.
crime of grave scandal provided such act does
not constitute some other crime under the (4) In a particular building in Makati which
Revised Penal Code. Grave scandal is a crime of stands right next to the house of a young lady
last resort. who goes sunbathing in her poolside. Every
morning several men in the upper floors
 The essence of grave scandal is publicity and would stick their heads out to get a full view
that the acts committed are not only contrary of said lady while in her two-piece swimsuit.
to morals and good customs but must The lady was then charged with grave
likewise be of such character as to cause scandal. Her defense was that it is her own
public scandal to those witnessing it. private pool and it is those men looking down
at her who are malicious.
Distinction should be made as to the place
where the offensive act was This is an act which even though done in a private
committed, whether in the public place is nonetheless open to public view.
place or in a private place: Article 201
IMMORAL DOCTRINES, OBSCENE
(1) In public place, the criminal liability PUBLICATIONS AND EXHIBITIONS:
arises irrespective of whether the  Persons liable:
immoral act is open to the public view. a. Those who publicly expound or
In short public view is not required. proclaim doctrines that are contrary to
public morals
(2) When act offensive to decency is done in b. Authors of obscene literature,
a private place, public view or public published with their knowledge in any
knowledge is required. form
c. Editors publishing such obscene
* Public view does not require numerous persons. literature
Even if there was only one person who witnessed d. Owners or operators of
the offensive act for as long as the third person establishments selling obscene
was not an intruder, grave scandal is committed literature
provided the act does not fall under any other e. Those who exhibit indecent or
crime in the Revised Penal Code. immoral plays, scenes, acts or shows
ion theaters, fairs, cinemas or any
Illustrations: other place
 f. Those who sell, distribute, or
exhibit prints, engraving, sculptures or
literature which are offensive to morals Article 202
VAGRANTS AND PROSTITUTES:
 MORALS: implies conformity to generally  Who are considered vagrants:
accepted standards of goodness or rightness
in conduct or character a. Those who have no apparent means of
subsistence and who have the physical
 TEST OF OBSCENITY: whether the matter ability to work yet neglect to apply
has a tendency to deprave or corrupt the themselves to some useful calling
minds of those who are open to immoral b. Persons found loitering around public
influences. A matter can also be considered and semi-public places without visible
obscene if it shocks the ordinary and means of support
common sense of men as indecency. c. Persons tramping or wandering around
the country or the streets with no visible
> The test is objective. It is more on the effect means of support
upon the viewer and not alone on the conduct of d. Idle or dissolute persons lodging in
the performer. houses of ill-fame
e. Ruffians or pimps and those who
* If the material has the tendency to deprave and habitually associate with prostitutes
corrupt the mind of the viewer then the same is (may include even the rich)
obscene and where such obscenity is made f. Persons found loitering in inhabited or
publicly, criminal liability arises. uninhabited places belonging to others,
without any lawful or justifiable reason
* The law is not concerned with the moral of one provided the act does not fall within any
person. As long as the pornographic matter or other article of the RPC
exhibition is made privately, there is no crime
committed under the Revised Penal Code because If fenced and with Trespass to dwelling
what is protected is the morality of the public in prohibition of entry
general.
If fenced and entered to Attempted theft
* In committing this crime, there must be hunt/fish
publicity. It means the act or acts done must
come to the knowledge of third persons. If not fenced and with Vagrancy
no prohibition of entry
 However, Art 201 enumerates what are
considered as obscene literature or  Who are considered prostitutes - refer to
immoral or indecent plays, scenes or women who habitually indulge in sexual
acts: intercourse or lascivious conduct for money
a. those w/c glorify criminals or condone or profit (if a man indulges in the same
crimes conduct: vagrancy)
b. those w/c serve no other purpose but to
satisfy the market for violence, lust or * In law the mere indulging in lascivious conduct
pornography habitually because of money or gain would
c. those w/c offend against any race or amount to prostitution, even if there is no sexual
religion intercourse. Virginity is not a defense.
d. those w/c tend to abet the traffic in and Habituality is the controlling factor; it has to be
the use of prohibited drugs more than one time.
e. those that are contrary to law, public
order, morals, good customs, established * There cannot be prostitution by conspiracy. One
policies, lawful orders, decrees and edicts who conspires with a woman in the prostitution
business like pimps, taxi drivers or solicitors of
 Mere nudity in paintings and pictures is not clients are guilty of the crime under Article 341
obscene for white slavery.

 Pictures w/ a slight degree of obscenity TITLE SEVEN

having no artistic value and intended for CRIMES COMMITTED BY PUBLIC OFFICERS
commercial purposes fall within this article
Crimes committed by public officers
 Publicity is an essential element 1. Knowingly rendering unjust judgment
(Art. 204);
* Sexual indulgence is not in itself immoral if 2. Judgment rendered through negligence
done within the bounds of privacy and performed (Art. 205);
normally. The moment the parties carry their 3. Unjust interlocutory order (Art. 206);
private rights and privileges to public view, they
expose themselves to public scrutiny.
4. Malicious delay in the administration of
justice (Art. 207); * The designation of the title is misleading.
5. Prosecution of offenses; negligence and Crimes under this title can be committed by
tolerance (Art. 208); public officers or a non-public officer, when the
6. Betrayal of trust by an attorney or latter become a conspirator with a public officer,
solicitor – Revelation of secrets (Art. 209); or an accomplice, or accessory to the crime. The
7. Direct bribery (Art. 210); public officer has to be the principal.
8. Indirect bribery (Art. 211);
9. Qualified bribery (Art. 211-A); * In some cases, it can even be committed by a
10. Corruption of public officials (Art. 212); private citizen alone such as in Article 275
11. Frauds against the public treasury and (infidelity in the custody of a prisoner where the
similar offenses (Art. 213); offender is not a public officer) or in Article 222
12. Other frauds (Art. 214); (malversation).
13. Prohibited transactions (Art. 215);
14. Possession of prohibited interest by a Article 203
public officer (Art. 216); WHO ARE PUBLIC OFFICERS:
15. Malversation of public funds or property a. Takes part in the performance of
– Presumption of malversation (Art. 217) public functions in the
16. Failure of accountable officer to render Government, or
accounts (Art. 218);
17. Failure of a responsible public officer to b. Performs public duties as an
render accounts before leaving the employee, agent or subordinate
country (Art. 219); official in the gov’t or any of its
18. Illegal use of public funds or property branches
(Art. 220);
19. Failure to make delivery of public funds  Notes:
or property (Art. 221); Public officer must derive his authority from:
20. Conniving with or consenting to evasion 1. direct provision of law
(Art. 223); 2. popular election
21. Evasion through negligence (Art. 224); 3.appointment by competent authority
22. Escape of prisoner under the custody of
a person not a public officer (Art. 225); * In defining the term “public officers”, the law
23. Removal, concealment or destruction of makes the reference to the manner by which he
documents (Art. 226); is appointed to public office. He thus becomes a
24. Officer breaking seal (Art. 227); public officer because of his appointment by
25. Opening of closed documents (Art. 228); competent authority or because he is elected to
26. Revelation of secrets by an officer (Art. public office.
229);
27. Public officer revealing secrets of private Public officers: embraces every public servant
individual (Art. 230); from the lowest to the highest rank
28. Open disobedience (Art. 231);
29. Disobedience to order of superior officer Under Republic Act No. 3019 (The Anti-Graft and
when said order was suspended by Corrupt Practices Act), the term public officer is
inferior officer (Art. 232); broader and more comprehensive because it
30. Refusal of assistance (Art. 233); includes all persons whether an official or an
31. Refusal to discharge elective office (Art. employee, temporary or not, classified or not,
234); contractual or otherwise. Any person who
32. Maltreatment of prisoners (Art. 235); receives compensation for services rendered is a
33. Anticipation of duties of a public office public officer.
(Art. 236);
34. Prolonging performance of duties and * A government laborer is not a public officer.
powers (Art. 237); However, temporary performance by a laborer of
35. Abandonment of office or position (Art. public functions makes him a public officer
238); * Crimes committed by public officers are nothing
36. Usurpation of legislative powers (Art. but corruption in public service.
239);
37. Usurpation of executive functions (Art. Breach of oath of office partakes of three
240); forms:
38. Usurpation of judicial functions (Art.
241); a. Misfeasance: means improper performance of
39. Disobeying request for disqualification an act which might be properly be performed
(Art. 242); b. Malfeasance: means performance of an act
40. Orders or requests by executive officers which ought not to be done
to any judicial authority (Art. 243); c. Nonfeasance: means omission of an act
41. Unlawful appointments (Art. 244); and which ought to be done
42. Abuses against chastity (Art. 245).
Malfeasance Doing of an act which a public b. Renders a judgment in a case
officer should not have done submitted to him for decision
c. Judgment is manifestly unjust
Misfeasance Improper doing of an act which a d. Due to inexcusable negligence or
person might lawfully do ignorance

Nonfeasance Failure of an agent to perform  MANIFESTLY UNJUST JUDGMENT: one

his undertaking for the principal that is so contrary to law that even a person
having meager knowledge of the law cannot
Article 204: doubt the injustice
KNOWINGLY RENDERING AN UNJUST
JUDGMENT * The unjust judgment is merely the result of
inexcusable negligence or ignorance of the law.
 ELEMENTS: The ignorance may refer to substantive or
a. Offender is a judge procedural law. There must be an apparent and
b. Renders a judgment in the case notorious manifestation of lack of logic and false
submitted to him for judgment interpretation of the law. (Cortes vs. Catral, 279
c. Judgment is unjust SCRA 1)
d. Knowledge that the decision is
unjust Article 206
UNJUST INTERLOCUTORY ORDER
 Notes:
JUDGMENT: is a final consideration and  ELEMENTS:
determination by a court of competent a. That the offender is a judge.
jurisdiction of the issues submitted to it in an
action or proceeding b. That he performs any of the
following acts:
* The law requires that the judgment must be 1. knowingly renders unjust interlocutory
written in the official language, personally and order or decree, or
directly prepared by the judge, and signed by 2. renders a manifestly unjust interlocutory
him. It must contain a clear and distinct order or decree through inexcusable
statement of facts proved or admitted by the negligence or ignorance.
defendant and upon which the judgment is
based.  INTERLOCUTORY ORDER: one issued by
the court deciding a collateral or incidental
UNJUST JUDGMENT: one which is contrary to matter. It is not a final determination of the
law, or not supported by the evidence, or both issues of the action or proceeding

An unjust judgment may result from: * The crime of knowingly rendering an unjust
1. error (with bad faith) judgment, or knowingly issuing an unjust
2. ill-will or revenge interlocutory order, may be committed only by a
3. bribery judge of a trial court and never of an appellate
court. The reason for this is that in appellate
* There must be evidence that the decision court, not only one magistrate renders or issues
rendered is unjust. It is not presumed the interlocutory order. An appellate court
functions as a division and the resolutions
* To be liable for the above crime, not only must thereof are handed down only after deliberations
the judgment be proved to be unjust .it must among the members of a division so that it
likewise be established to have been knowingly cannot be said that there is malice or inexcusable
rendered. There must be a conscious and negligence or ignorance in the rendering of a
deliberate intent to do an injustice. This usually judgment or order that is supposedly unjust as
occurs when the judge entertains hatred, envy, held by the Supreme Court in one administrative
revenge, or greed against one of the parties. case.

* Abuse of discretion or mere error of judgment Article 207

cannot likewise serve as basis for rendering an MALICIOUS DELAY IN THE ADMINISTRATION
unjust judgment in the absence of proof or even OR JUSTICE
an allegation of bad faith (motive or improper  ELEMENTS:
consideration). a. That the offender is a judge.
Article 205 b. That there is a proceeding in his court.
JUDGMENT RENDERED THROUGH c. That he delays the administration of
NEGLIGENCE justice.
 ELEMENTS: d. That the delay is malicious, that is, the
a. Offender is a judge delay is caused by the judge with
deliberate intent to inflict damage on
either party in the case.
  There must be a duty on the part of the
 Mere delay without malice is not punishable public officer to prosecute or move for the
prosecution of the offender. Note however,
* Malice must be proven. Malice is present where that a fiscal is under no compulsion to file an
the delay is sought to favor one party to the information based upon a complaint if he is
prejudice of the other. not convinced that the evidence before him
does not warrant filing an action in court
* These have been interpreted by the Supreme
Court to refer only to judges of the trial court. When a policeman tolerates the commission of a
crime or otherwise refrains from apprehending the
* The Constitution provides that cases submitted offender, such peace officer cannot be prosecuted
for decision before the Supreme Court must be for this crime but they can be prosecuted as:
resolved within two years. Before the Court of
Appeals, such cases must be resolved within 1 (1) An accessory to the crime committed by
year; and before the Regional Trial Court and the principal in accordance with Article
Metropolitan Trial Court, such cases must be 19, paragraph 3; or
decided within a period of three months or ninety
days. (2) He may become a fence if the crime
committed is robbery or theft, in which
Article 208 case he violates the Anti-Fencing Law; or
PROSECUTION OF OFFENSES; NEGLIGENCE
AND TOLERANCE (3) He may be held liable for violating the
Anti-Graft and Corrupt Practices Act.
Acts Punished
1. Maliciously refraining from instituting Illustration:
prosecution against violators of the law;
The offender was caught for white slavery. The
2. Maliciously tolerating the commission of policeman allowed the offender to go free for some
offenses. consideration. The policeman does not violate
Article 208 but he becomes an accessory to the
 ELEMENTS OF DERELICTION OF DUTY IN crime of white slavery.
THE PROSECUTION OF OFFENSES:
a. That the offender is a public officer or But in the crime of theft or robbery, where the
officer of the law who has a duty to policeman shared in the loot and allowed the
cause the prosecution of, or to offender to go free, he becomes a fence. Therefore,
prosecute offenses. he is considered an offender under the Anti-
Fencing Law.
b. That there is dereliction of the duties
of his office, that is, knowing the However, in distant provinces or municipalities
commission of the crime, he does not where there are no municipal attorneys, the local
cause (a) the prosecution of the chief of police is the prosecuting officer. If he is
criminal (People vs. Rosales, G.R. no. the one who tolerates the violations of laws or
42648) or (b) knowing that a crime is otherwise allows offenders to escape, he can be
about to be committed he tolerates its prosecuted under this article.
commission (if gift/promise is a
consideration for his conduct: direct bribery) This is also true in the case of a barangay
chairman. They are supposed to prosecute
c. That the offender acts with malice and violators of laws within their jurisdiction. If they
deliberate intent to favor the violator do not do so, they can be prosecuted for this
of the law. crime.

 PREVARICACION: negligence and tolerance  The crime must be proved first before an
in the prosecution of an offense officer can be convicted of dereliction of duty

* A public officer engaged in the prosecution of  A public officer who harbors, conceals, or
offenders shall maliciously tolerate the assists in the escape of an offender, when it
commission of crimes or refrain from prosecuting is his duty to prosecute him is liable as
offenders or violators of the law. principal in the crime of dereliction of duty in
the prosecution of offenses. He is not an
* This crime can only be committed by a public accessory
officer whose official duty is to prosecute
offenders, that is, state prosecutors. Hence, those  Article not applicable to revenue officers
officers who are not duty bound to perform these * Relative to this crime under Article 208,
obligations cannot commit this crime in the strict consider the crime of qualified bribery. Among
sense. the amendments made by Republic Act No. 7659
on the Revised Penal Code is a new provision corresponding to the crime agreed upon, if the
which reads as follows: crime shall have been committed.

Article. 211-A. Illustration:

Qualified Bribery – If any public
officer is entrusted with law A fiscal, for a sum of money, refrains from
enforcement and he refrains from prosecuting a person charged before him. If the
arresting or prosecuting an penalty for the crime involved is reclusion
offender who has committed a perpetua, the fiscal commits qualified bribery. If
crime punishable by Reclusion the crime is punishable by a penalty lower than
Perpetua and/or death in reclusion perpetua, the crime is direct bribery.
consideration of any offer,
promise, gift, or present, he shall In the latter situation, three crimes are
suffer the penalty for the offense committed: direct bribery and dereliction of duty
which was not prosecuted. on the part of the fiscal; and corruption of a public
officer by the giver.
If it is the public officer
who asks or demands such gift or Article 209
present, he shall suffer the BETRAYAL OF TRUST BY AN ATTORNEY OR
penalty of death. SOLICITOR
(NOT NECESSARILY A PUBLIC OFFICER
* Actually the crime is a kind of direct bribery ALTHOUGH ALL LAWYERS ARE OFFICERS OF
where the bribe, offer, promise, gift or present THE COURT)
has a consideration on the part of the public
officer, that is refraining from arresting or  ACTS PUNISHED:
prosecuting the offender in consideration for a. Causing damage to client
such offer, promise, gift or present. In a way, (prejudice is essential) either
this new provision modifies Article 210 of the 1. by any malicious breach of
Revised Penal Code on direct bribery. professional duty, or

* However, the crime of qualified bribery may be 2. by inexcusable negligence or ignorance.

committed only by public officers “entrusted with
enforcement” whose official duties authorize then b. Revealing any of the secrets of his
to arrest or prosecute offenders. Apparently, they client learned by him in his
are peace officers and public prosecutors since the professional capacity (damage not
nonfeasance refers to “arresting or prosecuting.” necessary)
But this crime arises only when the offender
whom such public officer refrains from arresting or c. Undertaking the defense of the
prosecuting, has committed a crime punishable by opposing party of the 1st client and/or
reclusion perpetua and/or death. If the crime having received confidential
were punishable by a lower penalty, then such information from the latter and
nonfeasance by the public officer would amount to without the latter’s consent (damage not
direct bribery, not qualified bribery. necessary)

* If the crime was qualified bribery, the dereliction Note: When the attorney acts with malicious
of the duty punished under Article 208 of the abuse of his employment or inexcusable
Revised Penal Code should be absorbed because negligence or ignorance, there must be damage to
said article punishes the public officer who his client.
“maliciously refrains from instituting prosecution * Under the rules on evidence, communications
for the punishment of violators of the law or shall made with prospective clients to a lawyer with a
tolerate the commission of offenses”. The view to engaging his professional services are
dereliction of duty referred to is necessarily already privileged even though the client-lawyer
included in the crime of qualified bribery. relationship did not eventually materialize
because the client cannot afford the fee being
* On the other hand, if the crime was direct asked by the lawyer. The lawyer and his
bribery under Article 210 of the Revised Penal secretary or clerk cannot be examined thereon.
Code, the public officer involved should be
prosecuted also for the dereliction of duty, which * That this communication with a prospective
is a crime under Article 208 of the Revised Penal client is considered privileged, implies that the
Code, because the latter is not absorbed by the same is confidential. Therefore, if the lawyer
crime of direct bribery. This is because in direct would reveal the same or otherwise accept a case
bribery, where the public officer agreed to from the adverse party, he would already be
perform an act constituting a crime in connection violating Article 209. Mere malicious breach
with the performance of his official duties, Article without damage is not violative of Article 209; at
210 expressly provides that the liabilty most he will be liable administratively as a
thereunder shall be “in addition to the penalty
lawyer, e.g., suspension or disbarment under the Note that only numbers 1, 2 and 3 must
Code of Professional Responsibility. approximate malice.

Illustration: * A lawyer who had already undertaken the case

of a client cannot later on shift to the opposing
B, who is involved in the crime of seduction party. This cannot be done.
wanted A, an attorney at law, to handle his case.
A received confidential information from B. * Under the circumstances, it is necessary that
However, B cannot pay the professional fee of A. the confidential matters or information was
C, the offended party, came to A also and the confided to the lawyer in the latter’s professional
same was accepted. capacity.

A did not commit the crime under Article 209, * It is not the duty of the lawyer to give advice on
although the lawyer’s act may be considered the commission of a future crime. It is, therefore,
unethical. The client-lawyer relationship between not privileged in character. The lawyer is not
A and B was not yet established. Therefore, there bound by the mandate of privilege
is no trust to violate because B has not yet communication if he reports such commission of
actually engaged the services of the lawyer A. A a future crime. It is only confidential information
is not bound to B. However, if A would reveal the relating to crimes already committed that are
confidential matter learned by him from B, then covered by the crime of betrayal of trust if the
Article 209 is violated because it is enough that lawyer should undertake the case of opposing
such confidential matters were communicated to party or otherwise divulge confidential
him in his professional capacity, or it was made information of a client.
to him with a view to engaging his professional
services. * Under the law on evidence on privileged
communication, it is not only the lawyer who is
Here, matters that are considered confidential protected by the matter of privilege but also the
must have been said to the lawyer with the view office staff like the secretary.
of engaging his services. Otherwise, the
communication shall not be considered privileged * The nominal liability under this article may be
and no trust is violated. constituted either from breach of professional
duties in the handling of the case or it may arise
Illustration: out of the confidential relation between the lawyer
and the client.
A went to B, a lawyer/notary public, to have a
document notarized. A narrated to B the detail of BREACH OF PROFESSIONAL DUTY
the criminal case. If B will disclose what was
narrated to him there is no betrayal of trust since > Tardiness in the prosecution of the case for
B is acting as a notary public and not as a which reason the case was dismissed for being
counsel. The lawyer must have learned the non-prosecuted; or tardiness on the part of the
confidential matter in his professional capacity. defense counsel leading to declaration of default
and adverse judgment.
Several acts which would make a lawyer
criminally liable: > Professional duties – Lawyer must appear on
time. But the client must have suffered damage
(1) Maliciously causing damage to his client due to the breach of professional duty.
through a breach of his professional Otherwise, the lawyer cannot be held liable.
duty. The breach of professional duty
must be malicious. If it is just > If the prosecutor was tardy and the case was
incidental, it would not give rise to dismissed as non-prosecuted, but he filed a
criminal liability, although it may be the motion for reconsideration which was granted,
subject of administrative discipline; and the case was continued, the lawyer is not
liable, because the client did not suffer damage.
(2) Through gross ignorance, causing
damage to the client; > If lawyer was neglectful in filing an answer,
and his client declared in default, and there was
(3) Inexcusable negligence; an adverse judgment, the client suffered
damages. The lawyer is liable.
(4) Revelation of secrets learned in his
professional capacity; BREACH OF CONFIDENTIAL RELATION

(5) Undertaking the defense of the opposite > Revealing information obtained or taking
party in a case without the consent of the advantage thereof by accepting the engagement
first client whose defense has already with the adverse party. There is no need to prove
been undertaken. that the client suffered damages. The mere
breach of confidential relation is punishable.
 produce the felony as a consequence. In direct
> In a conjugal case, if the lawyer disclosed the bribery, it is possible only if the corruptor concurs
confidential information to other people, he with the offender. Once there is concurrence, the
would be criminally liable even though the client direct bribery is already consummated. In short,
did not suffer any damage. the offender could not have performed all the acts
of execution to produce the felony without
> The client who was suing his wife disclosed consummating the same.
that he also committed acts of unfaithfulness.
The lawyer talked about this to a friend. He is, * Actually, you cannot have a giver unless there is
thus, liable. one who is willing to receive and there cannot be a
receiver unless there is one willing to give. So this
Article 210 crime requires two to commit. It cannot be said,
DIRECT BRIBERY therefore, that one has performed all the acts of
execution which would produce the felony as a
 ELEMENTS: consequence but for reasons independent of the
a. That the offender be a public officer will, the crime was not committed.
within the scope of Art 203
* It is now settled, therefore, that the crime of
b. That the offender accepts an offer or bribery and corruption of public officials cannot be
promise or receives a gift or present by committed in the frustrated stage because this
himself or through another requires two to commit and that means a meeting
of the minds.
c. That such offer or promise be accepted
or gift/present received by the public Illustrations:
officer (mere agreement consummates the
crime) (1) If the public official accepted the corrupt
consideration and turned it over to his
1. with a view to committing some crime superior as evidence of the corruption, the
(delivery of consideration is not necessary) offense is attempted corruption only and not
or frustrated. The official did not agree to be
corrupted.
2. in consideration of an execution of an act
which does not constitute a crime, but the If the public officer did not report the same to his
act must be unjust (delivery of superior and actually accepted it, he allowed
consideration is necessary), or himself to be corrupted. The corruptor
becomes liable for consummated corruption
3. to refrain from doing something which is of public official. The public officer also
his official duty to do becomes equally liable for consummated
bribery.
d. That the act which the offender agrees
to perform or which he executes be (2) If a public official demanded something from
connected with the performance of his a taxpayer who pretended to agree and use
official duties marked money with the knowledge of the
police, the crime of the public official is
* Bribery refers to the act of the receiver and the attempted bribery. The reason is that
act of the giver is corruption of public official. because the giver has no intention to
corrupt her and therefore, he could not
 For purposes of this article, temporary perform all the acts of execution.
performance of public functions is sufficient to
constitute a person a public officer. Be sure that what is involved is a crime of
bribery, not extortion. If it were extortion,
 A private person may commit this crime only the crime is not bribery, but robbery. The one
in the case in which custody of prisoners is who yielded to the demand does not commit
entrusted to him corruption of a public officer because it was
involuntary.
 Applicable also to assessors, arbitrators,
appraisal and claim commissioners, experts  Bribery exists when the gift is:
or any other person performing public duties a. voluntarily offered by a private person

 Cannot be frustrated, only attempted or b. solicited by the public officer and

consummated. voluntarily delivered by the private
person
* Direct bribery may be committed only in the
attempted and consummated stages because, in c. solicited by the public officer but the
frustrated felony, the offender must have private person delivers it out of fear of
performed all the acts of execution which would the consequences should the public
 officer perform his functions (here the had been doing this before. So they were
crime by giver is not corruption of public waiting for the chance to entrap him. They
officials due to involuntariness) were apprehended and they said they have
not done anything yet.
 Actual receipt of the gift is not only if acts
constitutes a crime necessary. An accepted Under Article 210, the mere agreement to commit
offer or promise of a gift is sufficient. the act, which amounts to a crime, is
However, if the offer is not accepted, only the already bribery. That stenographer becomes
person offering the gift is liable for attempted liable already for consummated crime of
corruption of a public officer bribery and the party who agreed to give
that money is already liable for
 The gift must have a value or capable of consummated corruption, even though not a
pecuniary estimation. It could be in the form single centavo is delivered yet and even
of money, property or services though the stenographer had not yet made
the alterations.
 If the act required of the public officer
amounts to a crime and he commits it, he If he changed the transcript, another
shall be liable for the penalty corresponding crime is committed: falsification.
to the crime in addition to the penalty for
bribery * The same criterion will apply with respect to a
public officer who agrees to refrain from
* In direct bribery, consider whether the official performing his official duties. If the refraining
act, which the public officer agreed to would give rise to a crime, such as refraining to
do, is a crime or not. prosecute an offender, the mere agreement to do
so will consummate the bribery and the
* If it will amount to a crime, it is not corruption, even if no money was delivered to
necessary that the corruptor should deliver the him. If the refraining is not a crime, it would
consideration or the doing of the act. The moment only amount to bribery if the consideration be
there is a meeting of the minds, even without the delivered to him.
delivery of the consideration, even without the
public officer performing the act amounting to a * If it is not a crime, the consideration must be
crime, bribery is already committed on the part of delivered by the corruptor before a public officer
the public officer. Corruption is already can be prosecuted for bribery. Mere agreement, is
committed on the part of the supposed giver. The not enough to constitute the crime because the
reason is that the agreement is a conspiracy act to be done in the first place is legitimate or in
involving the duty of a public officer. The mere the performance of the official duties of the public
agreement is a felony already. official.
If the public officer commits the act which
constitutes the crime, he, as well as the corruptor * Unless the public officer receives the
shall be liable also for that other crime. consideration for doing his official duty, there is
no bribery. It is necessary that there must be
Illustrations: delivery of monetary consideration. This is so
because in the second situation, the public officer
(1) If the corruptor offers a consideration to a actually performed what he is supposed to
custodian of a public record to remove certain perform. It is just that he would not perform
files, the mere agreement, without delivery of what he is required by law to perform without an
the consideration, brings about the crime of added consideration from the public which gives
direct bribery and corruption of public official. rise to the crime.

If the records were actually removed, both the * The idea of the law is that he is being paid
public officer and the corruptor will in salary for being there. He is not supposed to
addition to the two felonies above, will also demand additional compensation from the public
be liable for the crime committed, which is before performing his public service. The
infidelity in the custody of the public records prohibition will apply only when the money is
for which they shall be liable as principals; delivered to him, or if he performs what he is
one as principal by inducement, the other as supposed to perform in anticipation of being paid
principal by direct participation. the money.

(2) A party litigant approached the court’s * Here, the bribery will only arise when there is
stenographer and proposed the idea of already the acceptance of the consideration
altering the transcript of stenographic notes. because the act to be done is not a crime. So,
The court stenographer agreed and he without the acceptance, the crime is not
demanded P 2,000.00. committed.

Unknown to them, there were law enforcers who  The third type of bribery and prevaricacion
already had a tip that the court stenographer (art 208) are similar offenses, both consisting
 of omissions to do an act required to be falsely charging him of having committed one,
performed. In direct bribery however, a gift or threatening to arrest him if he will not come
promise is given in consideration of the across with some consideration, the crime is
omission. This is not necessary in Robbery.
prevaricacion
Article 211
Distinction between direct bribery and INDIRECT BRIBERY
indirect bribery
 ELEMENTS:
Bribery is direct when a public officer is called a. That the offender is a public
upon to perform or refrain from performing an officer.
official act in exchange for the gift, present or
consideration given to him. b. That he accepts gifts.

If he simply accepts a gift or present given to him c. That the said gifts are offered to
by reason of his public position, the crime is him by reason of his office.
indirect bribery. Bear in mind that the gift is
given "by reason of his office", not "in  The gift is given in anticipation of future
consideration" thereof. So never use the term favor from the public officer
“consideration.” The public officer in Indirect Indirect bribery, the public officer receives or
bribery is not to perform any official act. accepts gifts, money or anything of value by
reason of his office. If there is only a promise of a
* Note however that what may begin as an gift or money, no crime is committed because of
indirect bribery may actually ripen into direct the language of the law which uses the phrase
bribery. “shall accept gifts.”

Illustration:  There must be clear intention on the part of

the public officer to take the gift offered and
Without any understanding with the public officer, consider the property as his own for that
a taxi operator gave an expensive suiting material moment. Mere physical receipt
to a BLT registrar. Upon receipt by the BLT unaccompanied by any other sign,
registrar of his valuable suiting material, he asked circumstance or act to show such acceptance
who the giver was. He found out that he is a taxi is not sufficient to convict the officer
operator. As far as the giver is concerned, he is
giving this by reason of the office or position of * The Supreme Court has laid down the rule that
the public officer involved. It is just indirect for indirect bribery to be committed, the public
bribery officer must have performed an act of
appropriating of the gift for himself, his family or
If the BLT registrar calls up his subordinates and employees. It is the act of appropriating that
said to take care of the taxis of the taxi operator signifies acceptance. Merely delivering the gift to
so much so that the registration of the taxis is the public officer does not bring about the crime.
facilitated ahead of the others, what originally Otherwise it would be very easy to remove a
would have been indirect bribery becomes direct public officer: just deliver a gift to him.
bribery.
 There is no attempted or frustrated indirect
Bribery (210) Robbery (294) bribery
When the victim has When the victim did not
committed a crime and commit a crime and he is  The principal distinction between direct and
gives money/gift to avoid intimidated with arrest indirect bribery is that in the former, the
arrest or prosecution. and/or prosecution to officer agrees to perform or refrain from doing
deprive him of his personal an act in consideration of the gift or promise.
property. In the latter case, it is not necessary that the
Victim parts with his Victim is deprived of his officer do any act. It is sufficient that he
money or property money or property by force accepts the gift offered by reason of his office
voluntarily. or intimidation.
 Public officers receiving gifts and private
* Robbery should be distinguished from Bribery persons giving gifts on any occasion,
where a law enforcer, say a policeman, extorts including Christmas are liable under PD 46.
money from a person, employing intimidation
and threatening to arrest the latter if he will not  The criminal penalty or imprisonment is
come across with money may be guilty of distinct from the administrative penalty of
Robbery (Article 294, par. 5) or Bribery (Article suspension from the service
210). If the victim actually committed a crime,
and the policeman demanded money so he will
not be arrested, the crime is Bribery. But if no
crime has been committed and the policeman is
 voluntarily give information and testify in a case
Article 211-A of bribery or in a case involving a violation of the
QUALIFIED BRIBERY Anti-graft and Corrupt Practices Act.

 ELEMENTS: It provides immunity to the bribe-giver provided he

a. Public officer entrusted with law does two things:
enforcement (1) He voluntarily discloses the transaction
he had with the public officer
b. Refrains from constituting direct or indirect bribery, or
arresting/prosecuting offender for any other corrupt transaction;
crime punishable by reclusion
perpetua and/or death (2) He must willingly testify against the
(if lower penalty than stated above, public officer involved in the case to be
the crime is direct bribery) filed against the latter.

c. In consideration of any offer, Before the bribe-giver may be dropped from the
promise or gift information, he has to be charged first with the
* Note that the penalty is DEATH if the public receiver. Before trial, prosecutor may move for
officer is the one who asks or demands such dropping bribe-giver from information and be
present. granted immunity. But first, five conditions have
> He need not receive the gift or present to be met:
because a mere offer or promise is sufficient.
(1) Information must refer to consummated
bribery;
Article 212
CORRUPTION OF PUBLIC OFFICIALS (2) Information is necessary for the proper
conviction of the public officer involved;
 ELEMENTS:
a. That the offender makes offers or (3) That the information or testimony to be
promises or gives gifts or present given is not yet in the possession of the
to a public officer. government or known to the government;

b. That the offers or promises are (4) That the information can be corroborated
made or the gifts or presents in its material points;
given to a public officer, under
circumstances that will make the (5) That the informant has not been
public officer liable for direct convicted previously for any crime
bribery or indirect bribery involving moral turpitude.

 The offender is the giver of the gift or the * These conditions are analogous to the conditions
offeror of the promise. The act may or may under the State Witness Rule under Criminal
not be accomplished Procedure.

Presidential Decree No. 46 * The immunity granted the bribe-giver is limited

only to the illegal transaction where the informant
Presidential Decree No. 46 prohibits giving and gave voluntarily the testimony. If there were other
acceptance of gifts by a public officer or to a transactions where the informant also
public officer, even during anniversary, or when participated, he is not immune from prosecution.
there is an occasion like Christmas, New Year, or The immunity in one transaction does not extend
any gift-giving anniversary. The Presidential to other transactions.
Decree punishes both receiver and giver.
* The immunity attaches only if the information
The prohibition giving and receiving gifts given by given turns out to be true and correct. If the same
reason of official position, regardless of whether or is false, the public officer may even file criminal
not the same is for past or future favors. and civil actions against the informant for perjury
and the immunity under the decree will not
The giving of parties by reason of the promotion protect him.
of a public official is considered a crime even
though it may call for a celebration. The giving of
a party is not limited to the public officer only but Republic Act No. 7080 (Plunder)
also to any member of his family.
Plunder is a crime defined and penalized under
Presidential Decree No. 749 Republic Act No. 7080, which became effective in
1991. This crime somehow modified certain
> The decree grants immunity from prosecution to crimes in the Revised Penal Code insofar as the
a private person or public officer who shall overt acts by which a public officer amasses,
acquires, or accumulates ill-gotten wealth are While the crime appears to be malum prohibitum,
felonies under the Revised Penal Code like Republic Act No. 7080 provides that “in the
bribery (Articles 210, 211, 211-A), fraud against imposition of penalties, the degree of participation
the public treasury [Article 213], other frauds and the attendance of mitigating and aggravating
(Article 214), malversation (Article 217), when the circumstances shall be considered by the court”.
ill-gotten wealth amounts to a total value of
P50,000,000.00. The amount was reduced from
P75,000,000.00 by Republic Act No. 7659 and ANTI-GRAFT AND CORRUPT PRACTICES ACT
the penalty was changed from life imprisonment RA 3019
to reclusion perpetua to death.
 Persons Liable:
Short of the amount, plunder does not arise. Any
amount less than P50,000,000.00 is a violation of a. Any public officer who shall perform any of
the Revised Penal Code or the Anti-Graft and the following acts:
Corrupt Practices Act.
1. Persuading, inducing or influencing another
Under the law on plunder, the prescriptive period public officer to perform an act constituting a
is 20 years commencing from the time of the last violation of rules and regulations duly
overt act. promulgated by competent authority or an
offense in connection with the official duties of
Plunder is committed through a combination or the latter, or allowing himself to be persuaded,
series of overt acts: induced, or influenced to commit such
violation or offense.
(1) Through misappropriation, conversion,
misuse, or malversation of public funds 2. Directly or indirectly requesting or receiving
or raids on the public treasury; any gift, present, share, percentage, or benefit
for himself or for any other person in
(2) By receiving, directly or indirectly, any connection with any contract or transaction
commission, gift, share, percentage, between the government and any other party
kickbacks or any other form of pecuniary wherein the public officer in his official
benefit from any person and/or entity in capacity has to intervene under the law.
connection with any government contract
or project by reason of the office or 3. Directly, or indirectly requesting or receiving
position of the public officer; any gift, present, or other pecuniary or
material benefit, for himself or for another,
(3) By illegal or fraudulent conveyance or from any person for whom the public officer,
disposition of asset belonging to the in any manner of capacity, has secured or
national government or any of its obtained, or will secure or obtain, any
subdivisions, agencies or Government permit or license, in
instrumentalities or government-owned consideration for the held given or to be given.
or controlled corporations and their
subsidiaries; 4. Accepting or having any member of his family
accept employment in a private enterprise
(4) By obtaining, receiving, or accepting which has pending official business with him
directly or indirectly any shares of stock, during the pendency thereof or within one
equity or any other form of interest or year after its termination.
participation including the promise of
future employment in any business or 5. Causing any undue injury to any party,
undertaking; including the Government, or giving any
private party any unwarranted benefits,
(5) By establishing agricultural, industrial, advantage, or preference in the discharge of
or commercial monopolies or other his official, administrative or judicial function
combinations and/or implementations of through manifest partiality, evident bad faith
decrees and orders intended to benefit or gross inexcusable negligence. This
particular persons or special interests; or provision shall apply to officers and employees
of offices or government corporations charged
(6) By taking undue advantage of official with the grant of licenses or permits or other
position, authority, relationship, concessions.
connection or influence to unjustly
enrich himself or themselves at the 6. Neglecting or refusing, after due demand or
expense and to the damage and prejudice request, without sufficient justification, to act
of the Filipino people, and the Republic of within a reasonable time on any matter
the Philippines. pending before him for the purpose of
obtaining directly or indirectly, from any
person interested in the matter some
pecuniary or material benefit or advantage, or
 for the purpose of favoring his own interest of This prohibition shall not apply to:
giving undue advantage in favor of or 1. Any person who, prior to the assumption
discriminating against any other interested of office of any of the above officials to
party. whom he is related, has been already
dealing with the gov’t along the same line
7. Entering, on behalf of the Government, into of business;
any contract or transaction manifestly and
grossly disadvantageous to the same, whether 2. Any transaction, contract or application
or not the public officer profited or will profit already existing or pending at the time of
thereby. such assumption of public office;

8. Directly or indirectly having financial or 3. Any application filed by him, the approval
pecuniary interest in any business, contract of which is not discretionary on the part of
or transaction in connection with which he the official(s) concerned but depends upon
intervenes or take part in his official capacity, compliance with requisites provided by
or in which he is prohibited by the law, or rules or regulations issued
constitution or by any law from having any pursuant to law;
interest.
4. Any act lawfully performed an official
9. Directly or indirectly becoming interested, for capacity or in the exercise of a profession.
personal gain, or having a material interest in
any transaction or act requiring the approval e. Any member of congress, during the
of a board, panel, or group of which he is a term for which he has been elected, who
member, and which exercises discretion in shall acquire or receive any personal
such approval, even if he votes against the pecuniary interest in any specific business
same or does not participate in the action of enterprise which shall be directly and
the board, committee, panel or group. particularly favored or benefited by any law
or resolution authored by him previously
10. Knowingly approving or granting any approved or adopted by Congress during
license, permit, privilege, or benefit in favor of his term.
any person not qualified for or not legally
entitled to such license, permit, privilege, or f. Any public officer who shall fail to file
advantage, or of a mere representative or a true, detailed and sworn statement of
dummy of one who is not so qualified or assets and liabilities within 30 days after
entitled. assuming office and thereafter on or before
the 15th day of April following the close of
11. Divulging valuable information of a every calendar year, as well as upon the
confidential character, acquired by his office expiration of his term of office, or upon his
or by him on account of his official position to resignation or separation from office (Sec.
unauthorized persons, or releasing such 7).
information in advance of its authorized
release date. III. Prima Facie Evidence of and Dismissal
due to unexplained Wealth (Sec. 8)
b. Any person having family or close personal
relation with any public official who shall  If a public official has been found to have
capitalize or exploit or take advantage of such acquired during his incumbency, whether in
family or close personal relation by directly or his name or in the name of other persons, an
indirectly requesting or receiving any present, amount of property and/or money manifestly
gift, or material, or pecuniary advantage from out of proportion to his salary and to his
any person having some business, other lawful income.
transaction, application, request, or contact
with the government in which such public  Properties in the name of the spouse and
official has to intervene (Sec. 4) dependents of such public official may be
taken into consideration, when their
c. Any person who shall knowingly induce or acquisition through legitimate means cannot
cause any public official to commit any of the be satisfactorily shown.
offenses under (A). (Sec. 4)
 Bank deposits in the name of or manifestly
d. Spouse or any relative, by consanguinity or excessive expenditures incurred by the public
affinity, within the 3rd civil degree, of the official, his spouse or any of their dependents
president of the Philippines, the vice- including but not limited to activities in any
president, the president of the Senate, or club or association or any ostentatious
speaker of the house of Representatives, who display of wealth including frequent travel
shall intervene, directly or indirectly, in any abroad of a non-official character by any
business transaction, contract or application public official when such activities entail
with the gov’t (Sec. 5).
 expenses evidently out of proportion to or continue committing malfeasance in office
legitimate income. because the presumption is that unless the
accused is suspended, he may frustrate his
III. Competent court: All prosecutions under prosecution to commit further acts of
this Act shall be within the original jurisdiction of malfeasance or both (Bayot vs. Sandiganbayan,
the Sandiganbayan (Sec. 10). et al., supra).

* In case none of the principal accused are * “When the administrative case against the
occupying positions corresponding to salary officer or employee under preventive suspension
grade 27 or higher; PNP officers occupying the is not finally disposed of by the disciplining
rank of superintendent or higher of their authority within the period of ninety (90) days
equivalent, exclusive jurisdiction over the case after the date of suspension of the respondent
shall be vested in the proper Regional Trial Court, who is not a presidential appointee, the
Metropolitan Trial Court and Municipal Circuit respondent shall be automatically reinstated in
Trial Court as the case may be. The decision of the service: Provided, That when the delay in the
the court in these cases shall be appealable to disposition of the case is due to the fault,
the Sandiganbayan which exercises exclusive negligence or petition of the respondent, the
appellate jurisdiction over them. period of delay shall not be counted in computing
the period of suspension herein
IV. Prescription of offenses: all offenses provided.”(Segovia vs. Sandiganbayan)
punishable under this Act shall prescribe in 15
years (Sec. 11). ORTEGA NOTES:

V. Exceptions: Unsolicited gifts or presents of The mere act of a public officer demanding an
small or insignificant value offered or given as a amount from a taxpayer to whom he is to render
mere ordinary token of gratitude of friendship public service does not amount to bribery, but
according to local customs or usage, shall be will amount to a violation of the Anti-graft and
excepted from the provisions of this act (Sec. 14). Corrupt Practices Act.

* Once the case is filed with the Sandiganbayan, Illustration:

by express provision of the law, it becomes
incumbent upon the court to place under A court secretary received P500 .00 from a
preventive suspension the public officer who litigant to set a motion for an early hearing. This
stands accused before it. However, before the is direct bribery even if the act to be performed is
order of suspension is issued, it is necessary that within his official duty so long as he received a
a pre-suspension hearing be held by the court consideration therefor.
wherein the accused is afforded the opportunity
to challenge the validity of the information filed If the secretary persuaded the judge to make a
against him. Such right of the accused to favorable resolution, even if the judge did not do
challenge the validity of the information covers (a) so, this constitutes a violation of Anti-Graft and
the right to challenge the sufficiency of the Corrupt Practices Act, Sub-Section A.
recitals of the information vis-à-vis the essential
elements of the offense as defined by substantive Under the Anti-Graft and Corrupt Practices Act,
law; (b) the right to challenge the validity of the particularly Section 3, there are several acts
criminal proceedings leading to the filing of the defined as corrupt practices. Some of them are
information, i.e., that he has not been afforded mere repetitions of the act already penalized
the right of due preliminary investigation, or that under the Revised Penal Code, like prohibited
the acts for which he stands charged do not transactions under Article 215 and 216. In such
constitute a violation of the provisions of R.A. No. a case, the act or omission remains to be mala in
3019, which would warrant his mandatory se.
suspension from office under Section 13 of this
Act; and (c) the right to raise the issue that the But there are acts penalized under the Anti-Graft
information can be quashed under any of the and Corrupt Practices Act which are not
grounds provided in Section 2, Rule 117 of the penalized under the Revised Penal Code. Those
Rules of Court (People vs. Albano, 163 SCRA acts may be considered as mala prohibita.
511). Therefore, good faith is not a defense.

* Once the information is found to be sufficient in Illustration:

form and substance, the court must issue the “ CATCH ALL PROVISION”
suspension order as a matter of course and there Section 3 (e) of the Anti-Graft and Corrupt
are no ifs and buts about it (Bayot vs. Practices Act – causing undue injury to the
Sandiganbayan, et al., 128 SCRA 383). government or a private party by giving
unwarranted benefit to the party whom does not
* Preventive suspension is resorted to in order to deserve the same.
prevent the accused from using his office to
intimidate witnesses or frustrate his prosecution
In this case, good faith is not a defense because it information in court. It is the court which will
is in the nature of a malum prohibitum. order the suspension of the public officer and not
Criminal intent on the part of the offender is not the superior of that public officer. As long as the
required. It is enough that he performed the court has not ordered the suspension of the
prohibited act voluntarily. Even though the public officer involved, the superior of that public
prohibited act may have benefited the officer is not authorized to order the suspension
government. The crime is still committed simply because of the violation of the Anti-Graft
because the law is not after the effect of the act and Corrupt Practices Act. The court will not
as long as the act is prohibited. order the suspension of the public officer without
first passing upon the validity of the information
Section 3 (g) of the Anti-Graft and Corrupt filed in court. Without a hearing, the suspension
Practices Act – where a public officer entered into would be null and void for being violative of due
a contract for the government which is manifestly process.
disadvantageous to the government even if he did
not profit from the transaction, a violation of the Illustration:
Anti-Graft and Corrupt Practices Act is
committed. A public officer was assigned to direct traffic in a
very busy corner. While there, he caught a thief
If a public officer, with his office and a private in the act of lifting the wallet of a pedestrian. As
enterprise had a transaction and he allows a he could not leave his post, he summoned a
relative or member of his family to accept civilian to deliver the thief to the precinct. The
employment in that enterprise, good faith is not a civilian agreed so he left with the thief. When
defense because it is a malum prohibitum. It is they were beyond the view of the policeman, the
enough that that the act was performed. civilian allowed the thief to go home. What would
be the liability of the public officer?
Where the public officer is a member of the
board, panel or group who is to act on an The liability of the traffic policeman would be
application of a contract and the act involved one merely administrative. The civilian has no
of discretion, any public officer who is a member liability at all.
of that board, panel or group, even though he Firstly, the offender is not yet a prisoner so there
voted against the approval of the application, as is no accountability yet. The term “prisoner”
long as he has an interest in that business refers to one who is already booked and
enterprise whose application is pending before incarcerated no matter how short the time may
that board, panel or group, the public officer be.
concerned shall be liable for violation of the Anti-
Graft and Corrupt Practices Act. His only course The policeman could not be said as having
of action to avoid prosecution under the Anti- assisted the escape of the offender because as the
graft and Corrupt Practices Act is to sell his problem says, he is assigned to direct traffic in a
interest in the enterprise which has filed an busy corner street. So he cannot be considered
application before that board, panel or group as falling under the third 3rd paragraph of Article
where he is a member. Or otherwise, he should 19 that would constitute his as an accessory.
resign from his public position.
The same is true with the civilian because the
crime committed by the offender, which is
Illustration: snatching or a kind of robbery or theft as the
case may be, is not one of those crimes
Sen. Dominador Aytono had an interest in the mentioned under the third paragraph of Article
Iligan Steel Mills, which at that time was being 19 of the Revised Penal Code.
subject of an investigation by the Senate
Committee of which he was a chairman. He was Where the public officer is still incumbent, the
threatened with prosecution under Republic Act prosecution shall be with the Ombudsman.
No. 3019 so he was compelled to sell all his
interest in that steel mill; there is no defense. Where the respondent is separated from service
Because the law says so, even if he voted against and the period has not yet prescribed, the
it, he commits a violation thereof. information shall be filed in any prosecution’s
office in the city where the respondent resides.
These cases are filed with the Ombudsman and The prosecution shall file the case in the Regional
not with the regular prosecutor’s office. Trial Court unless the violation carries a penalty
Jurisdiction is exclusively with the higher than prision correccional, in which case
Sandiganbayan. The accused public officer must the Sandiganbayan has jurisdiction.
be suspended when the case is already filed with
the Sandiganbayan. The fact that the government benefited out of the
prohibited act is no defense at all, the violation
Under the Anti-Graft and Corrupt Practices Act, being mala prohibita.
the public officer who is accused should not be
automatically suspended upon the filing of the
Section 3 (f) of the Anti-Graft and Corrupt b. That he should have taken advantage
Practices Act – where the public officer neglects of his office, that is, he intervened in
or refuses to act on a matter pending before him the transaction in his official capacity.
for the purpose of obtaining any pecuniary or
material benefit or advantage in favor of or c. That he entered into an agreement
discriminating against another interested party. with any interested party or speculator
or made use of any other scheme with
The law itself additionally requires that the regard to (a) furnishing supplies (b) the
accused’s dereliction, besides being without making of contracts, or (c) the
justification, must be for the purpose of obtaining adjustment or settlement of account
from any person interested in the matter some relating to a public property or funds.
pecuniary or material benefit or for the purpose
of favoring any interested party, or discriminating d. That the accused had intent to defraud
against another interested party. This element is the government.
indispensable.
 Notes:
In other words, the neglect or refusal to act must > The public officer must act in his official
motivated by gain or benefit, or purposely to favor capacity
the other interested party as held in Coronado v.
SB, decided on August 18, 1993. > The felony is consummated by merely entering
into an agreement with any interested party or
Republic Act No. 1379 (Forfeiture of Ill-gotten speculator or by merely making use of any
Wealth) scheme to defraud the Government

Correlate with RA 1379 -- properly under * The essence of this crime is making the
Remedial Law. This provides the procedure for government pay for something not received or
forfeiture of the ill-gotten wealth in violation of making it pay more than what is due. It is also
the Anti-Graft and Corrupt Practices Act. The committed by refunding more than the amount
proceedings are civil and not criminal in nature. which should properly be refunded. This occurs
usually in cases where a public officer whose
Any taxpayer having knowledge that a public official duty is to procure supplies for the
officer has amassed wealth out of proportion to government or enter into contract for government
this legitimate income may file a complaint with transactions, connives with the said supplier
the prosecutor’s office of the place where the with the intention to defraud the government.
public officer resides or holds office. The Also when certain supplies for the government
prosecutor conducts a preliminary investigation are purchased for the high price but its quantity
just like in a criminal case and he will forward or quality is low.
his findings to the office of the Solicitor General.
The Solicitor General will determine whether * Not all frauds will constitute this crime. There
there is reasonable ground to believe that the must be no fixed allocation or amount on the
respondent has accumulated an unexplained matter acted upon by the public officer.
wealth.
* The allocation or outlay was made the basis of
If the Solicitor General finds probable cause, he fraudulent quotations made by the public officer
would file a petition requesting the court to issue involved.
a writ commanding the respondent to show cause
why the ill-gotten wealth described in the petition For example, there was a need to put some
should not be forfeited in favor of the additional lighting along a street and no one
government. This is covered by the Rules on Civil knows how much it will cost. An officer was
Procedure. The respondent is given 15 days to asked to canvass the cost but he connived with
answer the petition. Thereafter trial would the seller of light bulbs, pricing each light bulb at
proceed. Judgment is rendered and appeal is just P550.00 instead of the actual price of P500.00.
like in a civil case. Remember that this is not a This is a case of fraud against public treasury.
criminal proceeding. The basic difference is that
the preliminary investigation is conducted by the If there is a fixed outlay of P20,000.00 for the
prosecutor. lighting apparatus needed and the public officer
connived with the seller so that although
FRAUDS AND ILLEGAL EXACTIONS AND allocation was made a lesser number was asked
TRANSACTIONS to be delivered, or of an inferior quality, or
secondhand. In this case there is no fraud
Article 213 against the public treasury because there is a
FRAUDS AGAINST PUBLIC TREASURY fixed allocation. The fraud is in the
 ELEMENTS: (par. 1) implementation of procurement. That would
a. That the offender be a public officer. constitute the crime of “other fraud” in Article 214,
which is in the nature of swindling or estafa.
* Be sure to determine whether fraud is against of gift or gratification, the crime is indirect
public treasury or one under Article 214. bribery

ILLEGAL EXACTIONS (par 2) * When there is deceit in demanding larger fees,

the crime committed is estafa
 ELEMENTS:
a. The offender is a public officer * May be complexed with malversation
entrusted with the collection of taxes,
licenses, fees and other imposts. * Note that this is often committed with
malversation or estafa because when a public
b. He is guilty of any of the following officer shall demand an amount different from
acts or omissions: what the law provides, it can be expected that
such public officer will not turn over his
1. demanding, directly or indirectly the collection to the government.
payment of sums different from or larger
than those authorized by law, or Illustrations:

2. failing voluntarily to issue a receipt, as (1) A taxpayer goes to the local municipal
provided by law, for any sum of money treasurer to pay real estate taxes on his land.
collected by him officially, or Actually, what is due the government is
P400.00 only but the municipal treasurer
3. Collecting or receiving, directly or demanded P500.00. By that demand alone,
indirectly, by way of payment or the crime of illegal exaction is already
otherwise, things or objects of a nature committed even though the taxpayer does not
different from that provided by law. pay the P500.00.

 Notes: (2) Suppose the taxpayer came across with

P500.00. But the municipal treasurer, thinking
* This can only be committed principally by a that he would abstract the P100.00, issued a
public officer whose official duty is to collect receipt for only P400.00. The taxpayer would
taxes, license fees, import duties and other dues naturally ask the municipal treasurer why the
payable to the government. receipt was only for P400.00. The treasurer
answered that the P100.00 is supposed to be
* Not any public officer can commit this crime. for documentary stamps. The taxpayer left.
Otherwise, it is estafa. Fixers cannot commit this
crime unless he conspires with the public officer He has a receipt for P400.00. The municipal
authorized to make the collection. treasurer turned over to the government coffers
P400.00 because that is due the government
* The essence of the crime is not misappropriation and pocketed the P100.00.
of any of the amounts but the improper making The mere fact that there was a demand for an
of the collection which would prejudice the amount different from what is due the
accounting of collected amounts by the government, the public officer already
government. committed the crime of illegal exaction.

* Mere demand of a larger or different amount is On the P100.00 which the public officer pocketed,
sufficient to consummate the crime. The essence will it be malversation or estafa?
is the improper collection (damage to gov’t is not
required) In the example given, the public officer did not
include in the official receipt the P100.00 and,
On the first form of illegal exaction therefore, it did not become part of the public
funds. It remained to be private. It is the
In this form, mere demand will consummate the taxpayer who has been defrauded of his
crime, even if the taxpayer shall refuse to come P100.00 because he can never claim a refund
across with the amount being demanded. That from the government for excess payment since
will not affect the consummation of the crime. the receipt issued to him was only P400.00
which is due the government. As far as the
> In the demand, it is not necessary that the P100.00 is concerned, the crime committed is
amount being demanded is bigger than what is estafa.
payable to the government. The amount being
demanded maybe less than the amount due the (3) A taxpayer pays his taxes. What is due the
government. government is P400.00 and the public officer
issues a receipt for P500.00 upon payment of
* If sums are received without demanding the the taxpayer of said amount demanded by the
same, a felony under this article is not public officer involved. But he altered the
committed. However, if the sum is given as a sort duplicate to reflect only P400.00 and he
extracted the difference of P100.00.
 In this case, the entire P500.00 was covered If it did not give rise to the crime of illegal
by an official receipt. That act of covering the exaction, the funds collected may not have
whole amount received from the taxpayer in become part of the public funds. If it had not
an official receipt will have the characteristics become part of the public funds, or had not
of becoming a part of the public funds. The become impressed with being part of the public
crimes committed, therefore, are the following: funds, it cannot be the subject of malversation.
It will give rise to estafa or theft as the case may
(a) Illegal exaction – for collecting more than be.
he is authorized to collect. The mere act of
demanding is enough to constitute this (3) The Municipal Treasurer demanded P500.00
crime. when only P400.00 was due. He issued the
receipt at P400.00 and explained to taxpayer
(b) Falsification – because there was an that the P100 was for documentary stamps.
alteration of official document which is the The Municipal Treasurer placed the entire
duplicate of the official receipt to show an P500.00 in the vault of the office. When he
amount less than the actual amount needed money, he took the P100.00 and spent
collected. it.

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

However, illegal exaction may be complexed with The act of receiving payment due the government
malversation because illegal exaction is a without issuing a receipt will give rise to illegal
necessary means to be able to collect the exaction even though a provisional receipt has
P100.00 excess which was malversed. been issued. What the law requires is a receipt in
the form prescribed by law, which means official
In this crime, pay attention to whether the receipt.
offender is the one charged with the collection
of the tax, license or impost subject of the Illustration:
misappropriation. If he is not the one
authorized by disposition to do the collection, the If a government cashier or officer to whom
crime of illegal exaction is not committed. payment is made issued a receipt in his own
private form, which he calls provisional, even
though he has no intention of misappropriating Article 215
the amount received by him, the mere fact that PROHIBITED TRANSACTIONS
he issued a receipt not in the form prescribed by
law, the crime of illegal exaction is committed.  ELEMENTS:
There must be voluntary failure to issue the a. That the offender is an appointive public
Official Receipt. officer.

On the third form of illegal exaction b. That he becomes interested, directly or

indirectly, in any transaction of
Under the rules and regulations of the exchange or speculation.
government, payment of checks not belonging to
the taxpayer, but that of checks of other persons, c. That the transaction takes place within
should not be accepted to settle the obligation of the territory subject to his jurisdiction.
that person.
d. That he becomes interested in the
Illustration: transaction during his incumbency.

A taxpayer pays his obligation with a check not  Notes:

his own but pertaining to another. Because of Examples of transactions of exchange or
that, the check bounced later on. speculation are: buying and selling stocks,
commodities, land etc wherein one hopes to take
The crime committed is illegal exaction because advantage of an expected rise or fall in price
the payment by check is not allowed if the check
does not pertain to the taxpayer himself, unless * Purchasing of stocks or shares in a company is
the check is a manager’s check or a certified simple investment and not a violation of the
check, amended already as of 1990. (See the article. However, regularly buying securities for
case of Roman Catholic.) resale is speculation

* Under Article 213, if any of these acts penalized Article 216

as illegal exaction is committed by those POSSESSION OF PROHIBITED INTERESTS BY
employed in the Bureau of Customs or Bureau of A PUBLIC OFFICER
Internal Revenue, the law that will apply to them
will be the Revised Administrative Code or the  Who are liable:
Tariff and Customs Code or National Revenue a. Public officer – in any contract or business
Code. in which it is his official duty to intervene.

* This crime does not require damage to the b. Experts, arbitrators and private
government. accountants – in any contract or
transaction connected with the estate or
Officers and employees of the BIR or Customs property in the approval, distribution or
are not covered by the article. adjudication of which they had acted.
The NIRC or Administrative Code is
the applicable law c. Guardians and executors – with respect to
property belonging to their wards or the
>These officers are authorized to make estate.
impositions and to enter into compromises.  Notes:
Because of this discretion, their demanding or > Actual fraud is not necessary.
collecting different from what is necessary is legal
* Act is punished because of the possibility that
Article 214 fraud may be committed or that the officer may
OTHER FRAUDS place his own interest above that of the
Government or party which he represents
 ELEMENTS:
a. That the offender is a public officer. * The mere violation of the prohibition is already
punished even if no actual fraud occurs because
b. That he takes advantage of his official of the possibility that fraud may be committed or
position. that the officer may place his own interest above
that of the government or party he represents. (U.
c. That he commits any of the frauds or S. vs. Udarbe, 28 Phil. 383)
deceits enumerated in art. 315 to 318.
(estafa; swindling) Section 14, Article VI of the Constitution

 Note: RTC has jurisdiction over the offense No Senator or Member of the House of
because the principal penalty is Representatives may personally appear as
disqualification counsel before any court of justice or before the
Electoral Tribunals, or quasi-judicial and other c. That those funds or property were public
administrative bodies. Neither shall he, directly funds or property (even if private funds if
or indirectly, be interested financially in any attached, seized, deposited or commingled
contract with, or in any franchise or special with public funds)
privilege granted by the Government or any
subdivision, agency or instrumentality thereof, d. That he:
including any government-owned or controlled 1. Appropriated the funds or property
corporation or its subsidiary, during his term of
office. He shall not intervene in any matter 2. Took or misappropriated them
before any office of the government for his
pecuniary benefit or where he may be called upon 3. Consented or, through abandonment or
to act on account of his office. negligence, permitted any other person to
take such public funds or property. (it is not
Section 13, Article VII of the Constitution necessary that the offender profited
thereby. His being remiss in the duty of
The President, Vice-President, the safekeeping public funds violates the trust
Members of the Cabinet and their deputies or reposed)
assistant shall not, unless otherwise provided in
this Constitution, hold any other office or Concept of Malversation
employment during their tenure. They shall not,
during said tenure, directly or indirectly, practice It consists in the misappropriation or conversion
any other profession, participate in any business, of public funds or property to one’s personal use
or be financially interested in any contract with, or knowingly, or through abandonment or
or in any franchise, or special privilege granted negligence allowing other to use or appropriate
by the Government or any subdivision, agency or the same. The offender is made liable because of
instrumentality thereof, including government- the nature of his duties to take care of the funds
owned or controlled corporations or their or property entrusted to him with the diligence of
subsidiaries. They shall strictly avoid conflict of a good father of a family. He is accountable by
interest in the conduct of their office. virtue of the nature of his office to account for
funds or properties that come to his possession.
If he is not accountable for the funds or properties
Section 2, Article IX-A of the Constitution and he misappropriates the same, the crime will
not be malversation but estafa under Article 315.
No member of a Constitutional
Commission shall, during his tenure, hold any  Malversation is otherwise called
office or employment. Neither shall he engage in embezzlement
the practice of any profession or in the active
management or control of any business which in * This crime is predicated on the relationship of
any way may be affected by the functions of his the offender to the property or funds involved.
office, nor shall he be financially interested, The offender must be accountable for the
directly or indirectly, in any contract with, or in property misappropriated. If the fund or
any franchise or privilege granted by the property, though public in character is the
government, or any of its subdivisions, agencies, responsibility of another officer, malversation is
or instrumentalities, including government- not committed unless there is conspiracy.
owned or controlled corporations or their
subsidiaries. * In determining whether the offender is liable for
malversation, it is the nature of the duties of the
public officer that controls. While the name of the
MALVERSATION OF PUBLIC FUNDS OR office is important, what is controlling is whether
PROPERTY in performing his duties as a public officer, he
has to account or is required by the nature of the
Article 217 performance of a duty, to render an account on
MALVERSATION OF PUBLIC FUNDS OR the money or property that came into his
PROPERTY possession.

 ELEMENTS COMMON TO ALL ACTS * It is not necessary that the offender profited
MALVERSATION OF PUBLIC FUNDS OR because somebody else may have
PROPERTY : misappropriated the funds in question for as long
a. That the offender be a public officer (or as the accountable officer was remiss in his duty
private person if entrusted with public of safekeeping public funds or property. He is
funds or connived with public officers) liable for malversation if such funds were lost or
otherwise misappropriated by another.
b. That he had the custody or control of
funds or property (if not accountable for the  It can be committed either with malice or
funds, theft or qualified theft) through negligence or imprudence
* There is no crime of malversation through  When a public officer has official custody or
negligence. The crime is malversation, plain and the duty to collect or receive funds due the
simple, whether committed through dolo or government, or the obligation to account for
culpa. There is no crime of malversation under them, his misappropriation of the same
Article 365 – on criminal negligence – because in constitutes malversation
malversation under Article 217, the same
penalty is imposed whether the malversation * Note that the moment any money is
results from negligence or was the product of commingled with the public fund even if not due
deliberate act. the government, it becomes impressed with the
characteristic of being part of public funds. Once
 In determining whether the offender is a they are commingled, you do not know anymore
public officer, what is controlling is the which belong to the government and which
nature of his office and not the designation belong to the private persons. So that a public
vault or safe should not be used to hold any fund
* The offender, to commit malversation, must be other that what is due to the government.
accountable for the funds or property
misappropriated by him. If he is not the one  In malversation thru negligence, the
accountable but somebody else, the crime negligence of the accountable public officer
committed is theft. It will be qualified theft if must be positively and clearly shown to be
there is abuse of confidence. inexcusable, approximating fraud or malice

* Accountable officer does not refer only to > Under jurisprudence, when the public officer
cashier, disbursing officers or property leaves his post without locking his drawer, there
custodian. Any public officer having custody of is negligence. Thus, he is liable for the loss.
public funds or property for which he is
accountable can commit the crime of malversation  The measure of negligence to be observed is
if he would misappropriate such fund or property the standard of care commensurate with the
or allow others to do so. occasion

 The funds or property must be received in an  When malversation is not committed through
official capacity. Otherwise, the crime negligence, lack of criminal intent or good
committed is estafa faith is a defense

* When private property is attached or seized by  The failure of a public officer to have any
public authority and the public officer accountable duly forthcoming public funds or property
therefor misappropriates the same, malversation upon demand, by any authorized officer,
is committed also. shall be prima facie evidence that he has put
such missing funds or property to personal
Illustration: use. However, if at the very moment when
If a sheriff levied the property of the defendants the shortage is discovered, the accountable
and absconded with it, he is not liable of qualified officer is notified, and he immediately pays
theft but of malversation even though the the amount from his pocket, the presumption
property belonged to a private person. The does not arise
seizure of the property or fund impressed it with * An accountable public officer may be convicted
the character of being part of the public funds it even if there is no direct evidence of
being in custodia legis. For as long as the public misappropriation and the only evidence is the
officer is the one accountable for the fund or shortage in his account which he has not been
property that was misappropriated, he can be able to explain satisfactorily. (Palma Gil vs.
liable for the crime of malversation. Absent such People)
relation, the crime could be theft, simple or
qualified. * If a public officer reports the loss of money
before a cash examination is conducted and the
Estafa Malversation cause of the loss as reported has a distinct ring of
It is usually committed Committed by truth to it, the legal presumption of prima facie
by a private individual accountable public evidence of guilt will not apply. In order to
officers support conviction, the prosecution must prove
Funds or property of The object is public the actual misappropriation of the missing funds.
misappropriation are fund or property. (Salvacion vs. The Honorable Sandiganbayan,
privately owned. G. R. No. 68233, July 11, 1986)
The offender Personal appropriation
appropriates personally is not indispensable * To rebut the presumption of guilt prima facie
the funds or property. because allowing under Article 217, the accused must raise the
others to commit the issue of accuracy, correctness and regularity in
misappropriation is the conduct of audit. If asked for a second audit
also malversation. before the filing of the information against him
and the same was denied, and during the trial,
some disbursement vouchers were introduced (2) When he has become an accomplice or
which were not considered in the first audit, the accessory to a public officer who commits
denial of the request for a second audit is fatal to malversation;
the cause of the prosecution because in the
meantime, the evidence introduced does not (3) When the private person is made the
establish a fact beyond reasonable doubt. Had custodian in whatever capacity of public
the re-audit requested by the accused been funds or property, whether belonging to
accorded due course, the remaining balance national or local government, and he
could have been satisfactorily accounted for. misappropriates the same;
(Mahinay vs. The Sandiganbayan. G. R. No.
61442, May 9, 1989) (4) When he is constituted as the depositary
or administrator of funds or property
 Returning the embezzled funds is not seized or attached by public authority
exempting, it is only mitigating even though said funds or property belong
to a private individual.
* Payment of the amount misappropriated or
restitution of property misappropriated does not * Technical malversation is not included in the
erase criminal liability but only civil liability. crime of malversation. In malversation, the
offender misappropriates public funds or
 There is also no malversation when the property for his own personal use, or allows any
accountable officer is obliged to go out of his other person to take such funds or property for
office and borrow the amount corresponding the latter’s own personal use. In technical
to the shortage and later, the missing malversation, the public officer applies the public
amount is found in an unaccustomed place funds or property under his administration to
another public use different from that for which
 A person whose negligence made possible the the public fund was appropriated by law or
commission of malversation by another can ordinance. Recourse: File the proper
be held liable as a principal by indispensable information.
cooperation
Article 218
* It is not necessary that the accountable public FAILURE OF ACCOUNTABLE OFFICER TO
officer should actually misappropriate the fund or RENDER ACCOUNTS
property involved. It is enough that he has
violated the trust reposed on him in connection  ELEMENTS:
with the property. a. That the offender is a public officer,
whether in the service or separated
 Demand as well as damage to the therefrom.
government are not necessary elements
b. That he must be an accountable officer
* Note that damage on the part of the government for public funds property.
is not considered an essential element. It is
enough that the proprietary rights of the c. That he is required by law or
government over the funds have been disturbed regulation to render accounts to the
through breach of trust. commission on audit, or to a provincial
auditor.
* The grant of loans through the vale system is a
clear case of an accountable officer consenting to d. That he fails to do so for a period of
the improper or unauthorized use of public funds two months after such accounts should
by other persons, which is punishable by law. To be rendered.
tolerate such a practice is to give a license to
every disbursing officer to conduct a lending The public officers who are bound to render
operation with the use of public funds. There is accounts are the following:
no law or regulation allowing accountable officers 1. cashiers
to extend loans to anyone against the “vales” or 2. storekeepers
chits given in exchange by the borrowers. 3. warehousemen and
(Meneses vs. Sandiganbayan) 4. those who by the nature of their position
become custodian or public funds or
A private person may also commit property.
malversation under the following
situations:  Note: Demand and misappropriation are not
necessary
(1) Conspiracy with a public officer in
committing malversation; * It is sufficient that there is a law or regulation
requiring him to render an account. It is the
failure to follow the requirement of the law that is
made punishable. It is not necessary that the
offender prevent the situation of the crime being already appropriated by law, the public officer
committed because of the failure of the applied it to another purpose.
accountable officer to render an account.
 To distinguish this article with Art 217, just
remember that in illegal use of public funds
Article 219 or property, the offender does not derive any
FAILURE OF A RESPONSIBLE PUBLIC personal gain, the funds are merely devoted
OFFICER TO RENDER ACCOUNTS BEFORE to some other public use
LEAVING THE COUNTRY
 Absence of damage is only a mitigating
 ELEMENTS: circumstance
a. That the offender is a public officer.
* Since damage is not an element of malversation,
b. That he must be an accountable officer even though the application made proved to be
for public funds or property. more beneficial to public interest than the
original purpose for which the amount or
c. That he must have unlawfully left (or be property was appropriated by law, the public
on the point of leaving) the Philippines officer involved is still liable for technical
without securing from the Commission on malversation.
Audit a certificate showing that his
accounts have been finally settled. * If public funds were not yet appropriated by law
or ordinance, and this was applied to a public
Who can commit this crime? purpose by the custodian thereof, the crime is
A responsible public officer, not necessarily an plain and simple malversation, not technical
accountable one, who leaves the country without malversation. If the funds had been appropriated
first securing clearance from the Commission on for a particular public purpose, but the same was
Audit. applied to private purpose, the crime committed is
simple malversation only.
 Note: The act of leaving the Philippines must
be unauthorized or not permitted by law Illustration:

* Mere leaving without securing clearance The office lacked bond papers. What the
constitutes violation of the Revised Penal Code. It government cashier did was to send the janitor,
is not necessary that they really misappropriated get some money from his collection, told the
public funds. janitor to buy bond paper so that the office will
have something to use. The amount involved
Article 220 maybe immaterial but the cashier commits
ILLEGAL USE OF PUBLIC FUNDS OR malversation pure and simple.
PROPERTY (Technical Malversation)
* This crime can also be committed by a private
 ELEMENTS: person.
a. That the offender is a public officer.
Illustration:
b. That there is public fund or property
under his administration. A certain road is to be cemented. Bags of cement
were already being unloaded at the side. But
c. That such public fund or property has then, rain began to fall so the supervisor of the
been appropriated by law or ordinance road building went to a certain house with a
(without this, it is simple malversation even garage, asked the owner if he could possibly
if applied to other public purpose). deposit the bags of cement in his garage to
prevent the same from being wet. The owner of
d. That he applies the same to a public the house, Olive, agreed. So the bags of cement
use other than for which such fund or were transferred to the garage of the private
property has been appropriated by law person. After the public officer had left, and the
or ordinance. workers had left because it is not possible to do
* The term TECHNICAL MALVERSATION is used the cementing, the owner of the garage started
because in this crime, the fund or property using some of the cement in paving his own
involved is already appropriated or earmarked for garage. The crime of technical malversation is
a certain public purpose. also committed.

* The offender is entrusted with such fund or * Note that when a private person is constituted as
property only to administer or apply the same to the custodian in whatever capacity, of public
the public purpose for which it was appropriated funds or property, and he misappropriates the
by law or ordinance. Instead of applying it to the same, the crime of malversation is also committed.
public purpose to which the fund or property was See Article 222.
Illustration:
* Private individuals may also be liable for
The payroll money for a government malversation if they act as conspirators in the
infrastructure project on the way to the site of commission of the crime.
the project, the officers bringing the money were
ambushed. They were all wounded. One of INFIDELITY OF PUBLIC OFFICERS
them, however, was able to get away from the
scene of the ambush until he reached a certain Article 223
house. He told the occupant of the house to CONNIVING WITH OR CONSENTING TO
safeguard the amount because it is the payroll EVASION
money of the government laborers of a particular
project. The occupant of the house accepted the  ELEMENTS:
money for his own use. The crime is not theft a. That the offender is a public officer (on
but malversation as long as he knew that what duty).
was entrusted in his custody is public fund or
property. b. That he is charged with the conveyance
or custody of a prisoner, either
Article 221 detention prisoner or prisoner by final
FAILURE TO MAKE DELIVERY OF PUBLIC judgment.
FUNDS OR PROPERTY
c. That such prisoner escaped from his
ELEMENTS: custody
a. Offender has gov’t funds or property in
his possession d. That he was in connivance with the
prisoner in the latter’s escape
b. He is under obligation to either:
1. make payment from such funds  DETENTION PRISONER: refers to a person
in legal custody, arrested for and charged
2. to deliver property in his custody or with some crime or public offense
administration when ordered by
competent authority  The release of a detention prisoner who could
not be delivered to judicial authorities within
c. He maliciously fails or refuses to do so the time fixed by law is not infidelity in the
custody of a prisoner. Neither is mere
 Note: Penalty is based on value of leniency or laxity in the performance of duty
funds/property to be delivered constitutive of infidelity

Article 222  There is real and actual evasion of service of

PERSONS WHO MAY BE HELD LIABLE UNDER sentence when the custodian permits the
ARTS 217 TO 221 prisoner to obtain a relaxation of his
imprisonment
a. Private individual who, in any capacity,
have charge of any national, provincial * A municipal mayor who utilized the prisoner’s
or municipal funds, revenue, or services for domestic chores in his house,
property including using him as a cook is liable for
faithlessness in the custody of prisoner (Art. 223)
b. Administrator or depositary of funds or even though the convict may not have fled, in as
property that has been attached, seized much as the prisoner’s leaving the prison was
or deposited by public authority, even if effected through him. (People vs. Evangelista,
owned by a private individual C.A. 38 O.G. 158).

 Sheriffs and receivers fall under the term

“administrator” Article 224
EVASION THROUGH NEGLIGENCE
 A judicial administrator in charge of settling
the estate of the deceased is not covered by  ELEMENTS:
the article a. That the offender is a public officer.

* Here, the funds or property belong to private b. That he is charged with the conveyance
individuals, but they are considered public funds or custody of a prisoner, either
or property if they come to the possession of the detention prisoner or prisoner by final
public officer because of 1) a writ of attachment; judgment.
or 2) if they are seized by virtue of a search
warrant. Or 3) if they are ordered deposited c. That such prisoner escapes through his
pending determination of ownership in the negligence.
administrative or judicial proceedings.
 d. Penalty based on nature of agreed to have the custody or charge of the
imprisonment prisoner or person under arrest.

 The article punishes a definite laxity which ORTEGA NOTES:

amounts to deliberate non-performance of a
duty The crime is infidelity in the custody of prisoners
if the offender involved is the custodian of the
* Not every error is negligence under this article. prisoner.
To be liable, the negligence must be notorious and If the offender who aided or consented to the
apparent. The laxity must be definite and must prisoner’s escaping from confinement, whether
seriously suggest a deliberate non-performance of the prisoner is a convict or a detention prisoner,
a duty. is not the custodian, the crime is delivering
prisoners from jail under Article156.
* The negligence which is punishable however is
not such definite laxity at all but that which The crime of infidelity in the custody of prisoners
amounts to deliberate non-performance of the can be committed only by the custodian of the
jailer or the guard. So that if a policemen on prisoner.
guard duty unlocked the door of the jail to let a
detention prisoner go out so he can clean the If the jail guard who allowed the prisoner to
premises, but on the latter’s third trip to a nearby escape is already off-duty at that time and he is
faucet, he walked behind the police headquarters no longer the custodian of the prisoner, the crime
climbed over the wall and escape, the crime is committed by him is delivering prisoners from
not committed. (People vs. Solis, C.A. 43 O.G. jail.
580).
Note that you do not apply here the principle of
 The fact that the public officer recaptured the conspiracy that the act of one is the act of all.
prisoner who had escaped from his custody The party who is not the custodian who
does not afford complete exculpation conspired with the custodian in allowing the
prisoner to escape does not commit infidelity in
 The liability of an escaping prisoner: the custody of the prisoner. He commits the
a. if he is a prisoner by final judgment, crime of delivering prisoners from jail.
he is liable for evasion of service (art
157)
b. if he is a detention prisoner, he does Question & Answer
not incur criminal liability (unless
cooperating with the offender).
If a private person approached the
custodian of the prisoner and for a certain
Article 225 consideration, told the custodian to leave the door
ESCAPE OF PRISONERS UNDER THE of the cell unlocked for the prisoner to escape.
CUSTODY OF A PERSON NOT A PUBLIC What crime had been committed?
OFFICER
It is not infidelity in the custody of
 ELEMENTS: prisoners because as far as the private person is
a. That the offender is a private person concerned, this crime is delivering prisoners from
(note: must be on duty) jail. The infidelity is only committed by the
custodian.
b. That the conveyance or custody of a
prisoner or person under arrest is This crime can be committed also by a private
confined to him. person if the custody of the prisoner has been
confided to a private person.
c. That the prisoner or person under
arrest escapes. Illustration:

d. That the offender consents to the A policeman escorted a prisoner to court. After the
escape of the prisoner or person under court hearing, this policeman was shot at with a
arrest, or that the escape takes place view to liberate the prisoner from his custody. The
through his negligence policeman fought the attacker but he was fatally
wounded. When he could no longer control the
 Note: This article is not applicable if a private prisoner, he went to a nearby house, talked to the
person made the arrest and he consented to head of the family of that house and asked him if
the escape of the person he arrested he could give the custody of the prisoner to him.
He said yes. After the prisoner was handcuffed in
* The offender under this article is not the one his hands, the policeman expired. Thereafter, the
who arrested the escaping prisoner but one who head of the family of that private house asked the
prisoner if he could afford to give something so
that he would allow him to go. The prisoner said, b. That he abstracts, destroys or conceals a
“Yes, if you would allow me to leave, you can document or papers.
come with me and I will give the money to you.”
This private persons went with the prisoner and c. That the said document or paper should
when the money was given, he allowed him to go. have been entrusted to such public officer
What crime/s had been committed? by reason of his office.

Under Article 225, the crime can be committed by d. That damage, whether serious or not, to
a private person to whom the custody of a a third party or to the public interest
prisoner has been confided. should have been caused.
* The act of obstruction, destruction or
Where such private person, while performing a concealment must cause damage to a third party
private function by virtue of a provision of law, or to the public interest. Damage to a third party
shall accept any consideration or gift for the non- is usually pecuniary; but damage to public
performance of a duty confided to him, Bribery is interest may consist in mere alarm to the public
also committed. So the crime committed by him or the alienation of its confidence on any branch
is infidelity in the custody of prisoners and of the government service.
bribery.
 The document must be complete and one by
If the crime is delivering prisoners from jail, which a right could be established or an
bribery is just a means, under Article 156, that obligation could be extinguished
would call for the imposition of a heavier penalty,
but not a separate charge of bribery under Article  Books, periodicals, pamphlets etc are not
156. documents

But under Article 225 in infidelity, what is  “Papers” would include checks, promissory
basically punished is the breach of trust because notes and paper money
the offender is the custodian. For that, the crime
is infidelity. If he violates the trust because of > Removal of a document presupposes unlawful
some consideration, bribery is also committed. appropriation of the official document.

A higher degree of vigilance is required. Failure > Destruction means to render the document
to do so will render the custodian liable. The useless. Its nature to prove the existence of a fact
prevailing ruling is against laxity in the handling is lost such that it cannot anymore prove the
of prisoners. probability or improbability of a fact in issue.

Illustration: > Concealment on the other hand means to

make it appear that the document is not
A prison guard accompanied the prisoner in the available.
toilet. While answering the call of nature, police
officer waiting there, until the prisoner escaped.  A post office official who retained the mail
Police officer was accused of infidelity. without forwarding the letters to their
destination is guilty of infidelity in the
There is no criminal liability because it does not custody of papers
constitute negligence. Negligence contemplated
here refers to deliberate abandonment of duty.  Removal of a document or paper must be for
Note, however, that according to a recent an illicit purpose.
Supreme Court ruling, failure to accompany lady
prisoner in the comfort room is a case of * If the removal of the document is for a lawful
negligence and therefore the custodian is liable purpose and that is, to secure the same from
for infidelity in the custody of prisoner. imminent danger or loss, there is no crime
committed under the law, (Kataniag vs. People,
Prison guard should not go to any other place not 74 Phil. 45).
officially called for. This is a case of infidelity in
the custody of prisoner through negligence under  There is illicit purpose when the
Article 224. intention of the offender is to:
a. tamper with it
INFIDELITY IN CUSTODY OF DOCUMENTS b. to profit by it
c. to commit any act constituting a
Article 226 breech of trust in the official thereof
REMOVAL, CONCEALMENT, OR
DESTRUCTION OF DOCUMENTS * The act of removal, destruction or concealment
should be coupled with criminal intent or malice
 ELEMENTS: (Manzanaris vs. Sandiganbayan, et al., G.R.
a. That the offender be a public officer. No. 64750, Jan. 30, 1984).
 Removal is consummated upon removal or Article 227
secreting away of the document from its OFFICER BREAKING SEAL
usual place. It is immaterial whether or not
the illicit purpose of the offender has been  ELEMENTS :
accomplished a. That the offender is a public officer.

* Removal of public records by the custodian does b. That he is charged with the custody of
not require that the record be brought out of the papers or property.
premises where it is kept. It is enough that the
record be removed from the place where it should c. That these papers or property are sealed
be and transferred to another place where it is by proper authority.
not supposed to be kept. If damage is caused to
the public service, the public officer is criminally d. That he breaks the seals or permits them
liable for infidelity in the custody of official to be broken.
documents.
 It is the breaking of the seals and not the
 Infidelity in the custody of documents opening of a closed envelope which is
through destruction or concealment does not punished
require proof of an illicit purpose
 Damage or intent to cause damage is not
 Where in case for bribery or corruption, the necessary; damage is presumed
monetary considerations was marked as
exhibits, such considerations acquires the * If the official document is sealed or otherwise
nature of a document such that if the same placed in an official envelope, the element of
would be spent by the custodian the crime is damage is not required. The mere breaking of
not malversation but Infidelity in the custody the seal or the mere opening of the document
of public records, because the money would already bring about infidelity even though
adduced as exhibits partake the nature of a no damage has been suffered by anyone or by the
document and not as money. Although such public at large. The offender does not have to
monetary consideration acquires the nature misappropriate the same. Just trying to discover
of a document, the best evidence rule does or look what is inside is infidelity already.
not apply here. Example, photocopies may
be presented in evidence. * A crime is already committed regardless of
whether the contents of the document are secret or
 Delivering the document to the wrong party private. It is enough that it is entrusted to him in
is infidelity in the custody thereof a sealed form or in a closed envelope and he
broke the seal or opened the envelop. Public
 The damage may either be great or small trust is already violated if he managed to look
into the contents of the document.
* Damage to public interest is necessary.
However, material damage is not necessary. Distinction between infidelity and theft

 Although there is no material damage There is infidelity if the offender opened the letter
caused, mere delay in rendering public but did not take the same.
service is considered
damage. There is theft if there is intent to gain when the
 The offender must be in custody of such offender took the money.
documents
* Note that the document must be complete in
Distinction between infidelity in the custody legal sense. If the writings are mere form, there
of public document, estafa and malicious is no crime.
mischief
Illustration:
In infidelity in the custody of public document, the
offender is the custodian of the official As regard the payroll, which has not been signed
document removed or concealed. by the Mayor, no infidelity is committed because
the document is not yet a payroll in the legal
In estafa, the offender is not the custodian of the sense since the document has not been signed
document removed or concealed. yet.

In malicious mischief, the offender purposely * In "breaking of seal", the word "breaking"
destroyed and damaged the should not be given a literal meaning. Even if
property/document. actually, the seal was not broken, because the
custodian managed to open the parcel without
breaking the seal.
Article 228
OPENING OF CLOSED DOCUMENTS b. That he has charge of papers.

 ELEMENTS: c. That those papers should not be

a. That the offender is a public officer. published.

b. That any closed papers, documents, or d. That he delivers those papers or copies
objects are entrusted to his custody. thereof to a third person.

c. That he opens or permits to be opened e. That the delivery is wrongful.

said closed papers, documents or
objects. f. That damage be caused to public
interest.
d. That he does not have proper authority.
 Note: Damage also not necessary  Notes:

* In Article 227, the mere breaking of the seal is “CHARGE”: means custody or control. If he is
what is made punishable while in Article 228, merely entrusted with the papers and not with
the mere opening of closed documents is enough the custody thereof, he is not liable under this
to hold the offender criminally liable. The article
breaking of the seal or the opening of the closed
document must be done without lawful authority * If the papers contain secrets which should not
or order from competent authority. In both be published, and the public officer having
offenses, damage to the public interest is not charge thereof removes and delivers them
required. wrongfully to a third person, the crime is
revelation of secrets. On the other hand, if the
REVELATION OF SECRETS papers do not contain secrets, their removal for
an illicit purpose is infidelity in the custody of
Article 229 documents
REVELATION OF SECRET BY AN OFFICER
* Damage is essential to the act committed
 ELEMENTS OF PAR.1: BY REASON OF HIS
OFFICIAL CAPACITY Article 230
a. That the offender is a public officer. PUBLIC OFFICER REVEALING SECRETS OF
b. That he knows of a secret by reason of PRIVATE INDIVIDUAL
his official capacity.  ELEMENTS:
c. That he reveals such secret without a. That the offender is a public office
authority or justifiable reasons. b. That he knows of the secret of a private
d. That damage, great or small, be caused individual by reason of his office.
to the public interest. c. That he reveals such secrets without
(damage is essential) authority or justification reason.

 Notes:  Revelation to one person is sufficient

> Secret must affect public interest
 If the offender is an attorney, he is properly
* The secrets referred to in this article are those liable under Art 209 (betrayal of trust by an
which have an official or public character. It does attorney)
not include secret information regarding private
individuals. Nor does it include military or State  Damage to private individual is not necessary
secrets in as much as the revelation of the same
is classified as espionage, a crime in violation of OTHER OFFENSES OR IRREGULARITIES BY
the national security of the State. PUBLIC OFFICERS

* Secrets of a private individual is not included Article 231

OPEN DISOBEDIENCE
* Espionage for the benefit of another State is not  ELEMENTS:
contemplated by the article. If regarding military a. That the offender is a judicial or executive
secrets or secrets affecting state security, the officer.
crime may be espionage. b. That there is a judgment, decision or
order of superior authority.
 ELEMENTS OF PAR 2 – DELIVERING
WRONGFULLY PAPERS OR COPIES OF c. That such judgment, decision or order was
PAPERS OF WHICH HE MAY HAVE made within the scope of the jurisdiction of
CHARGE AND WHICH SHOULD NOT BE the superior authority and issued with all
PUBLISHED: the legal formalities
a. That the offender is a public officer.
d. that the offender without any legal  Damage to the public interest or third party
justification openly refuses to execute the is essential
said judgment, decision or order which he
is duty bound to obey. * Damage is essential whether great or small. But
the penalty is affected by the seriousness of the
* The gravamen of the offense is the open refusal damage. Note that the refusal must be done with
of the offender to execute the order without malice.
justifiable reason.
 Demand is necessary
 Note: Judgment should have been rendered
in a hearing and issued within proper * The situation contemplated herein may refer to
jurisdiction with all legal solemnities required the administration of justice before the case is
filed in court. Competent authority may refer to
* The term “execute” as found in the law does not persons in authority who are charged by the law
only means performance of an act since the to help in the administration of justice. The term
judgment, decision or order may also direct the may refer to police authorities. However, when a
non-performance of an act. case under investigation reaches the court, the
remedy may not be limited to incurring criminal
* The article does not apply to the members of liability under this article because the refusal
Congress. may already be punished as direct or indirect
contempt of court.
Article 232
DISOBEDIENCE TO ORDER OF SUPERIOR * This is a crime, which a policeman may commit
OFFICER WHEN SAID ORDER WAS when, being subpoenaed to appear in court in
SUSPENDED BY INFERIOR OFFICER connection with a crime investigated by him but
because of some arrangement with the offenders,
ELEMENTS: the policeman does not appear in court anymore
a. That the offender is a public officer. to testify against the offenders. He tried to assail
b. That an order is issued by his superior the subpoena so that ultimately the case would
for execution. be dismissed. It was already held that the
c. That he has for any reason suspended policeman could be prosecuted under this crime
the execution of such order. of refusal of assistance and not that of dereliction
d. That his superior disapproves the of duty.
suspension of the execution of the order.
e. That the offender disobeys his superior Article 234
despite the disapproval of the REFUSAL TO DISCHARGE ELECTIVE OFFICE
suspension.  ELEMENTS:
a. That the offender is elected by popular
 Note: A public officer is not liable if the order election to a public office.
of the superior is illegal b. That he refuses to be sworn in or
discharge the duties of said office.
* What is contemplated here is a situation where c. That there is no legal motive for such
the subordinate has some doubts regarding the refusal to be sworn in or to discharge the
legality of the order. Hence, he is afforded an duties of said office.
opportunity to suspend the execution of the
order, so as to give him time to further study the * After proclamation of a candidate to a public
same. He commits no crime for doing this act. office, it becomes his duty to render public
However, if he continues to suspend the service. Since it is his duty, then his refusal to
execution of the order notwithstanding the perform such duty is punishable under the law.
disapproval by his superior of the stay of the
execution, such refusal on his part already  Note: Even if the person did not run for the
constitutes a crime punishable under this article. office on his own will as the Constitution
provides that every citizen may be required to
Article 233 render service
REFUSAL OF ASSISTANCE
 ELEMENTS: Article 235
a. That the offender is a public officer. MALTREATMENT OF PRISONERS
b. That a competent authority demands  ELEMENTS:
from the offender that he lend his a. That the offender is a public officer or
cooperation towards the administration employee.
of justice or other public service. b. That he has under charge a prisoner or
c. That the offender fails to do so detention prisoner (otherwise the crime is
maliciously. physical injuries)
 Involves a request from one public officer to c. That he maltreats such prisoner in either
another of the following manners:
 1. By overdoing himself in the correction or time a policeman would come in, he would inflict
handling of a prisoner or detention prisoner injury to him. This is not maltreatment of
under his charge either – prisoner because the offender is not the
custodian. The crime is only physical injuries.
 by the imposition of punishments not
authorized by the regulations, or > But if the custodian is present there and he
 by inflicting such punishments (those allowed it, then he will be liable also for the
authorized) in a cruel and humiliating physical injuries inflicted, but not for
manner, or maltreatment because it was not the custodian
who inflicted the injury.
2. by maltreating such prisoner to extort a
confession or to obtain some information > But if it is the custodian who effected the
from the prisoner. maltreatment, the crime will be maltreatment of
prisoners plus a separate charge for physical
* The maltreatment does not really require injuries.
physical injuries. Any kind of punishment not
authorized or though authorized if executed in  Offender may also be held liable for physical
excess of the prescribed degree. injuries or damage caused

> But if as a result of the maltreatment, physical Article 236

injuries were caused to the prisoner, a separate ANTICIPATION OF DUTIES OF A PUBLIC
crime for the physical injuries shall be filed. You OFFICE
do not complex the crime of physical injuries with  ELEMENTS:
the maltreatment because the way Article 235 is a. That the offender is entitled to hold a
worded, it prohibits the complexing of the crime. public office or employment, either by
election or appointment.
* If the maltreatment was done in order to extort b. That the law requires that he should first
confession, therefore, the constitutional right of be sworn in and/or should first give a
the prisoner is further violated. The penalty is bond.
qualified to the next higher degree. c. That he assumes the performance of the
duties and powers of such office
 The public officer must have actual charge of d. That he has not taken his oath of office
the prisoner in order to be held liable and /or given the bond required by law.

* If the public officer is not the custodian of the Article 237

prisoner, and he manhandles the latter, the crime PROLONGING PERFORMANCE OF DUTIES
is physical injuries. AND POWERS
 ELEMENTS:
* If a Barangay Captain maltreats a person after a. That the offender is holding a public
the latter’s arrest but before confinement, the office.
offense is not maltreatment but physical injuries. b. That the period provided by law,
The victim must actually be confined either as a regulations or special provisions for
convict or a detention prisoner for Art. 235 to holding such office has already expired.
apply. (People vs. Baring, et al., 37 O.G. c. That he continues to exercise the duties
1366). and powers of such office.
 Note: The article contemplates officers who
 To be considered a detention prisoner, the have been suspended, separated or declared
person arrested must be placed in jail even over-aged or dismissed
for just a short while
* The crime is committed only if the public officer
* The offended party here must be a prisoner in has lost every right to the office because there are
the legal sense. The mere fact that a private offices which require the officer to continue
citizen had been apprehended or arrested by a serving as such properly relieved. The law is
law enforcer does not constitute him a prisoner. intended to put an end to the “principle of hold –
To be a prisoner, he must have been booked and over”.
incarcerated no matter how short it is.
Article 238
Illustration: ABANDONMENT OF OFFICE OR POSITION
ELEMENTS:
A certain snatcher was arrested by a law a. That the offender is a public officer.
enforcer, brought to the police precinct, turned over b. That he formally resigns from his
to the custodian of that police precinct. Every time position.
a policeman entered the police precinct, he would c. That his resignation has not yet been
ask, “What is this fellow doing here? What crime accepted.
has he committed?”. The other policeman would d. That he abandons his office to the
then tell, “This fellow is a snatcher.” So every detriment of the public service.
 Article 241
 There must be formal or written resignation USURPATION OF JUDICIAL FUNCTIONS
ELEMENTS:
* Oral resignation is not allowed. The resignation a. That the offender is an officer of the
must be in writing and directed to the appointing executive branch of the government.
power who has the authority to accept or b. That he (a.) assumes judicial powers, or
disapprove the same. This requirement is (b.) obstruct the execution of any order
indispensable because the letter of resignation decision rendered by any judge within
goes into a process. his jurisdiction.
 Note: A mayor is guilty under this article
 The offense is qualified if the purpose behind when he investigates a case while a justice of
the abandonment is to evade the discharge of the peace is in the municipality
duties consisting of preventing, prosecuting
or punishing any of the crimes against Article 242
national security. The penalty is higher ( one DISOBEYING REQUEST FOR
degree ). This involves the following crimes: DISQUALIFICATION
a. treason
b. conspiracy and proposal to commit ELEMENTS:
conspiracy a. That the offender is a public officer.
c. misprision of treason b. That a proceeding is pending before
d. espionage such public officer.
e. inciting to war or giving motives to reprisals c. That there is a question brought before
f. violation of neutrality the proper authority regarding his
g. correspondence with hostile country jurisdiction, which is not yet decided.
h. flight to enemy country d. That he has been lawfully required to
i. piracy and mutiny on the high seas refrain from continuing the proceeding.
j. rebellion e. That he continues the proceeding.
k. conspiracy and proposal to commit * Even if the jurisdiction of the offender is later
rebellion upheld or sustained, he is still liable because
l. disloyalty to public officers what is in issue is not the legality of his
m. inciting to rebellion jurisdiction, but whether he obeyed or disobeyed
n. sedition the temporary restraining order issued by the
o. conspiracy to commit sedition higher authority.
p. inciting to sedition
Article 243
Abandonment of Office Dereliction of Duty ORDERS OR REQUESTS BY EXECUTIVE
or Position (238) (208) OFFICER TO ANY JUDICIAL AUTHORITY
There is actual Public officer does ELEMENTS:
abandonment through not abandon his a. That the offender is an executive
resignation to evade the office but merely fails officer.
discharge of duties. to prosecute a b. That he addresses any order or
violation of the law. suggestion to any judicial authority.
c. That the order or suggestion relates
Article 239 to any case or business coming
USURPATION OF LEGISLATIVE POWERS within the exclusive jurisdiction of
ELEMENTS: the courts of justice.
a. That the offender is an executive or
judicial officer.  Note: Legislative or judicial officers are not
b. That he (a.) makes general rules or liable under this article
regulations beyond the scope of his
authority or (b.) attempts to repeal a law Article 244
or (c.) suspends the execution thereof. UNLAWFUL APPOINTMENTS
ELEMENTS:
Article 240 a. That the offender is a public officer.
USURPATION OF EXECUTIVE FUNCTIONS b. That he nominates or appoints a person
ELEMENTS: to a public office.
a. That the offender is a judge. c. That such person lacks the legal
b. That he (a.) assumes a power pertaining qualification therefor.
to the executive authorities, or (b.)
obstructs executive authorities in the d. That the offender knows that his
lawful exercise of their powers. nominee or appointee lacks the
qualification at the time he made the
 Note: Legislative officers are not liable for nomination or appointment.
usurpation of executive functions
 Recommending, knowing that the person
recommended is not qualified is not a crime
 custodian be a man but requires that the
* The word “nominate” is not the same as offended be a woman.
“recommend.” To nominate is to guarantee to the
appointing power that the person nominated has  Solicit: means to propose earnestly and
all the qualifications to the office. persistently something unchaste and
Recommendation on the other hand does not immoral to a woman
make any guarantee as to the legal fitness of the
candidate to public office. * The word “solicit” means to demand earnestly.
In this case, the demand is for sexual favor. It
 There must be a law providing for the must be immoral or indecent and done by the
qualifications of a person to be nominated or public officer taking advantage of his position as
appointed to a public office one who can help by rendering a favorable
decision or unwarranted benefits, advantage or
preference to a person under his custody.
Article 245
ABUSES AGAINST CHASTITY  The crime is consummated by mere proposal
ELEMENTS:
a. That the offender is a public officer. * It is not necessarily for the offended party to
b. That he solicits or makes immoral or surrender her virtue to consummate the crime.
indecent advances to a woman. > Mere proposal is sufficient to consummate
c. That such woman must be – the crime.

1. interested in matters pending before the * Even if the woman may have lied with the
offender for decision, or with respect to hearing officer or to the public officer and
which he is required to submit a report to or acceded to him, that does not change the crime
consult with a superior officer, or because the crime seeks to penalize the taking
advantage of official duties.
2. under the custody of the offender who is a
warden or other public officer directly * It is immaterial whether the woman did not
charged with care and custody of prisoners agree or agreed to the solicitation. If the woman
or person under arrest, or did not agree and the public officer involved
pushed through with the advances, attempted
3. the wife, daughter, sister or relative within rape may have been committed.
the same degree by affinity of the person in
the custody of the offender * Legally, a prisoner is an accountability of the
government. So the custodian is not supposed to
* Only a lady can be a complainant here so that a interfere. Even if the prisoner may like it, he is
gay guard or warden who makes immoral not supposed to do that. Otherwise, abuse
proposals or indecent advances to a male against chastity is committed.
prisoner is not liable under this law.
* If he forced himself against the will of the
* Mere indecent solicitation or advances of a woman, another crime is committed, that is, rape
woman over whom the public officer exercises a aside from abuse against chastity.
certain influence because the woman is involved
in a case where the offender is to make a report * You cannot consider the abuse against chastity
of result with superiors or otherwise a case which as absorbed in the rape because the basis of
the offender was investigating. penalizing the acts is different from each other.

* This crime is also committed if the woman is a  Proof of solicitation is not necessary when
prisoner and the offender is her jail warden or there is sexual intercourse
custodian, or even if the prisoner may be a man if
the jail warden would make the immoral Republic Act No. 7877 (Anti-Sexual
solicitations upon the wife, sister, daughter, or Harassment Act)
relative by affinity within the same degree of the > Committed by any person having authority,
prisoner involved. influence or moral ascendancy over another in a
work, training or education environment when he
 The mother of the person in the custody of or she demands, requests, or otherwise requires
the public officer is not included any sexual favor from the other regardless of
whether the demand, request or requirement for
* This crime cannot be committed if the warden is submission is accepted by the object of the said
a woman and the prisoner is a man. Men have act (for a passing grade, or granting of
no chastity. scholarship or honors, or payment of a stipend,
allowances, benefits, considerations; favorable
* If the warden is also a woman but is a lesbian, compensation terms, conditions, promotions or
it is submitted that this crime could be when the refusal to do so results in a detrimental
committed, as the law does not require that the consequence for the victim).
 * The relationship must be in the direct line and
> Also holds liable any person who directs or not in the collateral line.
induces another to commit any act of sexual
harassment, or who cooperates in the * The relationship between the offender and the
commission, the head of the office, educational or offended party must be legitimate, except when
training institution solidarily. the offender and the offended party are related as
parent and child.
> Complaints to be handled by a committee on
decorum, which shall be determined by rules and * Except between husband and wife, the offender
regulations on such. must be related to the offended party by blood.

> Administrative sanctions shall not be a bar to * Parents and children are not included in the
prosecution in the proper courts for unlawful term “ascendants” or “descendants”
acts of sexual harassment.
* The other ascendant or descendant must be
legitimate. On the other hand, the father, mother
TITLE EIGHT or child may be legitimate or illegitimate
CRIMES AGAINST PERSONS
Crimes against persons * If the offender and the offended party, although
1. Parricide (Art. 246); related by blood and in the direct line, are
2. Murder (Art. 248); separated by an intervening illegitimate
3. Homicide (Art. 249); relationship, parricide can no longer be committed.
4. Death caused in a tumultuous affray The illegitimate relationship between the child
(Art. 251); and the parent renders all relatives after the child
5. Physical injuries inflicted in a in the direct line to be illegitimate too.
tumultuous affray (Art. 252);
6. Giving assistance to suicide (Art. 253); * The only illegitimate relationship that can bring
7. Discharge of firearms (Art. 254); about parricide is that between parents and
8. Infanticide (Art. 255); illegitimate children as the offender and the
9. Intentional abortion (Art. 256); offended parties.
10. Unintentional abortion (Art. 257);
11. Abortion practiced by the woman herself Illustration:
or by her parents (Art. 258);
12. Abortion practiced by a physician or A is the parent of B, the illegitimate daughter. B
midwife and dispensing of abortives (Art. married C and they begot a legitimate child D. If
259); D, daughter of B and C, would kill A, the
13. Duel (Art. 260); grandmother, the crime cannot be parricide
14. Challenging to a duel (Art. 261); anymore because of the intervening illegitimacy.
15. Mutilation (Art. 262); The relationship between A and D is no longer
16. Serious physical injuries (Art. 263); legitimate. Hence, the crime committed is
17. Administering injurious substances or homicide or murder.
beverages (Art. 264);
18. Less serious physical injuries (Art. 265); * A, an illegitimate son of B, who killed the
19. Slight physical injuries and maltreatment legitimate father of the latter, is not guilty of
(Art. 266); and Parricide because in case of other ascendants
20. Rape (Art. 266-A). (grandparents, great grandparents, etc.), the
relationship with the killer must be legitimate.
DESTRUCTION OF LIFE The same is true with other descendants – that
is, grandchildren, great grandchildren, etc.
Article 246
PARRICIDE * The child should not be less than 3 days old.
ELEMENTS: Otherwise, the offense is infanticide
1. That a person is killed.
2. That the deceased is killed by the * That the mother killed her child in order to
accused. conceal her dishonor is not mitigating. This is
3. That the deceased is the father, mother, immaterial to the crime of parricide, unlike in the
or child, whether legitimate or case of infanticide. If the child is less than three
illegitimate, or a legitimate other days old when killed, the crime is infanticide and
ascendant or other descendant, or the intent to conceal her dishonor is considered
legitimate spouse of the accused. mitigating.

Notes: * Relationship must be alleged

* The relationship of the offender with the victim
is the essential element of the felony * In killing a spouse, there must be a valid
subsisting marriage at the time of the killing. Also,
the information should allege the fact of such valid where a person wanting to kill a stranger, kills
marriage between the accused and the victim. his own father by mistake. Although the crime
committed is parricide, the offender will not be
* In a ruling by the Supreme Court, it was held punished under Article 246 but under Article 49,
that if the information did not allege that the which prescribes a penalty much lower than that
accused was legally married to the victim, he provided under Article 246.
could not be convicted of parricide even if the
marriage was established during the trial. In such Article 247
cases, relationship shall be appreciated as DEATH OR PHYSICAL INJURIES UNDER
generic aggravating circumstance. EXCEPTIONAL
CIRCUMSTANCES
* The Supreme Court has also ruled that Muslim Requisites:
husbands with several wives can be convicted of 1. A legally married person or parent
parricide only in case the first wife is killed. There surprises his spouse or daughter (the
is no parricide if the other wives are killed latter must be under 18 and living with them)
although their marriage is recognized as valid. in the act of committing sexual
This is so because a Catholic man can commit intercourse with another person
the crime only once. If a Muslim husband could 2. He/she kills any or both of them or
commit this crime more than once, in effect, he is inflicts upon any or both of them any
being punished for the marriage which the law serious physical injury in the act or
itself authorized him to contract. immediately thereafter
3. He has not promoted or facilitated the
* A stranger who cooperates in committing prostitution of his wife or daughter, or
parricide is liable for murder or homicide that he has not consented to the
infidelity of the other spouse.
* Since parricide is a crime of relationship, if a
stranger conspired in the commission of the crime, Notes:
he cannot be held liable for parricide. His * Article does not define or penalize a felony
participation would make him liable for murder
or for homicide, as the case may be. The rule of * Article 247, far from defining a felony merely
conspiracy that the act of one is the act of all does grants a privilege or benefit, more of an
not apply here because of the personal exempting circumstance as the penalty is
relationship of the offender to the offended party. intended more for the protection of the accused
than a punishment. Death under exceptional
Illustration: character can not be qualified by either
aggravating or mitigating circumstances.
A spouse of B conspires with C to kill B. C is the
stranger in the relationship. C killed B with * If the accused fails to establish the
treachery. The means employed is made known circumstances called for in Article 247, he/she
to A and A agreed that the killing will be done by will be guilty of Parricide and Murder or Homicide
poisoning. if the victims were killed.

As far as A is concerned, the crime is based on * Not necessary that the parent be legitimate
his relationship with B. It is therefore parricide.
The treachery that was employed in killing Bong * Article applies only when the daughter is single
will only be generic aggravating circumstance in
the crime of parricide because this is not one * SURPRISE: means to come upon suddenly or
crime that requires a qualifying circumstance. unexpectedly

But that same treachery, insofar as C is * Art 247 is applicable when the accused did not
concerned, as a stranger who cooperated in the see his spouse in the act sexual intercourse with
killing, makes the crime murder; treachery another person. However, it is enough that
becomes a qualifying circumstance. circumstances reasonably show that the carnal
act is being committed or has been committed
* Even if the offender did not know that the
person he had killed is his son, he is still liable * It is not necessary that the spouse actually saw
for parricide because the law does not require the sexual intercourse being committed. It is
knowledge of the relationship enough that he/she surprised them under such
circumstances that no other reasonable
* Article 365 expressly provides that parricide can conclusion can be inferred but that a carnal act
be committed through reckless imprudence. The was being performed or has just been committed.
penalty will not be under Article 246 but under
Article 365. * The article does not apply where the wife was
not surprised in flagrant adultery but was being
* Similarly, parricide can be committed by abused by a man as in this case there will be
mistake. This is demonstrated in a situation defense of relation.
 circumstances is not murder. The accused was
* If the offender surprised a couple in sexual held liable for negligence under the first part,
intercourse, and believing the woman to be his second paragraph of Article 365, that is, less
wife, killed them, this article may be applied if serious physical injuries through simple
the mistake of facts is proved. negligence. No aberratio ictus because he was
acting lawfully.
* The benefits of this article do not apply to the
person who consented to the infidelity of his * A person who acts under Article 247 is not
spouse or who facilitated the prostitution of his committing a crime. Since this is merely an
wife. exempting circumstance, the accused must first
be charged with:
* Sexual intercourse does not include preparatory
acts (1) Parricide – if the spouse is killed;

* So if the surprising took place before any actual (2) Murder or homicide – depending on how
sexual intercourse could be done because the the killing was done insofar as the
parties are only in their preliminaries, the article paramour or the mistress is concerned;
cannot be invoked anymore.
(3) Homicide – through simple negligence, if
* IMMEDIATELY THEREAFTER: means that the a third party is killed;
discovery, escape, pursuit and the killing must
all form parts of one continuous act (4) Physical injuries – through reckless
imprudence, if a third party is injured.
* The phrase “immediately thereafter” has been
interpreted to mean that between the * If death results or the physical injuries are
surprising and the killing of the serious, there is criminal liability although the
inflicting of the physical injury, there penalty is only destierro. The banishment is
should be no break of time. In other intended more for the protection of the offender
words, it must be a continuous rather than a penalty.
process.
* If the crime committed is less serious physical
* If there was already a break of time between the injuries or slight physical injuries, there is no
sexual act and the killing or inflicting of the criminal liability.
injury, the law presupposes that the offender
regained his reason and therefore, the article will Article 248
not apply anymore. MURDER
ELEMENTS :
* The killing must be the direct by-product of the 1. That a person was killed.
rage of the accused 2. That the accused killed him.
3. That the killing was attended by any of
* Article 247 does not provide that the victim is to the following qualifying circumstances
be killed instantly by the accused after surprising
his spouse in the act of intercourse. What is a. with treachery, taking advantage of superior
required is that the killing is the proximate result strength, with the aid or armed men, or
of the outrage overwhelming the accused upon employing means to weaken the defense or of
the discovery of the infidelity of his spouse. The means or persons to insure or afford impunity
killing should have been actually motivated by
the same blind impulse. b. in consideration of price, reward or promise

* No criminal liability is incurred when less c. by means of inundation, fire, poison,

serious or slight physical injuries are inflicted. explosion, shipwreck, stranding of vessel,
Moreover, in case third persons caught in the derailment or assault upon a street car or
crossfire suffer physical injuries, the accused is locomotive, fall of airship, by means of motor
not liable. The principle that one is liable for the vehicles or with the use of any other means
consequences of his felonious act is not involving great waste or ruin
applicable because he is not committing a felony
d. on occasion of any of the calamities
* In the case of People v. Abarca, 153 SCRA enumerated in the preceding paragraph, or of
735, two persons suffered physical injuries as an earthquake, eruption of a volcano,
they were caught in the crossfire when the destructive cyclone, epidemic or any other
accused shot the victim. A complex crime of public calamity
double frustrated murder was not committed as
the accused did not have the intent to kill the two e. with evident premeditation
victims. Here, the accused did not commit
murder when he fired at the paramour of his
wife. Inflicting death under exceptional
f. with cruelty, by deliberately and inhumanely of nocturnity is considered by itself, it is not
augmenting the suffering of the victim or one of those which qualify a homicide to
outraging or scoffing at his person or corpse murder. One might think the killing is
homicide unless nocturnity is considered as
4. The killing is not parricide or infanticide constituting treachery, in which case the
Notes: crime is murder.
* While the circumstance of “by a band” is not
among those enumerated that could qualify The essence of treachery is that the offended
killing to murder, it would seem that if the killers party was denied the chance to defend himself
constituted a band, the crime is murder because because of the means, methods, form in
the circumstance of “with the aid of armed men” executing the crime deliberately adopted by
is included in the qualifying circumstances. the offender. It is a matter of whether or not
the offended party was denied the chance of
* The victim must be killed in order to defending himself.
consummate the offense. Otherwise, it would be
attempted or frustrated murder If the offended was denied the chance to defend
himself, treachery qualifies the killing to
* Killing a person with treachery is murder even if murder. If despite the means resorted to by
there is no intent to kill. (People vs. Cagoco, 58 the offender, the offended was able to put up a
Phil. 530) defense, although unsuccessful, treachery is
not available. Instead, some other
* Any of the qualifying circumstances must be circumstance may be present. Consider now
alleged in the information. Otherwise, they will whether such other circumstance qualifies the
only be considered as generic aggravating killing or not.
circumstances
Illustration:
* When the other circumstances are absorbed or
included in one qualifying circumstance, they If the offender used superior strength and
cannot be treated or separated as generic the victim was denied the chance to defend
aggravating circumstances. (People vs. himself, there is treachery. The treachery must
Remalante, 92 Phil. 48) be alleged in the information. But if the victim
was able to put up an unsuccessful resistance,
* Treachery and premeditation are inherent in there is no more treachery but the use of
murder with the use of poison superior strength can be alleged and it also
qualifies the killing to murder.
Ortega Notes:
One attendant qualifying circumstance is
In murder, any of the following qualifying enough. If there are more than one qualifying
circumstances is present: circumstance alleged in the information for
murder, only one circumstance will qualify the
(1) Treachery, taking advantage of superior killing to murder and the other circumstances
strength, aid or armed men, or employing will be taken as generic.
means to waken the defense, or of means or
persons to insure or afford impunity; To be considered qualifying, the particular
circumstance must be alleged in the information.
There is treachery when the offender commits If what was alleged was not proven and instead
any of the crimes against the person another circumstance, not alleged, was
employing means, methods or forms in the established during the trial, even if the latter
execution thereof that tend directly and constitutes a qualifying circumstance under
especially to insure its execution without risk Article 248, the same can not qualify the killing
to himself arising from the defense which the to murder. The accused can only be convicted
offended party might make. of homicide.

This circumstance involves means, methods, Generally, murder cannot be committed if at

form in the execution of the killing which may the beginning, the offended had no intent to kill
actually be an aggravating circumstance also, because the qualifying circumstances must be
in which case, the treachery absorbs the resorted to with a view of killing the offended
same. party. So if the killing were at the “spur of the
moment”, even though the victim was denied
Illustration: the chance to defend himself because of the
suddenness of the attack, the crime would only
A person who is determined to kill resorted to be homicide. Treachery contemplates that the
the cover of darkness at nighttime to insure means, methods and form in the execution were
the killing. Nocturnity becomes a means that consciously adopted and deliberately resorted
constitutes treachery and the killing would be to by the offender, and were not merely
murder. But if the aggravating circumstance incidental to the killing.
 offender is to kill and fire was only used as a
If the offender may have not intended to kill means to do so, the crime is only murder. If
the victim but he only wanted to commit a crime the primordial criminal intent of the offender
against him in the beginning, he will still be is to destroy property with the use of
liable for murder if in the manner of committing pyrotechnics and incidentally, somebody
the felony there was treachery and as a within the premises is killed, the crime is
consequence thereof the victim died. This is arson with homicide. But this is not a
based on the rule that a person committing a complex crime under Article 48. This is
felony shall be liable for the consequences single indivisible crime penalized under
thereof although different from that which he Article 326, which is death as a consequence
intended. of arson. That somebody died during such
fire would not bring about murder because
Illustration: there is no intent to kill in the mind of the
offender. He intended only to destroy
The accused, three young men, resented the fact property. However, a higher penalty will be
that the victim continued to visit a girl in their applied.
neighborhood despite the warning they gave
him. So one evening, after the victim had visited * When killing was accomplished “by means of
the girl, they seized and tied him to a tree, with fire” alleged in the information, it does not qualify
both arms and legs around the tree. They killing to Murder unless the use of fire was
thought they would give him a lesson by employed to kill the victim.
whipping him with branches of gumamela until
the victim fell unconscious. The accused left not In People v. Pugay and Samson, 167 SCRA 439,
knowing that the victim died. there was a town fiesta and the two accused were
at the town plaza with their companions. All were
The crime committed was murder. The accused uproariously happy, apparently drenched with
deprived the victim of the chance to defend drink. Then, the group saw the victim, a 25 year
himself when the latter was tied to a tree. old retard walking nearby and they made him
Treachery is a circumstance referring to the dance by tickling his sides with a piece of wood.
manner of committing the crime. There was no The victim and the accused Pugay were friends
risk to the accused arising from the defense by and, at times, slept in the same place together.
the victim. Having gotten bored with their form of
entertainment, accused Pugay went and got a can
Although what was initially intended was of gasoline and poured it all over the retard. Then,
physical injury, the manner adopted by the the accused Samson lit him up, making him a
accused was treacherous and since the victim frenzied, shrieking human torch. The retard died.
died as a consequence thereof, the crime is
murder -- although originally, there was no It was held that Pugay was guilty of homicide
intent to kill. through reckless imprudence. Samson only guilty
of homicide, with the mitigating circumstance of no
When the victim is already dead, intent to kill intention to commit so grave a wrong. There was
becomes irrelevant. It is important only if the no animosity between the two accused and the
victim did not die to determine if the felony is victim such that it cannot be said that they resort
physical injury or attempted or frustrated to fire to kill him. It was merely a part of their fun
homicide. making but because their acts were felonious, they
are criminally liable.
So long as the means, methods and form in the
execution is deliberately adopted, even if there (4) On occasion of any of the calamities
was no intent to kill, there is treachery. enumerated in the preceding paragraph c, or
an earthquake, eruption of volcano,
(2) In consideration of price, reward or promises; destructive cyclone, epidemic or any other
public calamity;
(3) Inundation, fire, poison, explosion,
shipwreck, stranding of a vessel, derailment (5) Evident premeditation; and
or assault upon a street car or locomotive, fall
of an airship, by means of a motor vehicle, or * When the actual victim turns out to be different
with the use of other means involving great from the intended victim, premeditation is not
waste and ruin; aggravating. (People vs. Guillen, 85 Phil. 307)

The only problem insofar as the killing by fire is (6) Cruelty, by deliberately and inhumanly
concerned is whether it would be arson with augmenting the suffering of the victim, or
homicide, or murder. outraging or scoffing at his person or corpse.

When a person is killed by fire, the primordial Cruelty includes the situation where the
criminal intent of the offender is considered. victim is already dead and yet, acts were
If the primordial criminal intent of the committed which would decry or scoff the
 corpse of the victim. The crime becomes (7) Where the accused housemaid gagged a three
murder. year old boy, son of her master, with
stockings, placed him in a box with head
Hence, this is not actually limited to cruelty. down and legs upward and covered the box
It goes beyond that because even if the with some sacks and other boxes, and the
victim is already a corpse when the acts child instantly died because of suffocation,
deliberately augmenting the wrong done to and then the accused demanded ransom from
him were committed, the killing is still the parents, such did not convert the offense
qualified to murder although the acts done into kidnapping with murder. The accused
no longer amount to cruelty. was well aware that the child could be
suffocated to death in a few minutes after she
Under Article 14, the generic aggravating left. Ransom was only a part of the diabolical
circumstance of cruelty requires that the scheme to murder the child, to conceal his
victim be alive, when the cruel wounds were body and then demand money before
inflicted and, therefore, must be evidence to discovery of the body.
that effect. Yet, in murder, aside from
cruelty, any act that would amount to * The essence of kidnapping or serious illegal
scoffing or decrying the corpse of the victim detention is the actual confinement or restraint of
will qualify the killing to murder. the victim or deprivation of his liberty. If there is
no showing that the accused intended to deprive
Illustration: their victims of their liberty for some time and
there being no appreciable interval between their
Two people engaged in a quarrel and they being taken and their being shot, murder and not
hacked each other, one killing the other. Up to kidnapping with murder is committed.
that point, the crime is homicide. However, if
the killer tried to dismember the different parts
of the body of the victim, indicative of an Article 249
intention to scoff at or decry or humiliate the HOMICIDE
corpse of the victim, then what would have ELEMENTS:
murder because this circumstance is 1. That a person was killed.
recognized under Article 248, even though it 2. That the accused killed him without any
was inflicted or was committed when the victim justifying circumstances.
was already dead. 3. That the accused had the intention to
kill, which is presumed.
The following are holdings of the Supreme 4. That the killing was not attended by any
Court with respect to the crime of murder: of the qualifying circumstances of
murder, or by that of parricide or
(1) Killing of a child of tender age is murder infanticide.
qualified by treachery because the weakness
of the child due to his tender age results in Notes:
the absence of any danger to the aggressor. * Homicide is the unlawful killing of a person not
constituting murder, parricide or infanticide.
(2) Evident premeditation is absorbed in price,
reward or promise, if without the * Intent to kill is conclusively presumed when
premeditation the inductor would not have death resulted. Hence, evidence of intent to kill is
induced the other to commit the act but not required only in attempted or frustrated homicide
as regards the one induced.
* In all crimes against persons in which the death
(3 Abuse of superior strength is inherent in and of the victim is an element, there must be
comprehended by the circumstance of satisfactory evidence of (1) the fact of death and
treachery or forms part of treachery. (2) the identity of the victim

(4) Treachery is inherent in poison. Distinction between homicide and physical

injuries:
(5) Where one of the accused, who were charged
with murder, was the wife of the deceased but In attempted or frustrated homicide, there is
here relationship to the deceased was not intent to kill.
alleged in the information, she also should be
convicted of murder but the relationship In physical injuries, there is none. However, if as
should be appreciated as aggravating. a result of the physical injuries inflicted, the
victim died, the crime will be homicide because
(6) Killing of the victims hit by hand grenade the law punishes the result, and not the intent of
thrown at them is murder qualified by the act.
explosion not by treachery.
The following are holdings of the Supreme
Court with respect to the crime of homicide:
 ELEMENTS:
(1) Physical injuries are included as one of the 1. That there be several persons.
essential elements of frustrated homicide. 2. That they did not compose groups
organized for the common purpose of
(2) If the deceased received two wounds from assaulting and attacking each other
two persons acting independently of each reciprocally.
other and the wound inflicted by either 3. That these several persons quarreled and
could have caused death, both of them are assaulted one another in a confused and
liable for the death of the victim and each of tumultuous manner.
them is guilty of homicide. 4. That someone was killed in the course of
the affray.
(3) If the injuries were mortal but were only due 5. That it cannot be ascertained who
to negligence, the crime committed will be actually killed the deceased.
serious physical injuries through reckless 6. That the person or persons who inflicted
imprudence as the element of intent to kill serious physical injuries or who used
in frustrated homicide is incompatible with violence can be identified.
negligence or imprudence.
Notes:
(4) Where the intent to kill is not manifest, the * Tumultuous affray exists when at least 4
crime committed has been generally persons take part in it
considered as physical injuries and not
attempted or frustrated murder or homicide. * When there are 2 identified groups of men who
assaulted each other, there is no tumultuous
(5) When several assailants not acting in affray
conspiracy inflicted wounds on a victim but
it cannot be determined who inflicted which Persons liable are:
would which caused the death of the victim, a. person/s who inflicted serious physical
all are liable for the victim’s death. injuries

* Note that while it is possible to have a crime of b. if it is not known who inflicted serious
homicide through reckless imprudence, it is not physical injuries on the deceased, all
possible to have a crime of frustrated homicide persons who used violence upon the person
through reckless imprudence. of the victim

* If a boxer killed his opponent in a boxing bout * If those who actually killed the victim can be
duly licensed by the Government without any determined, they will be the ones to be held
violation of the governing rules and regulations, liable, and those who inflicted serious or less
there is no Homicide to speak of. If he hit his serious or slight physical injuries shall be
opponent below the belt without any intention to punished for said corresponding offenses
do so, it is Homicide Through Reckless provided no conspiracy is established with the
Imprudence if the latter died as a result. If he killers.
intentionally hit his opponent on that part of his
body causing the death, the crime is Homicide. TUMULTUOUS AFFRAY simply means a
commotion in a tumultuous and
* The shooting of a peace officer who was fully confused manner, to such an extent
aware of the risks in pursuing the malefactors that it would not be possible to identify
when done in a spur of the moment is only who the killer is if death results, or who
Homicide. (People vs. Porras, 255 SCRA 514). inflicted the serious physical injury, but
the person or persons who used
Common misconception on the meaning of violence are known.
corpus delicti.
* It is not a tumultuous affray which brings
Corpus delicti means body of the crime. It does not about the crime; it is the inability to ascertain
refer to the body of the murdered person. In all actual perpetrator. It is necessary that the very
crimes against persons in which the death of the person who caused the death can not be known,
victim is an element of the crime, there must be not that he can not be identified. Because if he is
proof of the fact of death and identity of the known but only his identity is not known, then
victim. (Cortez vs. Court of Appeals, 162 SCRA he will be charged for the crime of homicide or
139) murder under a fictitious name and not death in
a tumultuous affray. If there is a conspiracy, this
Article 250 crime is not committed.
PENALTY FOR FRUSTRATED PARRICIDE,
MURDER OR HOMICIDE To be considered death in a tumultuous
affray, there must be:
Article 251
DEATH IN A TUMULTOUS AFFRAY
(1) a quarrel, a free-for-all, which should * If the physical injury sustained is only slight,
not involve organized group; and this is considered as inherent in a tumultuous
affray. The offended party cannot complain if he
(2) someone who is injured or killed because cannot identify who inflicted the slight physical
of the fight. injuries on him.
* Note that in slight physical injuries is inflicted
* The person killed in the affray need not be one in the tumultuous affray and the identity of the
of the participants. offender is established, the provisions of this
article will not be observed. Instead, the offender
* As long as it cannot be determined who killed shall be prosecuted in the ordinary course of law.
the victim, all of those persons who inflicted
serious physical injuries will be collectively Article 253
answerable for the death of that fellow. GIVING ASSISTANCE TO SUICIDE
 Acts punishable:
The Revised Penal Code sets priorities as to 1. Assisting another to commit suicide,
who may be liable for the death or physical whether the suicide is consummated or
injury in tumultuous affray: not

(1) The persons who inflicted serious physical 2. Lending his assistance to another to
injury upon the victim; commit suicide to the extent of doing the
killing himself
(2) If they could not be known, then anyone who
may have employed violence on that person  Notes:
will answer for his death. * Giving assistance to suicide means giving
means (arms, poison, etc.) or whatever manner of
(3) If nobody could still be traced to have positive and direct cooperation (intellectual aid,
employed violence upon the victim, nobody suggestions regarding the mode of committing
will answer. The crimes committed might be suicide, etc.).
disturbance of public order, or if participants
are armed, it could be tumultuous * A person who attempts to commit suicide is not
disturbance, or if property was destroyed, it criminally liable
could be malicious mischief.
* In this crime, the intention must be for the
person who is asking the assistance of another to
Article 252 commit suicide.
PHYSICAL INJURIES INFLICTED IN A
TUMULTOUS AFFRAY * If the intention is not to commit suicide, as
ELEMENTS: when he just wanted to have a picture taken of
1. that there is a tumultuous affray as him to impress upon the world that he is
referred to in the preceding article. committing suicide because he is not satisfied
2. That a participant or some participants with the government, the crime is held to be
thereof suffer serious physical injuries or inciting to sedition.
physical injuries of a less serious nature
only. > He becomes a co-conspirator in the crime of
3. that the person responsible therefor inciting to sedition, but not of giving assistance to
cannot be identified. suicide because the assistance must be given to
4. That all those who appear to have used one who is really determined to commit suicide.
violence upon the person of the offended
party are known. * A pregnant woman who tried to commit suicide
by means of poison but instead of dying, the
* Unlike in Article 251, where the victim need not fetus in her womb was expelled, is not liable for
be one of the participants, the injured party in the abortion
crime of physical injuries inflicted in tumultuous
affray must be one or some of those involved in * Assistance to suicide is different from mercy-
the quarrel. killing. Euthanasia/mercy-killing is the practice
of painlessly putting to death a person suffering
* In physical injuries caused in a tumultuous from some incurable disease. In this case, the
affray, the conditions are also the same. But you person does not want to die. A doctor who resorts
do not have a crime of physical injuries resulting to euthanasia may be held liable for murder
from a tumultuous affray if the physical injury is
only slight. The physical injury should be serious * If the person does the killing himself, the
or less serious and resulting from a tumultuous penalty is similar to that of homicide, which is
affray. So anyone who may have employed reclusion temporal. There can be no qualifying
violence will answer for such serious or less circumstance because the determination to die
serious physical injury. must come from the victim. This does not
contemplate euthanasia or mercy killing where
the crime is murder, if without consent; if with party at random, not knowing in what part of the
consent, covered by Article 253. house the people were, it is only alarm under art
155.
* In mercy killing, the victim is not in a position
to commit suicide. Whoever would heed his * Usually, the purpose of the offender is only to
advice is not really giving assistance to suicide intimidate or frighten the offended party
but doing the killing himself. In giving assistance
to suicide, the principal actor is the person * Intent to kill is negated by the fact that the
committing the suicide. distance between the victim and the offender is
200 yards
* Both in euthanasia and suicide, the intention to
the end life comes from the victim himself; * A person can be held liable for discharge even if
otherwise the article does not apply. The victim the gun was not pointed at the offended party
must persistently induce the offender to end his when it fired for as long as it was initially aimed
life. at or against the offended party

* Penalty is mitigated if suicide is not successful

The following are holdings of the Supreme
* Even if the suicide did not materialize, the Court with respect to this crime:
person giving assistance to suicide is also liable
but the penalty shall be one or two degrees lower (1) If serious physical injuries resulted from
depending on whether it is frustrated or discharge, the crime committed is the
attempted suicide. complex crime of serious physical injury
with illegal discharge of firearm, or if less
The following are holdings of the Supreme serious physical injury, the complex
Court with respect to this crime: crime of less serious physical injury with
illegal discharge of firearm will apply.
(1) The crime is frustrated if the offender
gives the assistance by doing the killing (2) Firing a gun at a person even if merely to
himself as firing upon the head of the frighten him constitutes illegal discharge
victim but who did not die due to medical of firearm.
assistance.
* The gun used in the crime must be licensed, or
(2) The person attempting to commit suicide the person using the firearm must be authorized
is not liable if he survives. The accused to carry the same, otherwise, in addition to the
is liable if he kills the victim, his crime punished under this article, accused may
sweetheart, because of a suicide pact. also be held liable for illegal possession of firearm
under Republic Act No. 1866 as amended by
Article 254 Republic Act No. 8294.
DISCHARGE OF FIREARMS
ELEMENTS: Article 255
1. that the offender discharges a firearm INFANTICIDE
against or at another person. ELEMENTS:
2. That the offender has no intention to kill 1. That a child was killed.
that person. 2. That the deceased child was less than
three days (72 hours) of age.
 Notes: 3. That the accused killed the said child.
* This crime cannot be committed through
imprudence because it requires that the Notes:
discharge must be directed at another. * When the offender is the father, mother or
legitimate ascendant, he shall suffer the penalty
* The offender must shoot at another with any prescribed for parricide. If the offender is any
firearm without intention of killing him. If the other person, the penalty is that for murder. In
firearm is not discharged at a person, the act is either case, the proper qualification for the
not punished under this article offense is infanticide

* If the firearm is directed at a person and the * Even if the killer is the mother or the father or
trigger was pressed but did not fire, the crime is the legitimate grandparents, the crime is still
frustrated discharge of firearm. Infanticide and not Parricide. The penalty
however, is that for Parricide.
* If the discharge is not directed at a person, the
crime may constitute alarm and scandal. Illustration:

* A discharge towards the house of the victim is An unmarried woman, A, gave birth to a child, B.
not discharge of firearm. On the other hand, To conceal her dishonor, A conspired with C to
firing a gun against the house of the offended
dispose of the child. C agreed and killed the child umbilical cord is cut. This is so because there is
B by burying the child somewhere. difficulty of determining whether the crime
committed is infanticide or abortion. In such a
If the child was killed when the age of the child situation, the court may avail of expert testimony
was three days old and above already, the crime in order to help it arrive at a conclusion. So, if it
of A is parricide. The fact that the killing was is shown that the infant cannot survive within 24
done to conceal her dishonor will not mitigate the hours, the crime committed is abortion; otherwise
criminal liability anymore because concealment if it can survive, the crime would be infanticide.
of dishonor in killing the child is not mitigating in
parricide.
Article 256
If the crime committed by A is parricide because INTENTIONAL ABORTION
the age of the child is three days old or above, the ELEMENTS:
crime of the co-conspirator C is murder. It is not 1. That there is a pregnant woman.
parricide because he is not related to the victim. 2. That violence is exerted, or drugs or
beverages administered, or that the
If the child is less than three days old when killed, accused otherwise acts upon such
both the mother and the stranger commits pregnant woman.
infanticide because infanticide is not predicated 3. That as a result of the use of violence or
on the relation of the offender to the offended drugs or beverages upon her, or any other
party but on the age of the child. In such a case, act of the accused, the fetus dies, either
concealment of dishonor as a motive for the in the womb or after having been expelled
mother to have the child killed is mitigating. therefrom.
4. That the abortion is intended.
* When infanticide is committed by the mother
or maternal grandmother in order to conceal the Ortega Notes:
dishonor, such fact is only mitigating Acts punished

* The delinquent mother who claims that she 1. Using any violence upon the person of the
committed the offense to conceal the dishonor pregnant woman;
must be of good reputation. Hence, if she is a
prostitute, she is not entitled to a lesser penalty 2. Acting, but without using violence, without
because she has no honor to conceal the consent of the woman. (By administering
drugs or beverages upon such pregnant
* Concealment of dishonor is not an element of woman without her consent.)
infanticide. It merely lowers the penalty. If the
child is abandoned without any intent to kill and 3. Acting (by administering drugs or beverages),
death results as a consequence, the crime with the consent of the pregnant woman.
committed is not infanticide but abandonment
under Article 276. > Abortion is the violent expulsion of a fetus from
the maternal womb. If the fetus has been
* If the purpose of the mother is to conceal her delivered but it could not subsist by itself, it is
dishonor, infanticide through imprudence is not still a fetus and not a person. Thus, if it is killed,
committed because the purpose of concealing the the crime committed is abortion not infanticide.
dishonor is incompatible with the absence of
malice in culpable felonies. Distinction between infanticide and abortion

* There is no infanticide when the child was born It is infanticide if the victim is already a person
dead, or although born alive it could not sustain less that three days old or 72 hours and is viable
an independent life when it was killed or capable of living separately from the mother’s
womb.
* In our study of persons and family relations, we
have learned that birth determines personality. It is abortion if the victim is not viable but
So fetus becomes a person by the legal fact of remains to be a fetus.
birth. The Civil Code provides that, if the fetus
had an intra-uterine life of less than seven (7) > Abortion is not a crime against the woman but
months, it will be considered born only if it against the fetus. If mother as a consequence of
survives 24 hours after the umbilical cord is cut. abortion suffers death or physical injuries, you
If such fetus is killed within the 24-hour period, have a complex crime of murder or physical
we have to determine if it would have survived or injuries and abortion.
it would have died nonetheless, had it not been
killed. > In intentional abortion, the offender must know
of the pregnancy because the particular criminal
> A legal problem occurs when a fetus having an intention is to cause an abortion. Therefore, the
intra-uterine life of less than 7 months, born offender must have known of the pregnancy for
alive, is killed within 24 hours from the time the otherwise, he would not try an abortion.
> If the woman turns out not to be pregnant and > One who persuades her sister to abort is a co-
someone performs an abortion upon her, he is principal, and one who looks for a physician to
liable for an impossible crime if the woman make his sweetheart abort is an accomplice. The
suffers no physical injury. If she does, the crime physician will be punished under Article 259 of
will be homicide, serious physical injuries, etc. the Revised Penal Code.

> Under the Article 40 of the Civil Code, birth

determines personality. A person is considered Article 257
born at the time when the umbilical cord is cut. UNINTENTIONAL ABORTION
He then acquires a personality separate from the ELEMENTS:
mother. 1. That there is a pregnant woman.
2. That violence is used upon such pregnant
> But even though the umbilical cord has been woman without intending an abortion.
cut, Article 41 of the Civil Code provides that if 3. That the violence is intentionally exerted.
the fetus had an intra-uterine life of less than 4. That as a result of the violence that fetus
seven months, it must survive at least 24 hours dies, either in the womb or after having
after the umbilical cord is cut for it to be been expelled therefrom.
considered born.
Notes:
Illustration:
* Unintentional abortion requires physical
A mother delivered an offspring which had an violence inflicted deliberately and voluntarily by a
intra-uterine life of seven months. Before the third person upon the person of the pregnant
umbilical cord is cut, the child was killed. woman. Mere intimidation is not enough unless
the degree of intimidation already approximates
If it could be shown that had the umbilical cord violence.
been cut, that child, if not killed, would have
survived beyond 24 hours, the crime is * If the pregnant woman aborted because of
infanticide because that conceived child is intimidation, the crime committed is not
already considered born. unintentional abortion because there is no
violence; the crime committed is light threats.
If it could be shown that the child, if not killed,
would not have survived beyond 24 hours, the * If the pregnant woman was killed by violence by
crime is abortion because what was killed was a her husband, the crime committed is the complex
fetus only. crime of parricide with unlawful abortion.

> In abortion, the concealment of dishonor as a * While there is no intention on the part of the
motive of the mother to commit the abortion upon accused to cause an abortion, nonetheless, the
herself is mitigating. It will also mitigate the violence that he employs on the pregnant woman
liability of the maternal grandparent of the victim must be intentional. In other words, only the
– the mother of the pregnant woman – if the abortion is unintended.
abortion was done with the consent of the
pregnant woman. * Unintentional abortion can also be committed
through negligence
> If the abortion was done by the mother of the
pregnant woman without the consent of the * Unintentional abortion may be committed
woman herself, even if it was done to conceal through negligence as it is enough that the use of
dishonor, that circumstance will not mitigate her violence be voluntary.
criminal liability.
Illustration:
But if those who performed the abortion are the
parents of the pregnant woman, or either of them, A quarrel ensued between A, husband, and B,
and the pregnant woman consented for the wife. A became so angry that he struck B, who
purpose of concealing her dishonor, the penalty is was then pregnant, with a soft drink bottle on the
the same as that imposed upon the woman who hip. Abortion resulted and B died.
practiced the abortion upon herself .
* Take note that while unintentional abortion
> Frustrated abortion is committed if the fetus appears to be a crime that should be committed
that is expelled is viable and, therefore, not dead with deliberate intent because of the requirement
as abortion did not result despite the that the violence employed on the victim must be
employment of adequate and sufficient means to intentional, nevertheless, if the circumstances of
make the pregnant woman abort. If the means the case justifies the application of the other
are not sufficient or adequate, the crime would be means of committing a felony (like culpa), then
an impossible crime of abortion. In consummated the same should be applied but the penalty will
abortion, the fetus must be dead. not be the penalty provided under Article 257.
Instead, the offender shall be subject to the assistance and not the person trying to
penalty prescribed for simple or reckless commit suicide.
imprudence under Article 365.
2. If the abortive drug used in
* The accused can only be held liable if he knew abortion is a prohibited drug or regulated drug
that the woman was pregnant under Presidential Decree No. 6425 (The
- DEBATABLE Dangerous Drugs Act of 1972), as amended, what
are the crimes committed?
In US v. Jeffry, 15 Phil. 391, the Supreme
Court said that knowledge of pregnancy of the The crimes committed are (1) intentional
offended party is not necessary. In People v. abortion; and (2) violation of the Dangerous
Carnaso, decided on April 7, 1964, however, Drugs Act of 1972.
the Supreme Court held that knowledge of
pregnancy is required in unintentional abortion.

Criticism: Article 258

ABORTION PRACTICED BY THE WOMAN
Under Article 4, paragraph 1 of the Revised Penal HERSELF OR BY HER PARENTS
Code, any person committing a felony is criminally
liable for all the direct, natural, and logical ELEMENTS :
consequences of his felonious acts although it may 1. That there is a pregnant woman who has
be different from that which is intended. The act suffered an abortion.
of employing violence or physical force upon the
woman is already a felony. It is not material if 2. That the abortion is intended.
offender knew about the woman being pregnant or
not. 3. That the abortion is caused by –

If the act of violence is not felonious, that is, act a. the pregnant woman herself
of self-defense, and there is no knowledge of the
woman’s pregnancy, there is no liability. If the b. any other person, with her
act of violence is not felonious, but there is consent, or
knowledge of the woman’s pregnancy, the
offender is liable for unintentional abortion. c. any of her parents, with her
consent for the purpose of
Illustration: concealing her dishonor.

The act of pushing another causing her to fall is a Notes:

felonious act and could result in physical * Liability of the pregnant woman is mitigated if
injuries. Correspondingly, if not only physical the purpose is to conceal her dishonor. However,
injuries were sustained but abortion also there is no Mitigation for the parents of the
resulted, the felonious act of pushing is the pregnant women even if their purpose is to
proximate cause of the unintentional abortion. conceal their daughter’s dishonor

* If there is no intention to cause abortion and * In infanticide, parents can avail of the
neither was violence exerted, arts 256 and 257 mitigating circumstance of concealing the
does not apply dishonor of their daughter. This is not so for art
258
Questions & Answers
Article 259
1. A pregnant woman decided to ABORTION PRACTICED BY A PHYSICIAN OR
commit suicide. She jumped out of a window of a MIDWIFE AND DISPENSING OF ABORTIVES
building but she landed on a passerby. She did ELEMENTS:
not die but an abortion followed. Is she liable for 1. That there is a pregnant woman who has
unintentional abortion? suffered an abortion.
2. That the abortion is intended.
No. What is contemplated in unintentional 3. That the offender, who must be a
abortion is that the force or violence must physician or midwife, causes or assists in
come from another. If it was the woman causing the abortion.
doing the violence upon herself, it must be to 4. That said physician or midwife takes
bring about an abortion, and therefore, the advantage of his or her scientific
crime will be intentional abortion. In this knowledge or skill.
case, where the woman tried to commit
suicide, the act of trying to commit suicide is Notes:
not a felony under the Revised Penal Code. * It is not necessary that the pharmacist knew
The one penalized in suicide is the one giving that the abortive would be used to cause
abortion. What is punished is the act of or more seconds of lawful age on each side, who
dispensing an abortive without the proper make the selection of arms and fix all the other
prescription. It is not necessary that the abortive conditions of the fight
be actually used
* If death results, the penalty is the same as that
* If the pharmacist knew that the abortive would for homicide
be used to cause abortion and abortion results,
he is liable as an accomplice * While the agreement is to fight to the death, the
law will disregard the “intent to kill,” if only
* If the abortion is produced by a physician to physical injuries is inflicted. The crime will not be
save the life of the mother, there is no liability. classified as attempted or frustrated homicide.
This is known as a therapeutic abortion. But
abortion without medical necessity to warrant it * If the accused and the deceased, after a verbal
is punishable even with the consent of the heated argument in a bar, left the place at the
woman or her husband. same time and pursuant to their agreement, went
to the plaza to fight each other to death with
Illustration: knives which they bought on the way, the facts
do not constitute the crime of dueling since there
A woman who is pregnant got sick. The doctor were no seconds who fixed the conditions of the
administered a medicine which resulted in fight in a more or less formal manner. If one was
Abortion. The crime committed was killed, the crime committed would be Homicide.
unintentional abortion through negligence or
imprudence. * There is no such crime nowadays because
people hit each other even without entering into
any pre-conceived agreement. This is an obsolete
provision.
Question & Answer

What is the liability of a physician who Article 261

aborts the fetus to save the life of the mother? CHALLENGING TO A DUEL
Acts punishable:
None. This is a case of therapeutic 1. Challenging another to a duel
abortion which is done out of a state of necessity.
Therefore, the requisites under Article 11, 2. Inciting another to give or accept a
paragraph 4, of the Revised Penal Code must be challenge to a duel
present. There must be no other practical or less
harmful means of saving the life of the mother to 3. Scoffing at or decrying another
make the killing justified. publicly for having refused to accept a
challenge to fight a duel
Article 260 Persons liable:
RESPONSIBILITY OF PARTICIPANTS IN A 1. Challenger
DUEL 2. Instigators
Acts punished:
1. Killing one’s adversary in a duel * If the challenge is only to fight, without the
challenger having in mind a formal combat to be
2. Inflicting upon the adversary serious agreed upon with the assistance of seconds as
physical injuries contemplated under the law, the crime
committed will only be grave or light threat as the
3. Making a combat although no case may be.
physical injuries have been inflicted
Illustration:
Persons liable: If one challenges another to a duel by shouting
1. Principals – person who killed or “Come down, Olympia, let us measure your
inflicted physical injuries upon his adversary, prowess. We will see whose intestines will come
or both combatants in any other cases out. You are a coward if you do not come down”,
the crime of challenging to a duel is not committed.
2. Accomplices – as seconds What is committed is the crime of light threats
under Article 285, paragraph 1 of the Revised
* The person who killed or injured his adversary. Penal Code.
If both survive, both will be liable for the crime of PHYSICAL INJURIES
duel as principals by direct participation. The
seconds will be held liable as accomplices. Article 262
MUTILATION
Notes: Kinds of Mutilation
DUEL: a formal or regular combat previously
concerted between 2 parties in the presence of 2
 1. Intentionally mutilating another by depriving a. loses the use of speech or the power to
him, totally or partially, of some essential hear or to smell, loses an eye, a hand, foot,
organ for reproduction arm or leg
b. loses the use of any such member
2. Intentionally making another mutilation, i.e. c. becomes incapacitated for the work in
lopping, clipping off any part of the body of which he had been habitually engaged
the offended party, other than the essential
organ for reproduction, to deprive him of that 3. Injured person –
part of the body
Elements: a. becomes deformed
1. There be a castration i.e. mutilation
of organs necessary for generation b. loses any other member of his body

2. Mutilation is caused purposely and c. loses the use thereof

deliberately
d. becomes ill or incapacitated for the
Notes: performance of the work in which he had
been habitually engaged in for more than 90
MUTILATION is the lopping or clipping off of days
some part of the body.
4. Injured person becomes ill or
* The intent to deliberately cut off the particular incapacitated for labor for more than
part of the body that was removed from the 30 days (but not more than 90 days)
offended party must be established. If there is no
intent to deprive victim of particular part of body, Notes:
the crime is only serious physical injury.
* The crime of physical injuries is a crime of
* The common mistake is to associate this with result because under our laws the crime of
the reproductive organs only. Mutilation includes physical injuries is based on the gravity of the
any part of the human body that is not susceptible injury sustained. So this crime is always
to grow again. consummated.

* If what was cut off was a reproductive organ, * The reason why there is no attempted or
the penalty is much higher than that for frustrated physical injuries is because the crime
homicide. of physical injuries is determined on the gravity
of the injury. As long as the injury is not there,
* This cannot be committed through criminal there can be no attempted or frustrated stage
negligence. thereof.

* In the first kind of mutilation, the castration * Serious physical injuries may be committed
must be made purposely. Otherwise, it will be through reckless imprudence or simple
considered as mutilation of the second kind imprudence

MAYHEM: refers to any other intentional * There must be no intent to kill

mutilation
IMPOTENT should include inability to copulate
Article 263 and sterility
SERIOUS PHYSICAL INJURIES
How Committed BLINDNESS requires lost of vision in both eyes.
1. Wounding Mere weakness in vision is not contemplated
2. Beating
3. Assaulting Loss of power to hear must involve both ears.
4. Administering injurious substances Otherwise, it will be considered as serious
* In one case, the accused, while conversing with physical injuries under par 3
the offended party, drew the latter’s bolo from its
scabbard. The offended party caught hold of the Loss of use of hand or incapacity of usual
edge of the blade of his bolo and wounded work in par 2 must be permanent
himself. It was held that since the accused did
not wound, beat or assault the offended party, he * Par 2 refers to principal members of the body.
can not be guilty of serious physical injuries. Par 3 on the other hand, covers any other
member which is not a principal part of the body.
What are serious physical injuries: In this respect, a front tooth is considered as a
1. Injured person becomes insane, member of the body, other than a principal
imbecile, impotent or blind member
2. Injured person –
DEFORMITY: means physical ugliness, of one to nine days if slight physical injuries;
permanent and definite abnormality. Not curable or 10 days to 20 days if less serious physical
by natural means or by nature. It must be injuries. Consider the duration of healing and
conspicuous and visible. Thus, if the scar is treatment.
usually covered by a dress, it would not be
conspicuous and visible The significant part here is between slight
physical injuries and less serious physical
* The loss of 3 incisors is a visible deformity. Loss injuries. You will consider not only the
of one incisor is not. However, loss of one tooth healing duration of the injury but also the
which impaired appearance is a deformity medical attendance required to treat the
injury. So the healing duration may be one to
* Deformity by loss of teeth refers to injury which nine days, but if the medical treatment
cannot be impaired by the action of the nature continues beyond nine days, the physical
injuries would already qualify as less serious
* Loss of both outer ears constitutes deformity physical injuries. The medical treatment may
and also loss of the power to hear. Meanwhile, have lasted for nine days, but if the offended
loss of the lobule of the ear is only a deformity party is still incapacitated for labor beyond
nine days, the physical injuries are already
* Loss of the index and middle fingers is either a considered less serious physical injuries.
deformity or loss of a member, not a principal
one of his body or use of the same (2) Between less serious physical injuries and
serious physical injuries, you do not consider
* Loss of the power to hear in the right ear is the period of medical treatment. You only
considered as merely loss of use of some other consider the period when the offended party is
part of the body rendered incapacitated for labor.

* If the injury would require medical attendance If the offended party is incapacitated to work for
for more than 30 days, the illness of the offended less than 30 days, even though the treatment
party may be considered as lasting more than 30 continued beyond 30 days, the physical
days. The fact that there was medical attendance injuries are only considered less serious
for that period of time shows that the injuries because for purposes of classifying the
were not cured for that length of time physical injuries as serious, you do not
* Under par 4, all that is required is illness or consider the period of medical treatment. You
incapacity, not medical attendance only consider the period of incapacity from
work.
> In determining incapacity, the injured party
must have an avocation at the time of the injury. (3) When the injury created a deformity upon the
Work: includes studies or preparation for a offended party, you disregard the healing
profession duration or the period of medical treatment
involved. At once, it is considered serious
* When the category of the offense of serious physical injuries.
physical injuries depends on the period of the
illness or incapacity for labor, there must be So even though the deformity may not have
evidence of the length of that period. Otherwise, incapacitated the offended party from work, or
the offense will only be considered as slight even though the medical treatment did not go
physical injuries beyond nine days, that deformity will bring
about the crime of serious physical injuries.
* There is no incapacity if the injured party could
still engage in his work although less effectively Deformity requires the concurrence of the
than before following conditions:

* Serious physical injuries is qualified when (1) The injury must produce
the crime is committed against the same persons ugliness;
enumerated in the article on parricide or when it
is attended by any of the circumstances defining (2) It must be visible;
the crime of murder. However, serious physical
injuries resulting from excessive chastisement by (3) The ugliness will not disappear
parents is not qualified serious physical injuries through natural healing process.

Illustration:
Ortega Notes:
Loss of molar tooth – This is not deformity as it
Classification of physical injuries: is not visible.

(1) Between slight physical injuries and less Loss of permanent front tooth – This is
serious physical injuries, you have a duration deformity as it is visible and permanent.
 Loss of milk front tooth – This is not deformity
as it is visible but will be naturally replaced. Organizations include any club or AFP, PNP, PMA
or officer or cadet corps of the CMT or CAT.
Question & Answer
Section 2 requires a written notice to school
authorities from the head of the organization
The offender threw acid on the face of the seven days prior to the rites and should not
offended party. Were it not for timely medical exceed three days in duration.
attention, a deformity would have been produced
on the face of the victim. After the plastic surgery, Section 3 requires supervision by head of the
the offended party was more handsome than school or the organization of the rites.
before the injury. What crime was committed? In
what stage was it committed? Section 4 qualifies the crime if rape, sodomy or
mutilation results therefrom, if the person
The crime is serious physical injuries becomes insane, an imbecile, or impotent or
because the problem itself states that the blind because of such, if the person loses the use
injury would have produced a deformity. The of speech or the power to hear or smell or an eye,
fact that the plastic surgery removed the a foot, an arm or a leg, or the use of any such
deformity is immaterial because in law what member or any of the serious physical injuries or
is considered is not the artificial treatment but the less serious physical injuries. Also if the
the natural healing process. victim is below 12, or becomes incapacitated for
the work he habitually engages in for 30, 10, 1-9
In a case decided by the Supreme Court, days.
accused was charged with serious physical
injuries because the injuries produced a scar. It holds the parents, school authorities who
He was convicted under Article 263 (4). He consented or who had actual knowledge if they
appealed because, in the course of the trial, did nothing to prevent it, officers and members
the scar disappeared. It was held that who planned, knowingly cooperated or were
accused can not be convicted of serious present, present alumni of the organization,
physical injuries. He is liable only for slight owner of the place where such occurred liable.
physical injuries because the victim was not
incapacitated, and there was no evidence Makes presence a prima facie presumption of guilt
that the medical treatment lasted for more for such.
than nine days.
Article 264
Serious physical injuries is punished with ADMINISTERING INJURIOUS SUBSTANCES OR
higher penalties in the following BEVERAGES
cases: ELEMENTS:
1. That the offender inflicted upon another
(1) If it is committed against any of the person any serious physical injury
persons referred to in the crime of 2. That it was done knowingly
parricide under Article 246; administering to him any injurious
substances or beverages or by taking
(2) If any of the circumstances qualifying advantage of his weakness of mind of
murder attended its commission. credulity
3. He had no intent to kill
Thus, a father who inflicts serious physical
injuries upon his son will be liable for qualified Notes:
serious physical injuries.
* The article under consideration does not deal
with a crime. It refers to means of committing
Republic Act No. 8049 (THE ANTI-HAZING serious physical injuries.
LAW) * It is frustrated murder when there is intent to
kill
Hazing -- This is any initiation rite or practice * Administering means introducing into the
which is a prerequisite for admission into body the substance, thus throwing of the acid in
membership in a fraternity or sorority or any the face is not contemplated
organization which places the neophyte or
applicant in some embarrassing or humiliating Article 265
situations or otherwise subjecting him to physical LESS SERIOUS PHYSICAL INJURIES
or psychological suffering of injury. These do not
include any physical, mental, psychological ELEMENTS:
testing and training procedure and practice to 1. That the offended party is incapacitated
determine and enhance the physical and for labor for 10 days or more (but not
psychological fitness of the prospective regular more than 30 days), or needs medical
members of the below. attendance for the same period of time
 * This involves even ill-treatment where there is
2. That the physical injuries must not be no sign of injury requiring medical treatment.
those described in the preceding articles
* Slapping the offended party is a form of ill-
Notes: treatment which is a form of slight physical
injuries.
Circumstances qualifying the offense:
a. when there is manifest intent to insult or > But if the slapping is done to cast dishonor
offend the injured person upon the person slapped, the crime is slander by
deed. If the slapping was done without the
b. when there are circumstances adding intention of casting dishonor, or to humiliate or
ignominy to the offense embarrass the offended party out of a quarrel or
anger, the crime is still ill-treatment or slight
c. when the victim is either the offender’s physical injuries.
parents, ascendants, guardians, curators
or teachers * The crime is slight physical injury if there is no
proof as to the period of the offended party’s
d. when the victim is a person of rank or incapacity for labor or of the required medical
person in authority, provided the crime is attendance.
not direct assault
Republic Act No. 7610 (Special Protection of
* It falls under this article even if there was no Children against Child Abuse, Exploitation
incapacity but the medical treatment was for 13 and Discrimination Act), in relation to murder,
days mutilation or injuries to a child

* In this article, the offended party is The last paragraph of Article VI of Republic Act
incapacitated from work for ten (10) days or more No. 7610, provides:
but not more than thirty (30) days. If the injury
causes the illness of the victim, the healing “For purposes of this Act, the penalty for the
duration must be more than nine (9) days but not commission of acts punishable under Articles
more than thirty (30) days. 248, 249, 262 (2) and 263 (1) of Act No 3815, as
amended of the Revised Penal Code for the
* Article 265 is an exception to Article 48 in crimes of murder, homicide, other intentional
relation to complex crimes as the latter only mutilation, and serious physical injuries,
takes place in cases where the Revised Penal respectively, shall be reclusion perpetua when
Code has no specific provision penalizing the the victim is under twelve years of age.”
same with a definite, specific penalty. Hence,
there is no complex crime of slander by deed with The provisions of Republic Act No. 7160 modified
less serious physical injuries but only less the provisions of the Revised Penal Code in so far
serious physical injuries if the act which was as the victim of the felonies referred to is under
committed produced the less serious physical 12 years of age. The clear intention is to punish
injuries with the manifest intent to insult or the said crimes with a higher penalty when the
offend the offended party, or under victim is a child of tender age. Incidentally, the
circumstances adding ignominy to the offense. reference to Article 249 of the Code which defines
and penalizes the crime of homicide were the
Article 266 victim is under 12 years old is an error. Killing a
SLIGHT PHYSICAL INJURIES child under 12 is murder, not homicide, because
the victim is under no position to defend himself
3 Kinds: as held in the case of People v. Ganohon, 196
SCRA 431.
1. That which incapacitated the
offended party for labor from 1-9 For murder, the penalty provided by the Code, as
days or required medical attendance amended by Republic Act No. 7659, is reclusion
during the same period perpetua to death – higher than what Republic
Act no. 7610 provides. Accordingly, insofar as
2. That which did not prevent the the crime is murder, Article 248 of the Code, as
offended party from engaging in his amended, shall govern even if the victim was
habitual work or which did not under 12 years of age. It is only in respect of the
require medical attendance (ex. crimes of intentional mutilation in paragraph 2 of
Black-eye) Article 262 and of serious physical injuries in
paragraph 1 of Article 263 of the Code that the
3. Ill-treatment of another by deed quoted provision of Republic Act No. 7160 may
without causing any injury (ex. be applied for the higher penalty when the victim
slapping but without causing is under 12 years old.
dishonor)
 c. under the custody of the police or military
authorities or any law enforcement or penal
institution
RAPE
d. committed in full view of the spouse, parent
ART 266-A or any of the children or other relatives
RAPE within the 3rd degree of consanguinity
The Anti-Rape Law of 1997 (RA 8353) now
classified the crime of rape as Crime Against e. victim is a religious engaged in legitimate
Persons incorporated into Title 8 of the RPC religious vocation or calling and is personally
to be known as Chapter 3 known to be such by the offender before or at
the time of the commission of the crime
ELEMENTS:
Rape is committed f. a child below 7 years old
1. By a man who have carnal knowledge of a
woman under any of the following g. offender knows he is afflicted with HIV or
circumstances: AIDS or any other sexually transmissible
disease and the virus is transmitted to the
a. through force, threat or intimidation victim
h. offender; member of the AFP, or para-
b. when the offended party is deprived of military units thereof, or the PNP, or any law
reason or otherwise unconscious enforcement agency or penal institution,
when the offender took advantage of his
c. by means of fraudulent machination or position to facilitate the commission of the
grave abuse of authority crime

d. when the offended party is under 12 i. victim suffered permanent physical

years of age or is demented, even though mutilation or disability
none of the circumstances mentioned above
be present j. the offender knew of the pregnancy of the
offended party at the time of the commission
2. By any person who, under any of the of the crime; and
circumstances mentioned in par 1
hereof, shall commit an act of sexual k. when the offender knew of the mental
assault by inserting disability, emotional disorder and/or
physical handicap or the offended party at
a. his penis into another person’s mouth or the time of the commission of the crime
anal orifice, or
Rape committed under par 2 is punishable by:
b. any instrument or object, into the genital 1. prision mayor
or anal orifice of another person
2. prision mayor to reclusion temporal
Rape committed under par 1 is punishable by: a. use of deadly weapon or
1. reclusion perpetua
b. by two or more persons
2. reclusion perpetua to DEATH when
a. victim became insane by reason or on the 3. reclusion temporal – when the victim has
occasion of rape become insane

b. the rape is attempted and a homicide is 4. reclusion temporal to reclusion pepetua –

committed by reason or on the occasion rape is attempted and homicide is committed
thereof
5. reclusion perpetua – homicide is committed
3. DEATH when by reason or on occasion of rape
a. homicide is committed
6. reclusion temporal – committed with any of
b. victim under 18 years and offender is: the 10 aggravating circumstances mentioned
i. parent above
ii. ascendant
iii. step-parent Notes:
iv. guardian
v. relative by consanguinity or affinity with the DIVIDING AGE IN RAPE:
3rd civil degree or a. less than 7 yrs old, mandatory death
vi. common law spouse of parent of victim b. less than 12 yrs old, statutory rape
 c. less than 18 yrs old and there is there is indication of any amount of resistance as
relationship (e.g. parent etc); mandatory to make it rape.
death
Incestuous rape was coined in Supreme Court
* Because of this amendment which reclassified decisions. It refers to rape committed by an
rape as a crime against persons, an impossible ascendant of the offended woman. In such cases,
crime may now be committed in case of rape; that the force and intimidation need not be of such
is, if there is inherent impossibility of its nature as would be required in rape cases had
accomplishment or on account of the the accused been a stranger. Conversely, the
employment of inadequate or ineffectual means. Supreme Court expected that if the offender is
not known to the woman, it is necessary that
* The case of People vs. Orita (G.R. No. 88724, there be evidence of affirmative resistance put up
April 3, 1990), laid a new doctrine in Philippine by the offended woman. Mere “no, no” is not
penal law insofar as the crime of rape is enough if the offender is a stranger, although if
concerned, as it finally did away with frustrated the rape is incestuous, this is enough.
rape and allowed only attempted rape and
consummated rape to remain in our statute books. The new rape law also requires that there be a
physical overt act manifesting resistance, if the
* The act of “touching” should be understood as offended party was in a situation where he or she
inherently part of the entry of the penis into the is incapable of giving valid consent, this is
labia of the female organ and not the mere admissible in evidence to show that carnal
touching alone of the mons pubis or the knowledge was against his or her will.
pudendum. Jurisprudence dictates that the labia
majora (or he outer lips of the female organ) must When the victim is below 12 years old, mere
be entered for rape to be consummated, and not sexual intercourse with her is already rape. Even
merely for the penis to stroke the surface of the if it was she who wanted the sexual intercourse,
female organ. Thus, grazing of the surface of the the crime will be rape. This is referred to as
female organ or touching the mons pubis of the statutory rape.
pudendum is not sufficient to constitute rape. ( Pp
vs. Campuhan) If the victim however is exactly twelve (12) years
old (she was raped on her birthday) or more, and
Classification of rape there is consent, there is no rape. However,
!) Traditional concept under Article 335 – Republic Act No. 7610, Sec. 5 (b) provides that:
carnal knowledge with a woman against Even if the victim is over twelve (12) year old and
her will. The offended party is always a the carnal act was with her consent as long as
woman and the offender is always a man. she falls under the classification of a child
exploited in prostitution and other sexual abuse,
2) Sexual assault - committed with an the crime is rape.
instrument or an object or use of the
penis with penetration of mouth or anal In other cases, there must be force, intimidation,
orifice. The offended party or the or violence proven to have been exerted to bring
offender can either be man or woman, about carnal knowledge or the woman must have
that is, if a woman or a man uses an been deprived of reason or otherwise unconscious.
instrument on anal orifice of male, she or
he can be liable for rape. It is not necessary that the force or intimidation
employed be so great or of such character as
Since rape is not a private crime anymore, it can could not be resisted – it is only necessary that it
be prosecuted even if the woman does not file a be sufficient to consummate the purpose which
complaint. the accused had in mind. (People vs. Canada,
253 SCRA 277).
If carnal knowledge was made possible because
of fraudulent machinations and grave abuse of Carnal knowledge with a woman who is asleep
authority, the crime is rape. This absorbs the constitutes Rape since she was either deprived of
crime of qualified and simple seduction when no reason or otherwise unconscious at that time.
force or violence was used, but the offender (People vs. Caballero, 61 Phil. 900).
abused his authority to rape the victim.
Sexual intercourse with an insane, deranged or
Under Article 266-C, the offended woman may mentally deficient, feeble-minded or idiotic
pardon the offender through a subsequent valid woman is Rape pure and simple. The deprivation
marriage, the effect of which would be the of reason contemplated by law need not be
extinction of the offender’s liability. Similarly, the complete; mental abnormality or deficiency is
legal husband may be pardoned by forgiveness of sufficient.
the wife provided that the marriage is not void ab
initio. Obviously, under the new law, the Where the victim is over 12 years old, it must be
husband may be liable for rape if his wife does shown that the carnal knowledge with her was
not want to have sex with him. It is enough that obtained against her will. It is necessary that
there be evidence of some resistance put up by not make any effort to remove her underwear.
the offended woman. It is not, however, Instead, he removed his own underwear and
necessary that the offended party should exert all placed himself on top of the woman and started
her efforts to prevent the carnal intercourse. It is performing sexual movements. Thereafter, when
enough that from her resistance, it would appear he was finished, he stood up and left. The crime
that the carnal intercourse is against her will. committed is only acts of lasciviousness and not
attempted rape. The fact that he did not remove
Mere initial resistance, which does not indicate the underwear of the victim indicates that he
refusal on the part of the offended party to the does not have a real intention to effect a
sexual intercourse, will not be enough to bring penetration. It was only to satisfy a lewd design.
about the crime of rape.
Note that it has been held that in the crime of The new law, R.A. 8353, added new circumstance
rape, conviction does not require medico-legal – that is, when carnal knowledge was had by
finding of any penetration on the part of the means of fraudulent machinations or grave abuse
woman. A medico-legal certificate is not of authority. It would seem that if a woman of
necessary or indispensable to convict the accused majority age had sexual intercourse with a man
of the crime of rape. through the latter’s scheme of pretending to
marry her which is the condition upon which the
It has also been held that although the offended woman agreed to have sex with him,
woman who is the victim of the rape failed to manipulating a sham marriage, the man would
adduce evidence regarding the damages to her by be guilty of Rape under this Section. So also, a
reason of the rape, the court may take judicial prostitute who willingly had sexual congress with
notice that there is such damage in crimes a man upon the latter’s assurance that she would
against chastity. The standard amount given be paid handsomely, may be guilty of Rape if
now is P 50,000.00, with or without evidence of later on he refuses to pay the said amount.
any moral damage.
A person in authority who maneuvered a
An accused may be convicted of rape on the sole scheme where a woman landed in jail, and who
testimony of the offended woman. It does not upon promise of being released after having sex
require that testimony be corroborated before a with the officer, willingly consented to the sexual
conviction may stand. This is particularly true if act, may also be found guilty of Rape under this
the commission of the rape is such that the new section.
narration of the offended woman would lead to no
other conclusion except that the rape was IN RAPE CASES, COURT MUST ALWAYS BE
committed. GUIDED BY THE FOLLOWING PRINCIPLES:

Illustration: 1. An accusation of rape can be made with

Daughter accuses her own father of having raped facility; it is difficult to prove, but more
her. difficult for the person accused, though
innocent, to disprove;
Allegation of several accused that the woman
consented to their sexual intercourse with her is 2. In view of the intrinsic nature of the crime
a proposition which is revolting to reason that a where only two persons are usually involved,
woman would allow more than one man to have the testimony of the complainant must be
sexual intercourse with her in the presence of the scrutinized with extreme caution; and
others.
3. The evidence for the prosecution must stand
It has also been ruled that rape can be or fall on its own merits, and cannot be
committed in a standing position because allowed to draw strength from the weakness
complete penetration is not necessary. The of the evidence for the defense. (People vs.
slightest penetration – contact with the labia – will Ricafort)
consummate the rape.
TITLE NINE
On the other hand, as long as there is an intent to CRIMES AGAINST PERSONAL LIBERTY AND
effect sexual cohesion, although unsuccessful, the SECURITY
crime becomes attempted rape. However, if that
intention is not proven, the offender can only be Crimes against liberty
convicted of acts of lasciviousness. 1. Kidnapping and serious illegal detention
(Art. 267);
The main distinction between the crime of 2. Slight illegal detention (Art. 268);
attempted rape and acts of lasciviousness is the 3. Unlawful arrest (Art. 269);
intent to lie with the offended woman. 4. Kidnapping and failure to return a minor
(Art. 270);
In a case where the accused jumped upon a 5. Inducing a minor to abandon his home
woman and threw her to the ground, although (Art. 271);
the accused raised her skirts, the accused did 6. Slavery (Art. 272);
7. Exploitation of child labor (Art. 273);
8. Services rendered under compulsion in b. When the victim is killed or dies as a
payment of debts (Art. 274). consequence of the detention or is raped
or is subjected to torture or
Crimes against security dehumanizing acts
1. Abandonment of persons in danger and * The essence of the offense is the actual
abandonment of one's own victim (Art. deprivation of the victim’s liberty coupled with
275); the intent of the accused to effect it. There must
2. Abandoning a minor (Art. 276); be indubitable proof that the actual intent of the
3. Abandonment of minor by person malefactor was to deprive the offended party of
entrusted with his custody; indifference liberty. The restraint however need not be
of parents (Art. 277); permanent. (People vs. Godoy, 250 SCRA 676).
4. Exploitation of minors (Art. 278);
5. Trespass to dwelling (Art. 280); Ortega Notes:
6. Other forms of trespass (Art. 281);
7. Grave threats (Art. 282); When a public officer conspires with a private
8. Light threats (Art. 283); person in the commission of any of the crimes
9. Other light threats (Art. 285); under Title IX, the crime is also one committed
10. Grave coercions (Art. 286); under this title and not under Title II.
11. Light coercions (Art. 287);
12. Other similar coercions (Art. 288); Illustration:
13. Formation, maintenance and prohibition
of combination of capital or labor If a private person commits the crime of
through violence or threats (Art. 289); kidnapping or serious illegal detention, even
14. Discovering secrets through seizure of though a public officer conspires therein, the
correspondence (Art. 290); crime cannot be arbitrary detention. As far as
15. Revealing secrets with abus of office (Art. that public officer is concerned, the crime is also
291); illegal detention.
16. Revealing of industrial secrets (Art. 292).
In the actual essence of the crime, when one says
Article 267 kidnapping, this connotes the idea of
KIDNAPPING AND SERIOUS ILLEGAL transporting the offended party from one place to
DETENTION another. When you think illegal detention, it
connotes the idea that one is restrained of his
ELEMENTS: liberty without necessarily transporting him from
1. Offender is a private individual one place to another.
2. He kidnaps or detains another, or in
any other manner deprives the latter of The crime of kidnapping is committed if the
his liberty purpose of the offender is to extort ransom either
3. The act of detention or kidnapping from the victim or from any other person. But if a
must be illegal person is transported not for ransom, the crime
4. That in the commission of the offense, can be illegal detention. Usually, the offended
any of the following circumstances are party is brought to a place other than his own, to
present (becomes serious) detain him there.

a. that the kidnapping/detention lasts for more When one thinks of kidnapping, it is not only
than 3 days that of transporting one person from one place to
another. One also has to think of the criminal
b. that it is committed simulating public intent.
authority
Forcible abduction -- If a woman is transported
c. that any serious physical injuries are from one place to another by virtue of restraining
inflicted upon the person kidnapped or her of her liberty, and that act is coupled with
detained or threats to kill him are made, or lewd designs.

d. that the person kidnapped or detained is a Serious illegal detention – If a woman is

minor (except if parent is the offender), female transported just to restrain her of her liberty.
or a public officer There is no lewd design or lewd intent.

Note: When death penalty is imposed: Grave coercion – If a woman is carried away just
a. If kidnapping is committed for the to break her will, to compel her to agree to the
purpose of extorting ransom either from demand or request by the offender.
the victim or from any other person even
if none of the aforementioned are present In a decided case, a suitor, who cannot get a
in the commission of the offense (even if favorable reply from a woman, invited the woman
none of the circumstances are present) to ride with him, purportedly to take home the
woman from class. But while the woman is in (1) Illegal detention becomes serious when it
his car, he drove the woman to a far place and shall have lasted for more than three
told the woman to marry him. On the way, the days, instead of five days as originally
offender had repeatedly touched the private parts provided;
of the woman. It was held that the act of the
offender of touching the private parts of the (2) In paragraph 4, if the person kidnapped
woman could not be considered as lewd designs or detained was a minor and the offender
because he was willing to marry the offended was anyone of the parents, the latter has
party. The Supreme Court ruled that when it is a been expressly excluded from the
suitor who could possibly marry the woman, provision. The liability of the parent is
merely kissing the woman or touching her private provided for in the last paragraph of
parts to “compel” her to agree to the marriage, Article 271;
such cannot be characterized as lewd design. It is
considered merely as the “passion of a lover”. (3) A paragraph was added to Article 267,
But if the man is already married, you cannot which states:
consider that as legitimate but immoral and
definitely amounts to lewd design. When the victim is killed or dies as a
consequence of the detention or is
If a woman is carried against her will but without raped, or is subjected to torture, or
lewd design on the part of the offender, the crime dehumanizing acts, the maximum
is grave coercion. penalty shall be imposed.

Illustration: This amendment brings about a composite

crime of kidnapping with homicide when it
Tom Cruz invited Nicole Chizmacks for a snack. is the victim of the kidnapping who was
They drove along Roxas Boulevard, along the killed, or dies as a consequence of the
Coastal Road and to Cavite. The woman was detention and, thus, only one penalty is
already crying and wanted to be brought home. imposed which is death.
Tom imposed the condition that Nicole should
first marry him. Nicole found this as, simply, a Article 48, on complex crimes, does not govern in
mission impossible. The crime committed in this this case. But Article 48 will govern if any other
case is grave coercion. But if after they drove to person is killed aside, because the provision
Cavite, the suitor placed the woman in a house specifically refers to “victim”. Accordingly, the
and would not let her out until she agrees to rulings in cases of People v. Parulan, People v.
marry him, the crime would be serious illegal Ging Sam, and other similar cases where the
detention. accused were convicted for the complex crimes of
kidnapping with murder have become academic.
If the victim is a woman or a public officer, the
detention is always serious – no matter how short In the composite crime of kidnapping with
the period of detention is. homicide, the term “homicide” is used in the
generic sense and, thus, covers all forms of
Distinction between illegal detention and killing whether in the nature of murder or
arbitrary detention otherwise. It does not matter whether the
purpose of the kidnapping was to kill the victim
Illegal detention is committed by a private person or not, as long as the victim was killed, or died as
who kidnaps, detains, or otherwise deprives a consequence of the kidnapping or detention.
another of his liberty. There is no more separate crime of kidnapping
and murder if the victim was kidnapped not for
Arbitrary detention is committed by a public the purpose of killing her.
officer who detains a person without legal
grounds. If the victim was raped, this brings about the
composite crime of kidnapping with rape. Being a
The penalty for kidnapping is higher than for composite crime, not a complex crime, the same
forcible abduction. This is wrong because if the is regarded as a single indivisible offense as in
offender knew about this, he would perform fact the law punishes such acts with only a single
lascivious acts upon the woman and be charged penalty. In a way, the amendment depreciated
only for forcible abduction instead of kidnapping the seriousness of the rape because no matter
or illegal detention. He thereby benefits from this how many times the victim was raped, there will
absurdity, which arose when Congress amended only be one kidnapping with rape. This would not
Article 267, increasing the penalty thereof, be the consequence if rape were a separate crime
without amending Article 342 on forcible from kidnapping because each act of rape would
abduction. be a distinct count.

Article 267 has been modified by Republic Act However for the crime to be kidnapping with rape,
No. 7659 in the following respects: the offender should not have taken the victim with
lewd designs as otherwise the crime would be
forcible abduction; and if the victim was raped, 4. If the seizure of the victim is solely to deprive
the complex crime of forcible abduction with rape him of his liberty, the crime is illegal
would be committed. If the taking was forcible detention.
abduction, and the woman was raped several
times, there would only be one crime of forcible In the penultimate paragraph of Article 267,
abduction with rape, and each of the other rapes there is deprivation of liberty but not for any for
would constitute distinct counts of rape. This the purposes enumerated above. It is for the
was the ruling in the case of People v. Bacalso. purpose of extorting ransom from the victim or
from any other person. The law classifies the
In People v. Lactao, decided on October 29, crime committed by the offender as serious illegal
1993, the Supreme Court stressed that the crime detention even if none of the circumstances to
is serious illegal detention if the purpose was to make it serious is present in the commission of
deprive the offended party of her liberty. And if the crime. In this particular mode of committing
in the course of the illegal detention, the offended the crime of serious illegal detention, demand for
party was raped, a separate crime of rape would ransom is an indispensable element. (People vs.
be committed. This is so because there is no Bustamante, G. R. No. 66427, Dec. 4, 1991)
complex crime of serious illegal detention with
rape since the illegal detention was not a SANDOVAL Notes:
necessary means to the commission of rape. If the victim was not kidnapped or taken away
but was restrained and deprived of his liberty,
In People v. Bernal, 131 SCRA 1, the appellants like in the case of a hostage incident where the
were held guilty of separate crimes of serious accused, who was one of the occupants of the
illegal detention and of multiple rapes. With the house, grabbed a child, poked a knife on the
amendment by Republic Act No. 7659 making latter’s neck, called for media people and
rape a qualifying circumstance in the crime of demanded a vehicle from the authorities which
kidnapping and serious illegal detention, the he could use in escaping, as it turned out that
jurisprudence is superseded to the effect that the there was an unserved arrest warrant against
rape should be a distinct crime. Article 48 on him, the proper charge is Serious Illegal
complex crimes may not apply when serious Detention (without kidnapping anymore) but
illegal detention and rape are committed by the likewise under Article 267 of the Revised Penal
same offender. The offender will be charged for Code.
the composite crime of serious illegal detention
with rape as a single indivisible offense, Where after taking the victim with her car, the
regardless of the number of times that the victim accused called the house of the victim asking for
was raped. ransom but upon going to their safehouse saw
several police cars chasing them, prompting them
Also, when the victim of the kidnapping and to kill their victim inside the car, there were two
serious illegal detention was subjected to torture crime committed – Kidnapping for Ransom and
and sustained physical injuries, a composite Murder, not a complex crime of Kidnapping with
crime of kidnapping with physical injuries is Murder as she was not taken or carried away to
committed. be killed, killing being an afterthought . (People
vs. Evanoria, 209 SCRA 577).
Palattao notes:
When the person is deprived of his liberty or is Article 268
seized and forcibly taken to another place, the SLIGHT ILLEGAL DETENTION
inquiry would, be what is the purpose of the
offender in taking him or her away: ELEMENTS:
1. Offender is a private person
1. If the seizure is only to facilitate the killing of 2. He kidnaps or detains another or in any
the victim the crime committed would either other maner deprives him pof his liberty /
be homicide or murder and the crime of furnished place for the perpetuation of
kidnapping is absorbed. the crime
3. That the act of detention or kidnapping
2. If the seizure or deprivation of liberty is only must be illegal
to compel the victim to perform an act, be it 4. That the crime is committed without the
right or wrong, the crime committed would attendant of any of the circumstances
only be grave coercion. (People vs. Astorga, enumerated in Art 267
283 SCRA 420).
Note: Privileged mitigating circumstances:
3. If the deprivation of liberty is to take away the If the offender:
victim to satisfy the lewd design of the a. voluntarily releases the person so
offender, the crime would only be forcible kidnapped or detained within 3 days
abduction. from the commencement of the detention

b. without having attained the purpose

intended and
 not heard from for six years. Supreme Court
c. before the institution of criminal reversed the trial court ruling that the men
proceedings against him accused were guilty of kidnapping with murder.
The crime is only slight illegal detention under
Ortega Notes: Article 268, aggravated by a band, since none of
the circumstances in Article 267 has been proved
One should know the nature of the illegal beyond a reasonable doubt. The fact that the
detention to know whether the voluntary release victim has been missing for six years raises a
of the offended party will affect the criminal presumption of death, but from this disputable
liability of the offender. presumption of death, it should not be further
presumed that the persons who were last seen
When the offender voluntarily releases the with the absentee is responsible for his
offended party from detention within three days disappearance.
from the time the restraint of liberty began, as
long as the offender has not accomplished his Article 269
purposes, and the release was made before the UNLAWFUL ARREST
criminal prosecution was commenced, this would ELEMENTS:
serve to mitigate the criminal liability of the 1. That the offender arrests or detains
offender, provided that the kidnapping or illegal another person
detention is not serious. 2. That the purpose of the offender is to
deliver him to the proper authorities
If the illegal detention is serious, however, even if 3. That the arrest or detention is not
the offender voluntarily released the offended authorized by law or there is no
party, and such release was within three days reasonable ground therefor
from the time the detention began, even if the
offender has not accomplished his purpose in Notes:
detaining the offended party, and even if there is * Offender is any person, so either a public officer
no criminal prosecution yet, such voluntary or private individual
release will not mitigate the criminal liability of
the offender. * The offender in this article can be a private
individual or public officer. In the latter case, the
One who furnishes the place where the offended offender, being a public officer, has the authority
party is being held generally acts as an to arrest and detain a person, but the arrest is
accomplice. But the criminal liability in connection made without legal grounds. For him to be
with the kidnapping and serious illegal detention, punished under this article, the public officer
as well as the slight illegal detention, is that of the must make the arrest and detention without
principal and not of the accomplice. authority to do so; or without acting in his official
capacity.
The prevailing rule now is Asistio v. Judge,
which provides that voluntary release will only * This felony consists in making an arrest or
mitigate criminal liability if crime was slight detention without legal or reasonable ground for
illegal detention. If serious, it has no effect. the purpose of delivering the offended party to
the proper authorities.
In kidnapping for ransom, voluntary release will
not mitigate the crime. This is because, with the * The offended party may also be detained but
reimposition of the death penalty, this crime is the crime is not illegal detention because the
penalized with the extreme penalty of death. purpose is to prosecute the person arrested. The
detention is only incidental; the primary criminal
What is ransom? It is the money, price or intention of the offender is to charge the offended
consideration paid or demanded for party for a crime he did not actually commit.
redemption of a captured person or
persons, a payment that releases a * Generally, this crime is committed by
person from captivity. incriminating innocent persons by the offender’s
planting evidence to justify the arrest – a complex
The definition of ransom under the Lindberg law crime results, that is, unlawful arrest through
of the U.S. has been adopted in our incriminatory machinations under Article 363.
jurisprudence in People v. Akiran, 18 SCRA
239, 242, such that when a creditor detains a * Refers to warrantless arrests
debtor and releases the latter only upon the * If the arrest is made without a warrant and
payment of the debt, such payment of the debt, under circumstances not allowing a warrantless
which was made a condition for the release is arrest, the crime would be unlawful arrest.
ransom, under this article.
* If the person arrested is not delivered to the
In the case of People v. Roluna, decided March authorities, the private individual making the
29, 1994, witnesses saw a person being taken arrest incurs criminal liability for illegal detention
away with hands tied behind his back and was under Article 267 or 268.
 Notes:
* If the offender is a public officer, the crime is * The inducement must be actually done with
arbitrary detention under Article 124. malice and a determined will to cause damage.
(People vs. Paalam, C.A., O.G. 8267-8268). But
* If the detention or arrest is for a legal ground, where the victims abandoned their respective
but the public officer delays delivery of the homes out of an irresponsible spirit of
person arrested to the proper judicial authorities, restlessness and adventure, the crime is not
then Article 125 will apply. committed.

* Note that this felony may also be committed by * Minor should not leave his home of his own free
public officers. will

* In art 125, the detention is for some legal * Mitigating if by father or mother
ground while here, the detention is not
authorized by law * The article also punishes the father or mother
who commits the act penalized under the law.
* In art 125, the crime pertains to failure to This arises when the custody of the minor is
deliver the person to the proper judicial authority awarded by the court to one of them after they
within the prescribed period while here, the have separated. The other parent who induces
arrest is not authorized by law the minor to abandon his home is covered by this
article.
Article 270 Article 272
KIDNAPPING AND FAILURE TO RETURN A SLAVERY
MINOR ELEMENTS:
ELEMENTS: 1. That the offender purchases. Sells,
1. That the offender is entrusted with kidnaps or detains a human being.
the custody of a minor person 2. That the purpose of the offender is to
(whether over or under 7 but less than enslave such human being.
18 yrs old)
2. That he deliberately fails to restore SLAVERY is the treatment of a human being as a
the said minor to his parents mere property, stripped of dignity and human
rights. The person is reduced to the level of an
* If any of the foregoing elements is absent, the ordinary animal, a mere chattel with material
kidnapping of the minor will then fall under value capable of pecuniary estimation and for
Article 267. which reason, the offender purchases and sells
the same.
* If the accused is any of the parents, Article 267
does not apply; Articles 270 and 271 apply. Note: Qualifying circumstance – if the purpose
of the offender is to assign the offended party to
* If the taking is with the consent of the parents, some immoral traffic (prostitution), the penalty is
the crime in Article 270 is committed. higher

* In People v. Generosa, it was held that * This is distinguished from illegal detention by
deliberate failure to return a minor under one’s the purpose. If the purpose of the kidnapping or
custody constitutes deprivation of liberty. detention is to enslave the offended party, slavery
Kidnapping and failure to return a minor is is committed.
necessarily included in kidnapping and serious
illegal detention of a minor under Article 267(4). * The crime is slavery if the offender is not
engaged in the business of prostitution. If he is,
* In People v. Mendoza, where a minor child was the crime is white slave trade under Article 341.
taken by the accused without the knowledge and
consent of his parents, it was held that the crime Article 273
is kidnapping and serious illegal detention under EXPLOITION OF CHILD LABOR
Article 267, not kidnapping and failure to return ELEMENTS:
a minor under Article 270. 1. That the offender retains a minor in his
service.
Article 271 2. That it is against the will of the minor.
INDUCING A MINOR TO ABANDON HIS HOME 3. That it is under the pretext of
ELEMENTS: reimbursing himself of a debt incurred
1. That the minor (whether over or by an ascendant, guardian or person
under 7) is living in the home of his entrusted with the custody of such
parents or guardians or the person minor.
entrusted with his custody
2. That the offender induces a minor to * If the minor agrees to serve the accused, no
abandon such home crime is committed, even if the service is
rendered to pay an ascendant’s alleged debt.
 * If what happened was an accident at first, there
would be no liability pursuant to Article 12 (4) of
the RPC – damnum absque injuria. But if you
abandon your victim, you will be liable under
Article 275. Here, the character of the place is
Article 274 immaterial. As long as the victim was injured
SERVICES RENDERED UNDER COMPULSION because of the accident caused by the offender,
IN PAYMENT OF DEBT the offender would be liable for abandonment if
ELEMENTS: he would not render assistance to the victim.
1. That the offender compels a debtor to
work for him, either as household Article 276
servant or farm laborer. ABANDONING A MINOR
2. That it is against the debtor’s will.
3. That the purpose is to require or enforce ELEMENTS:
the payment of a debt. 1. That the offender has the custody of
a child.
Involuntary servitude or service. In this article, 2. That the child is under seven years of
no distinction is made whether the offended is a age.
minor or an adult. 3. That he abandons such child.
4. That he has no intent to kill the child
CRIMES AGAINST SECURITY when the latter is abandoned.

Article 275 Notes:

ABANDONMENT OF PERSON IN DANGER AND
ABANDONMENT OF ONE’S OWN VICTIM * Conscious, deliberate, permanent

Acts punishable: * In order to hold one criminally liable under this

1. By failing to render assistance to any article, the offender must have abandoned the
person whom the offender finds in an child with deliberate intent. The purpose of the
inhabited place wounded or in danger of offender must solely be avoidance of the obligation
dying, when he can render such of taking care of the minor.
assistance without detriment to himself,
unless such omission shall constitute a Qualifying circumstances:
more serious offense a. When the death of the minor resulted
from such abandonment
Elements
a. That place is not inhabited. b. If the life of the minor was in danger
b. The accused found there a person because of the abandonment
wounded or in danger of dying.
c. The accused can render assistance Article 277
without detriment to himself. ABANDONMENT OF MINOR BY PERSON
d. The accused fails to render assistance. ENTRUSTED WITH HIS CUSTODY;
2. By failing to help or render assistance to INDIFFERENCE OF PARENTS
another whom the offender has Acts punished:
accidentally wounded or injured 1. By delivering a minor to a public
3. By failing to deliver a child, under 7 institution or other persons w/o consent
whom the offender has found abandoned, of the one who entrusted such minor to
to the authorities or to his family, or by the care of the offender or, in the absence
failing to take him to a safe place of that one, without the consent of the
proper authorities
* Under the first act, the offender is liable only Elements:
when he can render such assistance without a. That the offender has charged of the
detriment to himself, unless such omission shall rearing or education of a minor.
constitute a more serious offense. Where the
person is already wounded and already in danger b. That he delivers said minor to a public
of dying, there is an obligation to render institution or other persons.
assistance only if he is found in an uninhabited
place. If the mortally wounded, dying person is c. That the one who entrusted such child to
found in a place not uninhabited in legal the offender has not consented to such act,
contemplation, abandonment will not bring about or if the one who entrusted such child to the
this crime. An uninhabited place is determined offender is absent; the proper authorities
by possibility of person receiving assistance from have not consented to it.
another. Even if there are many houses around, 2. By neglecting his (offender’s) children by
the place may still be uninhabited if possibility of not giving them education which their
receiving assistance is remote. station in life requires and financial
condition permits
Elements: Age – Must be below 16 years. At this age, the
a. That the offender is a parent. minor is still growing.
b. That he neglects his children by not giving
them education. * If the employer is an ascendant, the crime is not
c. That his station in life requires such committed, unless the minor is less than 12
education and his financial condition years old. Because if the employer is an
permits it. ascendant, the law regards that he would look
after the welfare and protection of the child;
“Indifference of parents” – while they are hence, the age is lowered to 12 years. Below that
financially capable of supporting the needs of age, the crime is committed.
their children, they deliberately neglect to
support the educational requirements of these * But remember Republic Act No. 7610 (Special
children through plain irresponsibility caused by Protection of Children against Child Abuse,
wrong social values. Exploitation and Discrimination Act). It applies to
minors below 18 years old, not 16 years old as in
Article 278 the Revised Penal Code. As long as the
EXPLOITATION OF MINORS employment is inimical – even though there is no
Acts punished: physical risk – and detrimental to the child’s
1. By causing any boy or girl under 16 to interest – against moral, intellectual, physical,
perform any dangerous feat of balancing, and mental development of the minor – the
physical strength or contortion, the establishment will be closed.
offender being any person
2. By employing children under 16 who are * Article 278 has no application if minor is 16
not the children or descendants of the years old and above. But the exploitation will be
offender in exhibitions of acrobat, dealt with by Republic Act No. 7610.
gymnast, rope-walker, diver, or wild-
animal tamer or circus manager or * If the minor so employed would suffer some
engaged in a similar calling injuries as a result of a violation of Article 278,
3. By employing any descendant under 12 Article 279 provides that there would be
in dangerous exhibitions enumerated in additional criminal liability for the resulting
the next preceding paragraph, the felony.
offender being engaged in any of said
callings ADDITIONAL PENALTIES FOR OTHER
4. By delivering a child under 16 OFFENSES: (279)
gratuitously to any person following any
of the callings enumerated in par 2 or to Article 280
any habitual vagrant or beggar, the QUALIFIED TRESPASS TO DWELLING
offender being an ascendant, guardian, ELEMENTS:
teacher or person entrusted in any 1. That the offender is a private person.
capacity with the care of such child 2. That he enters the dwelling of another.
5. By inducing any child under 16 to 3. That such entrance is against the latter’s
abandon the home of its ascendants; will.
guardians, curators or teachers to follow
any person engaged in any of the callings Notes:
mentioned in par 2 or to accompany any
habitual vagrant or beggar, the offender DWELLING – This is the place that a person
being any person inhabits. It includes the dependencies which
have interior communication with the house. It
Note: Qualifying Circumstance – if the delivery is not necessary that it be the permanent
of the child to any person following any of the dwelling of the person. So, a person’s room in a
callings of acrobat, rope-walker, diver or wild- hotel may be considered a dwelling. It also
animal trainer or circus manager or to any includes a room where one resides as a boarder.
habitual vagrant of beggar is made in
consideration of any price, compensation or Qualifying circumstance: if the offense is
promise, the penalty is higher. committed by means of violence or intimidation,
the penalty is higher
* The offender is engaged in a kind of business
that would place the life or limb of the minor in * There must be an opposition to the entry of the
danger, even though working for him is not accused
against the will of the minor.
Nature of the Business – This involves circuses * If the entry is made by a way not intended for
which generally attract children so entry, that is presumed to be against the will of
they themselves may enjoy working the occupant (example, entry through a window).
there unaware of the danger to their It is not necessary that there be a breaking.
own lives and limbs.
* Lack of permission to enter a dwelling does not whom was injured by him, the crime committed
amount to prohibition. So, one who enters a will be trespass to dwelling and frustrated
building is not presumed to be trespasser until the homicide, physical injuries, or if there was no
owner tells him to leave the building. In such a injury, unjust vexation.
case, if he refuses to leave, then his entry shall
now be considered to have been made without * May be committed even by the owner (as
the express consent of the owner. (People vs. De against the actual occupant)
Peralta, 42 Phil. 69)
* Even if the house belonged to the accused, if
* Even if the door is not locked, for as long as it is the possession has been delivered to another by
closed, the prohibition is presumed especially if reason of contract or by a mere tolerance, his
the entry was done at the late hour of the night being the owner would not authorize him to enter
or at an unholy hour of the day. (U. S. vs. the house against the will of the lawful occupant.
Mesina, 21 Phil. 615) His ownership is no authority for him to place the
law in his hands. (People vs. Almeda, 75 Phil.
* Implied prohibition is present considering the 476)
situation – late at night and everyone’s asleep or
entrance was made through the window Distinction between qualified trespass to
dwelling and violation of domicile
“Against the will” -- This means that the
entrance is, either expressly or impliedly, Unlike qualified trespass to dwelling, violation of
prohibited or the prohibition is presumed. domicile may be committed only by a public
Fraudulent entrance may constitute trespass. The officer or employee and the violation may consist
prohibition to enter may be made at any time and of any of the three acts mentioned in Article 128
not necessarily at the time of the entrance. – (1) entering the dwelling against the will of the
owner without judicial order; (2) searching papers
* To prove that an entry is against the will of the or other effects found in such dwelling without
occupant, it is not necessary that the entry the previous consent of the owner thereof; and
should be preceded by an express prohibition, (3) refusing to leave the dwelling when so
provided that the opposition of the occupant is requested by the owner thereof, after having
clearly established by the circumstances under surreptitiously entered such dwelling.
which the entry is made, such as the existence of
enmity or strained relations between the accused Not applicable to:
and the occupant. a. entrance is for the purpose of preventing
harm to himself, the occupants or a third
* Prohibition is not necessary when violence or person
intimidation is employed by the offender b. purpose is to render some service to
humanity or justice
* On violence, Cuello Calon opines that violence c. place is a café, tavern etc while open
may be committed not only against
persons but also against things. So, * Pursuant to Section 6, Rule 113 of the Rules of
breaking the door or glass of a Court, a person who believes that a crime has
window or door constitutes acts of been committed against him has every right to go
violence. Our Supreme Court after the culprit and arrest him without any
followed this view in People v. warrant even if in the process he enters the
Tayag. Violence or intimidation house of another against the latter’s will.
must, however, be anterior or
coetaneous with the entrance and Medina case: when the accused entered the
must not be posterior. But if the dwelling through the window, he had no intent to
violence is employed immediately after kill any person inside, but the intention to kill
the entrance without the consent of came to his mind when he was being arrested by
the owner of the house, trespass is the occupants thereof, the crime of trespass to
committed. If there is also violence or dwelling is a separate and distinct offense from
intimidation, proof of prohibition to frustrated homicide
enter is no longer necessary.
Article 281
* When there is no overt act of the crime intended OTHER FORMS OF TRESPASS
to be committed, this is the crime ELEMENTS:
1. That the offender enters the closed
* If the purpose in entering the dwelling is not premises or the fenced estate of another.
shown, trespass is committed. If the purpose is 2. That the entrance is made while either of
shown, it may be absorbed in the crime as in them is uninhabited.
robbery with force upon things, the trespass 3. That the prohibition to enter be manifest.
yielding to the more serious crime. But if the 4. That the trespasser has not secured the
purpose is not shown and while inside the permission of the owner or the caretaker
dwelling he was found by the occupants, one of thereof.
 commission upon his person, honor or property
THREATS and COERCIONS or upon that of his family of some wrong which
may or may not amount to a crime:
Article 282
GRAVE THREATS (1) Grave threats – when the wrong
Acts punishable: threatened to be inflicted amounts to a
1. By threatening another with the crime. The case falls under Article 282.
infliction upon his person, honor or
property that of his family of any wrong (2) Light threats – if it does not amount to
amounting to a crime and demanding a crime. The case falls under Article 283.
money or imposing any other condition,
even though not unlawful and the But even if the harm intended is in the nature of
offender (Note: threat is with condition) a crime, if made orally and in the heat of anger
and after the oral threat, the issuer of the threat
Elements did not pursue the act, the crime is only other
a. That the offender threatens another person light threats under Article 285.
with the infliction upon the latter’s person,
honor or property, or upon that of the latter’s To constitute grave threats, the threats must refer
family, of any wrong. to a future wrong and is committed by acts or
b. That such wrong amounts to a crime. through words of such efficiency to inspire terror
c. That there is a demand for money or that or fear upon another. It is, therefore,
any other condition is imposed, even though characterized by moral pressure that produces
not unlawful. disquietude or alarm.
d. That the offender attains his purpose.
The greater perversity of the offender is
2. By making such threat without the manifested when the threats are made
offender attaining his purpose demanding money or imposing any condition,
whether lawful or not, and the offender shall have
3. By threatening another with the attained his purpose. So the law imposes upon
infliction upon his person, honor or him the penalty next lower in degree than that
property or that of his family of any prescribed for the crime threatened to be
wrong amounting to a crime, the threat committed. But if the purpose is not attained, the
not being subject to a condition (Note: penalty lower by two degrees is imposed. The
threat is without condition) maximum period of the penalty is imposed if the
threats are made in writing or through a
Elements middleman as they manifest evident
a. That the offender threatens another person premeditation.
with the infliction upon the latter’s person,
honor or property, or upon that of the latter’s Distinction between threat and coercion:
family, of any wrong.
b. That such wrong amounts to a crime. The essence of coercion is violence or
c. That the threat is not subject to a condition intimidation. There is no condition involved;
hence, there is no futurity in the harm or wrong
Notes: done.

Intimidation is an indispensable element in the In threat, the wrong or harm done is future and
crime of threat. The very essence of threat is to conditional. In coercion, it is direct and personal.
sow fear, anxiety and insecurity in the mind of
the offended party. It is done by threatening to Distinction between threat and robbery:
commit the crime upon the person, honor and
property of the offended party. There is a promise (1) As to intimidation – In robbery, the
of some future harm or injury. intimidation is actual and immediate; in
threat, the intimidation is future and
Aggravating circumstances: if made in writing conditional.
or thru a middleman
(2) As to nature of intimidation – In robbery,
Frustrated – if not received by the person being the intimidation is personal; in threats, it
threatened may be through an intermediary.

* Art 284 bond for good behavior may be imposed (3) As to subject matter – Robbery refers to
(only in these offenses) personal property; threat may refer to the
person, honor or property.
Ortega Notes:
(4) As to intent to gain – In robbery, there is
Threat is a declaration of an intention or intent to gain; in threats, intent to gain is
determination to injure another by the not an essential element.
 exceeding six months if the crime for which he
(5) In robbery, the robber makes the danger was convicted is classified as grave felony or for a
involved in his threats directly imminent period not exceeding thirty days if convicted for a
to the victim and the obtainment of his light felony.
gain immediate, thereby also taking
rights to his person by the opposition or Article 285
resistance which the victim might offer; OTHER LIGHT THREATS
in threat, the danger to the victim is not ELEMENTS:
instantly imminent nor the gain of the 1. Person shall threaten another with a
culprit immediate. weapon, or draw weapon in a quarrel
unless in self-defense.
2. In the heat of anger, person orally
Article 283 threatens another with some harm
LIGHT THREATS constituting a crime, without persisting
ELEMENTS: in the idea involved in the threat.
1. That the offender makes a threat to Subsequent acts did not persist.
commit a wrong. 3. Person orally threatens another with
2. That the wrong does not constitute a harm not constituting a felony.
crime.
3. That there is a demand for money or that * In the crime of light threats, there is no demand
other condition is imposed, even though for money and the threat made is not planned or
not unlawful done with deliberate intent. So threats which
4. That the offender has attained his would otherwise qualify as grave threats, when
purpose or, that he has not attained his made in the heat of anger or which is a product
purpose of a spur of the moment are generally considered
as light threats.
* In order to convict a person of the crime of light
threats, the harm threatened must not be in the * Whether it is grave or light threats, the crime is
nature of crime and there is a demand for money committed even in the absence of the person to
or any other condition is imposed, even though whom the threat is directed.
lawful
Article 286
GRAVE COERCIONS
Question & Answer
ELEMENTS:
1. That a person prevented another from
Blackmailing constitutes what crime? doing something OR not to do something
against his will, be it right or wrong;
It is a crime of light threat under Article 2. That the prevention or compulsion be
283 if there is no threat to publish any libelous effected by violence, of force as would
or slanderous matter against the offended party. produce intimidation and control the
If there is such a threat to make a slanderous or will.
libelous publication against the offended party, 3. That the person that restrained the will
the crime will be one of libel, which is penalized and liberty by another had not the
under Article 356. For example, a person authority of law or the right to do so, or,
threatens to expose the affairs of married man if in other words, that the restraint shall
the latter does not give him money. There is not be made under authority of law or in
intimidation done under a demand. the exercise of any lawful right.

Article 284 Acts punished

BOND FOR GOOD BEHAVIOR
1. Preventing another, by means of violence,
* The law imposes the penalty of bond for good threats or intimidation, from doing
behavior only in case of grave and light threats. something not prohibited by law;
If the offender can not post the bond, he will be
banished by way of destierro to prevent him from 2. Compelling another, by means of
carrying out his threat. violence, threats or intimidation, to do
something against his will, whether it be
* Bond for good behavior means the posting of right or wrong.
bond on the part of the accused in order to
guarantee that he will not molest the offended * In grave coercion, the act of preventing by force
party. It is in the nature of an additional penalty. must be made at the time the offended party was
doing or was about to do the act to be prevented.
* Bond to keep peace under Article 35 is
applicable to all cases and is treated as a distinct * Grave coercion arises only if the act which the
penalty. If the sentenced prisoner fails to give the offender prevented another to do is not prohibited
bond, he shall be detained for a period not
by law or ordinance. If the act prohibited was * In Lee v. CA, 201 SCAR 405, it was held that
illegal, he is not liable for grave coercion. neither the crime of threats nor coercion
is committed although the accused, a
* If a person prohibits another to do an act branch manager of a bank made the
because the act is a crime, even though some complainant sign a withdrawal slip for
sort of violence or intimidation is employed, it the amount needed to pay the spurious
would not give rise to grave coercion. It may only dollar check she had encashed, and also
give rise to threat or physical injuries, if some made her execute an affidavit regarding
injuries are inflicted. However, in case of grave the return of the amount against her
coercion where the offended party is being better sense and judgment. According to
compelled to do something against his will, the court, the complainant may have
whether it be wrong or not, the crime of grave acted reluctantly and with hesitation, but
coercion is committed if violence or intimidation still, it was voluntary. It is different
is employed in order to compel him to do the act. when a complainant refuses absolutely to
No person shall take the law into his own hands. act such an extent that she becomes a
mere automaton and acts mechanically
Illustration: only, not of her own will. In this
situation, the complainant ceases to exits
Compelling the debtor to deliver some of his as an independent personality and the
properties to pay a creditor will amount to person who employs force or intimidation
coercion although the creditor may have a right is, in the eyes of the law, the one acting;
to collect payment from the debtor, even if the while the hand of the complainant sign,
obligation is long over due. the will that moves it is the hand of the
offender.
* The violence employed in grave coercion must be
immediate, actual, or imminent. In the absence of Article 287
actual or imminent force or violence, coercion is LIGHT COERCIONS
not committed. The essence of coercion is an ELEMENTS:
attack on individual liberty. 1. That the offender must be a creditor.
2. That he seizes anything belonging to his
* The physical violence is exerted to (1) prevent a debtor.
person from doing something he wants to do; or 3. That the seizure of the thing be
(2) compel him to do something he does not want accomplished by means of violence or a
to do. display of material force producing
intimidation;
Illustration: 4. That the purpose of the offender is to
apply the same to the payment of the
If a man compels another to show the contents of debt.
the latter’s pockets, and takes the wallet, this is
robbery and not grave coercion. The intimidation UNJUST VEXATION
is a means of committing robbery with violence or
intimidation of persons. Violence is inherent in * In unjust vexation, any act committed without
the crime of robbery with violence or intimidation violence, but which unjustifiably annoys or vexes
upon persons and in usurpation of real an innocent person amounts to light coercion.
properties because it is the means of committing
the crime. * As a punishable act, unjust vexation should
include any human conduct which, although not
* Exception to the rule that physical violence productive of some physical or material harm
must be exerted: where intimidation is so serious would, however, unjustifiably annoy or vex an
that it is not a threat anymore – it approximates innocent person.
violence.
* It is distinguished from grave coercion under
the first paragraph by the absence of violence.

Illustration:

Persons stoning someone else’s house. So long

as stoning is not serious and it is intended to
annoy, it is unjust vexation. It disturbs the
peace of mind.

* The main purpose of the statute penalizing

coercion and unjust vexation is precisely to
enforce the principle that no person may take the
law into his hands and that our government is
one of laws, not of men. The essence of the * Peaceful picketing is part of the freedom of
crimes is the attack on individual liberty. speech and is not covered by this article.

* Preventing employees or laborers from joining

Article 288 any registered labor organization is punished
OTHER SIMILAR COERCIONS under Art. 248 of the Labor Code.

ELEMENTS OF NO. 1 DISCOVERY AND REVELATION OF SECRETS

Forcing or compelling, directly or indirectly, or Article 290
knowingly permitting the forcing or compelling of DISCOVERING SECRETS THROUGH SEIZURE
the laborer or employee of the offender to OF CORRESPONDENCE
purchase merchandise of commodities of any kind ELEMENTS:
from him; 1. That the offender is a private
individual or even a public officer not
1. That the offender is any person, agent or in the exercise of his official
officer of any association or corporation. function,
2. That he or such firm or corporation has 2. That he seizes the papers or letters of
employed laborers or employees. another.
3. That he forces or compels, directly or 3. That the purpose is to discover the
indirectly, or knowingly permits to be secrets of such another person.
forced or compelled, any of his or its 4. That offender is informed of the
laborers or employees to purchase contents or the papers or letters
merchandise or commodities of any kind seized.
from his or from said firm or corporation.
Notes:
ELEMENTS OF NO. 2
Paying the wages due his laborer or employee by * This is a crime against the security of one’s
means of tokens or object other than the legal papers and effects. The purpose must be to
tender currency of the Philippines, unless discover its effects. The act violates the privacy
expressly requested by such laborer or employee. of communication.

1. That the offender pays the wages due a * Not applicable to parents with respect to minor
laborer or employee employed by him by children
means of tokens or objects.
2. That those tokens or objects are other * The last paragraph of Article 290 expressly
than the legal tender currency to the makes the provision of the first and second
Philippines. paragraph thereof inapplicable to parents,
3. That such employee or laborer does not guardians, or persons entrusted with the custody
expressly request that he be paid by of minors placed under their care or custody, and
means of tokens or objects. to the spouses with respect to the papers or
letters of either of them. The teachers or other
* Under the Republic Act No. 602, known as the persons entrusted with the care and education of
Minimum Wage Law, wages of laborers must be minors are included in the exceptions.
paid in legal tender. Accordingly, it is unlawful to In a case decided by the Supreme Court, a
pay the wages of the laborers in the form of spouse who rummaged and found love letters of
promissory notes, vouchers, coupons, tokens, or husband to mistress does not commit this crime,
any other forms alleged to represent legal tender. but the letters are inadmissible in evidence
because of unreasonable search and seizure. The
ruling held that the wife should have applied for
Article 289 a search warrant.
FORMATION, MAINTENANCE, AND
PROHIBITION OF COMBINATION OF CAPITAL * Contents need not be secret but purpose
OR LABOR THROUGH VIOLENCE OR prevails
THREATS
ELEMENTS: * According to Ortega, it is not necessary that the
1. That the offender employs violence or offender should actually discover the contents of
threats, in such a degree as to compel or the letter. Reyes, citing People v. Singh, CA, 40
force the laborers or employers in the OG, Suppl. 5, 35, believes otherwise.
free and legal exercise of their industry
or work Circumstances qualifying the offense: when
2. That the purpose is to organize, maintain the offender reveals contents of such papers or
or prevent coalitions of capital or labor, letters of another to a 3rd person, the penalty is
strike of laborers or lockout of higher
employees.
Distinction from estafa, damage to property,
and unjust vexation:
 existing and functioning cannot claim to have a
If the act had been executed with intent of gain, it business secret, much less, a discovery within
would be estafa; the contemplation of Article 292.

If, on the other hand, the purpose was not to

defraud, but only to cause damage to another’s, TITLE TEN
it would merit the qualification of damage to CRIMES AGAINST PROPERTY
property;
Crimes against property
If the intention was merely to cause vexation 1. Robbery with violence against or
preventing another to do something which the intimidation of persons (Art. 294);
law does not prohibit or compel him to execute 2. Attempted and frustrated robbery
what he does not want, the act should be committed under certain circumstances
considered as unjust vexation. (Art. 297);
3. Execution of deeds by means of violence
Article 291 or intimidation (Art. 298);
REVEALING SECRETS WITH ABUSE OF 4. Robbery in an inhabited house or public
OFFICE building or edifice devoted to worship
(Art. 299);
ELEMENTS: 5. Robbery in an inhabited place or in a
1. That the offender is a manager, private building (Art. 302);
employee or servant. 6. Possession of picklocks or similar tools
2. That he learns the secrets of his (Art. 304);
principal or master in such capacity. 7. Brigandage (Art. 306);
3. That he reveals such secrets. 8. Aiding and abetting a band of brigands
(Art. 307);
* An employee, manager, or servant who came to 9. Theft (Art. 308);
know of the secret of his master or principal in 10. Qualified theft (Art. 310);
such capacity and reveals the same shall also be 11. Theft of the property of the National
liable regardless of whether or not the principal Library and National Museum (Art. 311);
or master suffered damages. 12. Occupation of real property or
usurpation of real rights in property (Art.
* The essence of this crime is that the offender 312);
learned of the secret in the course of his 13. Altering boundaries or landmarks (Art.
employment. He is enjoying a confidential 313);
relation with the employer or master so he should 14. Fraudulent insolvency (Art. 314);
respect the privacy of matters personal to the 15. Swindling (Art. 315);
latter. 16. Other forms of swindling (Art. 316);
17. Swindling a minor (Art. 317);
* If the matter pertains to the business of the 18. Other deceits (Art. 318);
employer or master, damage is necessary and the 19. Removal, sale or pledge of mortgaged
agent, employee or servant shall always be liable. property (Art. 319);
Reason: no one has a right to the personal 20. Destructive arson (Art. 320);
privacy of another. 21. Other forms of arson (Art. 321);
22. Arson of property of small value (Art.
Article 292 323);
REVELATION OF INDUSTRIAL SECRETS 23. Crimes involving destruction (Art. 324);
ELEMENTS: 24. Burning one’s own property as means to
1. That the offender is a person in commit arson (Art. 325);
charge, employee or workman of a 25. Setting fire to property exclusively owned
manufacturing or industrial by the offender (Art. 326);
establishment. 26. Malicious mischief (Art. 327);
2. That the manufacturing or industrial 27. Special case of malicious mischief (Art.
establishment has a secret of the 328);
industry which the offender has 28. Damage and obstruction to means of
learned. communication (Art. 330);
3. That the offender reveals such 29. Destroying or damaging statues, public
secrets. monuments or paintings (Art. 331).
4. That the prejudice is caused to the
owner. Article 293
ROBBERY IN GENERAL
* A business secret must not be known to other ELEMENTS:
business entities or persons. It is a matter to be 1. That there be personal property
discovered, known and used by and must belong belonging to another.
to one person or entity exclusively. One who 2. That there is unlawful taking of that
merely copies their machines from those already property.
 3. That the taking must be with intent
to gain, and As to robbery with force upon things – thing
4. That there is violence against or must be taken out of the building
intimidation of any person, or force
upon anything. Intent to gain – presumed from unlawful taking

Notes: * Intent to gain may be presumed from the

unlawful taking of another’s property. However,
ROBBERY – This is the taking or personal when one takes a property under the claim of
property belonging to another, with intent to ownership or title, the taking is not considered to
gain, by means of violence against, or be with intent to gain. (U. S. vs. Manluco, et al.,
intimidation of any person, or using force upon 28 Phil. 360)
anything.
* When there’s no intent to gain but there is
Two kinds of robbery: 1) robbery with violence violence in the taking – grave coercion
or intimidation and 2) robbery with force upon
things. * Violence or intimidation must be against the
person of the offended party, not upon the thing
Belonging to another – person from whom General rule: violence or intimidation must be
property was taken need not be the owner, legal present before the “taking” is complete
possession is sufficient Except: when violence results in – homicide,
rape, intentional mutilation or any of the serious
* The property must be personal property and physical injuries in par 1 and 2 of art 263, the
cannot refer to real property. taking of the property is robbery complexed with
any of these crimes under art 294, even if taking
* Name of the real owner is not essential so long is already complete when violence was used by
as the personal property taken does not belong to the offender
the accused except if crime is robbery with
homicide Use of force upon things – entrance to the
building by means described in arts 299 and 302
* The owner of the property may be held liable for (offender must enter)
robbery where he forcible takes the property from
the possession of the bailee with intent to charge * The other kind of robbery is one that is
the latter with its value. (U. S. vs. Albao, 29 committed with the use of force upon anything in
Phil. 86) order to take with intent to gain, the personal
property of another. The use of force here must
* In the absence of any explanation as to how one refer to the force employed upon things in order
has come into possession of stolen effects to gain entrance into a building or a house.
belonging to a person wounded and (People vs. Adorno, C. A. 40 O. G. 567)
treacherously killed, the possessor must
necessarily be considered the author of the * When both violence or intimidation and force
aggression and death of the victim as well as of upon things concur – it is robbery with violence
the robbery committed. (People vs. Rapuela. G.
R. NO. 85178, March 15, 1990 Robbery and Theft, compared.
Suppose the property is res nullus or without 1. Both robbery and theft involve unlawful taking
an owner? or asportation as an element;

The crime of robbery or theft cannot be 2. Both involve personal property belonging to
committed if the property is without an owner for another;
the simple reason that no one can be prejudiced
by the taking of the personal property, even 3. In both crimes, the taking is done with intent
though the intent to gain is present in the taking. to gain;

Taking of personal property – must be 5. In robbery, the taking is done either with the
unlawful; if given in trust – estafa use of violence or intimidation of person or
the employment of force upon things;
* The taking of the property must be coupled with whereas in theft, the taking is done simply
the intention to permanently deprive the offended without the knowledge and consent of the
party of his possession of the things taken. owner.
(People vs. Kho Choc, C. A., 50 O. G. 1667)
Robbery with Grave threats Grave
As to robbery with violence or intimidation – violence coercion
from the moment the offender gains possession of Intent to gain No intent to None
the thing even if offender has had no opportunity gain
to dispose of the same, the unlawful taking is Immediate Intimidation; Intimidation
complete harm promises some (effect) is
 future harm or immediate By reason or on occasion of the robbery, the
injury and offended following are committed:
party is
compelled to 1. homicide
do something 2. robbery accompanied with rape or intentional
against his mutilation, SPI – insane, imbecile, impotent or
will (w/n blind
right or 3. SPI – lost the use of speech, hear, smell, eye,
wrong) hand, foot, arm, leg, use of any such member,
incapacitated for work habitually engaged in
Robbery Bribery 4. Violence/intimidation shall have been carried
X didn’t commit crime X has committed a to a degree clearly unnecessary for the crime or
but is intimidated to crime and gives when in the cause of its execution –
deprive him of his money as way to SPI/deformity, or shall have lost any part of the
property avoid arrest or body or the use thereof or shall have been ill or
prosecution incapacitated for the performance of the work for
Deprived of money thru Giving of money is in > 90 days; > 30 days
force or intimidation one sense voluntary 5. Any kind of robbery with less serious physical
Neither Transaction is injuries or slight physical injuries
voluntary and
mutual Notes:
Ex. defendant demands
payment of P2.00 with SPECIAL COMPLEX CRIMES (specific
threats of arrest and penalties prescribed)
prosecution, therefore, ROBBERY WITH HOMICIDE –
robbery because (a) a. if original design is robbery and
intent to gain and (b) homicide is committed – robbery with
immediate harm homicide even though homicide precedes
the robbery by an appreciable time.

b. If original design is not robbery but

ANTI – CARNAPPING ACT ( RA # 6539 ) robbery was committed after homicide as
an afterthought – 2 separate offenses.
“Carnapping” is the taking, with intent to gain,
of a motor vehicle belonging to another without c. Still robbery with homicide – if the
the latter’s consent, or by means of violence person killed was an innocent bystander
against or intimidation of persons, or by using and not the person robbed and if death
force upon things. supervened by mere accident.

Any vehicle which is motorized using the streets * The original criminal design of the culprit must
which are public, not exclusively for private use be Robbery and the Homicide is perpetrated with
is covered within the concept of motor vehicle a view to the consummation of the Robbery.
under the Anti-Carnapping Law. A tricycle which
is not included in the enumeration of exempted * If death results or even accompanies a robbery,
vehicles under the Carnapping Law is deemed to the crime will be robbery with homicide provided
be motor vehicle as defined in the law, the that the robbery is consummated.
stealing of which comes within its penal sanction.
* As long as the criminal objective or plan is to
If the vehicle uses the streets with or without the rob, whether the killing committed by reason or
required license, the same comes within the on occasion thereof is intentional or accidental,
protection of the law, for the severity of the the crime is Robbery with Homicide. ( Pp vs.
offense is not to be measured by what kind of Pecato, 151 scra 14 ) As long as there was
street or highway the same is used but by the killing when Robbery was taking place, Robbery
nature of the vehicle itself and the case to which with Homicide was committed, the killing
it is devoted. (Izon, et al., vs. People, 107 SCRA occurring on the occasion thereof.
118)
Problem:
Article 294 A, B, C and D robbed a bank.
ROBBERY WITH VIOLENCE AGAINST OR When they were about to flee,
INTIMIDATION OF PERSON policemen came, and they traded
Acts punished as robbery with violence shots with them. If one of the
against or intimidation of policemen was killed, the offense is
persons Robbery with Homicide. If one of the
robbers was the one killed, the
remaining robbers shall be charged
also with Robbery with Homicide. If
 a bank employee was the one killed Illustration:
either by the robbers or by the
policemen in the course of the latter’s The robbers enter the house. In entering through
action of arresting or trying to arrest the window, one of the robbers stepped on a child
the robbers, the crime is still Robbery less than three days old. The crime is not
with Homicide. robbery with infanticide because there is no such
crime. The word homicide as used in defining
* As long as the criminal intent is to rob, that is, robbery with homicide is used in the generic
robbery was the real motive, the offense would sense. It refers to any kind of death.
still be classified as Robbery with Homicide even
if the killing preceded or was done ahead of the * Although it is a crime against property and
robbing. (People vs. Tolentino, 165 SCRA treachery is an aggravating circumstance that
490). applies only to crimes against persons, if the
killing in a robbery is committed with treachery,
* Thus, as a member of the “agaw-armas” gang the treachery will be considered a generic
whose plan and design is to rob a policeman of aggravating circumstance because of the homicide.
his service revolver, but because he fears that
said policeman may beat him to the draw, first * When two or more persons are killed during the
shoots the policeman fatally and only after when robbery, such should be appreciated as an
the latter lies dead, does he get the gun – the aggravating circumstance.
crime is still considered Robbery with Homicide.
* As long as there is only one robbery, regardless
* This is a crime against property, and therefore, of the persons killed, you only have one crime of
you contend not with the killing but with the robbery with homicide. Note, however, that “one
robbery. robbery” does not mean there is only one taking.

* As long as there is only one (1) robbery, Illustration:

regardless of the persons killed, the crime will
only be one (1) count of robbery with homicide. Robbers decided to commit robbery in a house,
The fact that there are multiple killings which turned out to be a boarding house. Thus,
committed in the course of the robbery will be there were different boarders who were offended
considered only as aggravating so as to call for parties in the robbery. There is only one count of
the imposition of the maximum penalty robbery. If there were killings done to different
prescribed by law. boarders during the robbery being committed in
a boarder’s quarter, do not consider that as
* If, on the occasion or by reason of the robbery, separate counts of robbery with homicide
somebody is killed, and there are also physical because when robbers decide to commit robbery
injuries inflicted by reason or on the occasion of in a certain house, they are only impelled by one
the robbery, don’t think that those who sustained criminal intent to rob and there will only be one
physical injuries may separately prosecute the case of robbery. If there were homicide or death
offender for physical injuries. Those physical committed, that would only be part of a single
injuries are only considered aggravating robbery. That there were several killings done
circumstances in the crime of robbery with would only aggravate the commission of the crime
homicide. of robbery with homicide.

* This is not a complex crime as understood * In People v. Quiñones, 183 SCRA 747, it was
under Article 48, but a single indivisible crime. held that there is no crime of robbery
This is a special complex crime because the with multiple homicides. The charge
specific penalty is provided in the law. should be for robbery with homicide only
because the number of persons killed is
* The term “homicide” is used in the generic sense, immaterial and does not increase the
and the complex crime therein contemplated penalty prescribed in Article 294. All the
comprehends not only robbery with homicide in killings are merged in the composite
its restricted sense, but also with robbery with integrated whole that is robbery with
murder. So, any kind of killing by reason of or on homicide so long as the killings were by
the occasion of a robbery will bring about the reason or on occasion of the robbery.
crime of robbery with homicide even if the person
killed is less than three days old, or even if the * In another case, a band of robbers entered a
person killed is the mother or father of the killer, compound, which is actually a sugar mill.
or even if on such robbery the person killed was Within the compound, there were quarters of the
done by treachery or any of the qualifying laborers. They robbed each of the quarters. The
circumstances. In short, there is no crime of Supreme Court held that there was only one
robbery with parricide, robbery with murder, count of robbery because when they decided and
robbery with infanticide – any and all forms of determined to rob the compound, they were only
killing is referred to as homicide. impelled by one criminal intent to rob.
* With more reason, therefore, if in a robbery, the * In People v. Domingo, 184 SCRA 409, on the
offender took away property belonging to different occasion of the robbery, the storeowner,
owners, as long as the taking was done at one a septuagenarian, suffered a stroke due
time, and in one place, impelled by the same to the extreme fear which directly caused
criminal intent to gain, there would only be one his death when the robbers pointed their
count of robbery. guns at him. It was held that the crime
committed was robbery with homicide. It
* In robbery with homicide as a single indivisible is immaterial that death supervened as a
offense, it is immaterial who gets killed. Even mere accident as long as the homicide
though the killing may have resulted from was produced by reason or on the
negligence, you will still designate the crime as occasion of the robbery, because it is only
robbery with homicide. the result which matters, without
Illustration: reference to the circumstances or causes
or persons intervening in the commission
On the occasion of a robbery, one of the offenders of the crime which must be considered.
placed his firearm on the table. While they were
ransacking the place, one of the robbers bumped * Remember also that intent to rob must be
the table. As a result, the firearm fell on the floor proved. But there must be an allegation as to the
and discharged. One of the robbers was the one robbery not only as to the intention to rob.
killed. Even though the placing of the firearm on
the table where there is no safety precaution * If the motive is to kill and the taking is committed
taken may be considered as one of negligence or thereafter, the crimes committed are homicide and
imprudence, you do not separate the homicide as theft. If the primordial intent of the offender is to
one of the product of criminal negligence. It will kill and not to rob but after the killing of the
still be robbery with homicide, whether the person victims a robbery was committed, then there are
killed is connected with the robbery or not. He will be two separate crimes.
need not also be in the place of the robbery.
Illustration:
* In one case, in the course of the struggle in a
house where the robbery was being committed, If a person had an enemy and killed him and
the owner of the place tried to wrest the arm of after killing him, saw that he had a beautiful ring
the robber. A person several meters away was and took this, the crime would be not robbery
the one who got killed. The crime was held to be with homicide because the primary criminal
robbery with homicide. intent is to kill. So, there will be two crimes: one
for the killing and one for the taking of the
* Note that the person killed need not be one who property after the victim was killed. Now this
is identified with the owner of the place where the would bring about the crime of theft and it could
robbery is committed or one who is a stranger to not be robbery anymore because the person is
the robbers. It is enough that the homicide was already dead.
committed by reason of the robbery or on the
occasion thereof. * For robbery with homicide to exist, homicide
must be committed by reason or on the occasion
Illustration: of the robbery, that is, the homicide must be
committed “in the course or because of the
There are two robbers who broke into a house robbery.” Robbery and homicide are separate
and carried away some valuables. After they left offenses when the homicide is not committed “on
such house these two robbers decided to cut or the occasion” or “by reason” of the robbery.
divide the loot already so that they can go of
them. So while they are dividing the loot the * Where the victims were killed, not for the
other robber noticed that the one doing the purpose of committing robbery, and the idea of
division is trying to cheat him and so he taking the money and other personal property of
immediately boxed him. Now this robber who the victims was conceived by the culprits only
was boxed then pulled out his gun and fired at after the killing, it was held in People v. Domingo,
the other one killing the latter. Would that bring 184 SCRA 409, that the culprits committed two
about the crime of robbery with homicide? Yes. separate crimes of homicide or murder (qualified
Even if the robbery was already consummated, by abuse of superior strength) and theft.
the killing was still by reason of the robbery
because they quarreled in dividing the loot that is * The victims were killed first then their money
the subject of the robbery. was taken the money from their dead
bodies. This is robbery with homicide. It
is important here that the intent to commit
robbery must precede the taking of
human life in robbery with homicide. The
offender must have the intent to take
personal property before the killing.
* It must be conclusively shown that the homicide The killing may also result from the offender’s
was committed for the purpose of robbing defense of his possession of the stolen goods. 4)
the victim. In People v. Hernandez, Or it may be resorted to by the offender to
appellants had not thought of robbery facilitate his escape after the commission of the
prior to the killing. The thought of taking robbery.
the victim’s wristwatch was conceived
only after the killing and throwing of the * In People vs. Macalalad, 9 Phil. (1907), the
victim in the canal. Appellants were Supreme Court ruled that whenever homicide is
convicted of two separate crimes of committed as a consequence or on the occasion of
homicide and theft as there is absent a robbery, all those who took part in the
direct relation and intimate connection commission of the robbery are guilty as principals
between the robbery and the killing. in the crime of robbery with homicide unless it
appears that the principal claiming innocence in
* However, if the elements of the crime of robbery the killing, has attempted or tried to prevent the
with violence employed against persons, fail to killing. The burden of proving the attempt to
meet the requirements of Article 294, as when prevent others from killing the victim rests on the
the robbery resulted only in the commission of co-principal of the crime who makes such
frustrated homicide, then Article 294 should be assertion or claim.
ignored and the general provision of the law
should be applied, such as the provision of * The same principle has been applied by the
Article 48. Supreme Court where the crime committed is
robbery accompanied by rape. The criminal
* If robbery is proved but the homicide is not liability of the person or persons who took no part
proven, the accused should be convicted of in the commission of the rape which accompanied
robbery only and the penalty shall not be based the robbery is the same as the robber or robbers
under paragraph 1 but on paragraph 5 of the who actually committed the rape unless the robber
same article, since only intimidation or violence or robbers claiming innocence of the rape had
was employed and it did not result in any of the endeavored to prevent the commission of the rape.
situations mentioned in paragraphs 1 to 4. (People vs. Tiongco, 37 Phil. 95)

* If the robbery is not proven but the homicide is ROBBERY WITH RAPE –
established, then the accused should be held
liable only for homicide and the penalty shall be * intent to commit robbery must precede rape.
taken from Article 249, which deals with crimes
against property, so, if several homicides are * Prosecution of the crime need not be by
alleged in the information for robbery with offended party – fiscal can sign the information.
homicide, and all of these homicides are proven
beyond reasonable doubt, the court will impose a * When rape and homicide co-exist, rape should
separate penalty for each of the homicide that is be considered as aggravating only and the crime
established by the evidence. (People vs. is still robbery with homicide
Barruga, 61 Phil. 318)
* Article 48 is not applicable to this crime
* It is important to remember that the special because robbery is not a necessary means for the
complex crime of robbery with homicide is commission of rape. Neither is rape necessary to
committed, where there exists a direct relation, commit robbery.
an intimate connection between the robbery and
the killing, irrespective of whether the killing be * This is another form of violence or intimidation
prior or subsequent to the robbery; or whether upon person. The rape accompanies the robbery.
both crimes were committed at the same time. In this case where rape and not homicide is
(People vs. Puesca, 87 SCRA 130) committed, there is only a crime of robbery with
rape if both the robbery and the rape are
* Robbery with homicide need not be committed consummated. If during the robbery, attempted
inside a building. What constitutes the crime as rape were committed, the crimes would be
robbery with homicide is the killing of a person separate, that is, one for robbery and one for the
on the occasion or by reason of the taking of attempted rape.
personal property belonging to another with
intent to gain. * The rape committed on the occasion of the
robbery is not considered a private crime because
* The killing on the occasion of robbery may come the crime is robbery, which is a crime against
in different forms. 1) It may be done by the property. So, even though the robber may have
offender for the purpose of suppressing evidence, married the woman raped, the crime remains
like when the victim is killed because he happens robbery with rape. The rape is not erased. This
to know the person of the offender; or 2) when is because the crime is against property which is
the killing is done in order to prevent or remove a single indivisible offense.
any opposition which the victim may put up as
regards the taking of his personal belongings. 3)
* If the woman, who was raped on the occasion of * In People v. Flores, 195 SCRA 295, although
the robbery, pardoned the rapist who is one of the the offenders plan was to get the victim’s money,
robbers, that would not erase the crime of rape. rape her and kill her, but in the actual execution
The offender would still be prosecuted for the of the crime, the thoughts of depriving the victim
crime of robbery with rape, as long as the rape is of her valuables was relegated to the background
consummated. and the offender’s prurient desires surfaced. They
persisted in satisfying their lust. They would
* Pardon by the offended party will not alter the have forgotten about their intent to rob if not for
criminal liability of the offender because in the accidental touching of the victim’s ring and
robbery with rape, the crime committed is not a wristwatch. The taking of the victim’s valuables
crime against chastity but a crime against turned out to be an afterthought. It was held
property. Even under the present amendment that two distinct crimes were committed: rape
which classifies rape as a crime against person, with homicide and theft.
the change has no legal effect on the provision of
Article 294 since the special complex crime of * In People v. Dinola, 183 SCRA 493, it was
robbery with rape is considered, by express held that if the original criminal design of the
provision of law, a single crime notwithstanding accused was to commit rape and after
that there is a plurality of crimes committed. committing the rape, the accused committed
robbery because the opportunity presented itself,
* If the rape is attempted, since it will be a two distinct crimes – rape and robbery were
separate charge and the offended woman committed – not robbery with rape. In the latter,
pardoned the offender, that would bring about a the criminal intent to gain must precede the intent
bar to the prosecution of the attempted rape. If to rape.
the offender married the offended woman, that
would extinguish the criminal liability because the * If rape was the primary objective of the accused
rape is the subject of a separate prosecution. and the taking of her jewelries was not done with
intent to gain but as a token of her supposed
* The intention must be to commit robbery and consent to the sexual intercourse, the accused is
even if the rape is committed before the robbery, guilty of two distinct crimes: rape and unjust
robbery with rape is committed. But if the vexation. (People vs. Villarino, C. A. G. R. No.
accused tried to rape the offended party and 6342-R, Nov. 26, 1951)
because of resistance, he failed to consummate
the act, and then he snatched the vanity case ROBBERY WITH INTIMIDATION –
from her hands when she ran away, two crimes
are committed: attempted rape and theft. * acts done by the accused which by their own
nature or by reason of the circumstances inspire
* There is no complex crime under Article 48 fear in the person against whom they are directed
because a single act is not committed and
attempted rape is not a means necessary to * In the taking of personal property, it is
commit theft and vice-versa. necessary that violence must be employed by the
offender in order that the taking may be
* The Revised Penal Code does not differentiate considered as robbery. So, where the taking is
whether rape was committed before, during or without violence or intimidation and the same is
after the robbery. It is enough that the robbery complete, but the victim pursued the offender in
accompanied the rape. Robbery must not be a order to recover the personal property taken and
mere accident or afterthought. by the reason thereof, he suffers less serious or
slight physical injuries in the hands of the
* If the two (2) crimes were separated both by time offender, the violence employed on the victim
and place, there is no complex crime of Robbery which resulted to his injuries will not convert the
with Rape. Thus, when complainant went out of taking of his personal property to robbery. In
her room about 1:30 a.m. to urinate, one of the such a case, the offender is liable for two crimes,
accused grabbed her, poked an icepick on her namely, theft and less serious or slight physical
neck , and dragged her out of the house and was injuries.
made to board a taxi; and before boarding, she
saw the two (2) companions of the man carrying * The intimidation must be present at the time of
her typewriter and betamax and then joining the taking before it is completed. If the taking is
them in the taxi, and that after alighting from the completed without intimidation and it is
taxi, the two (2) companions left her, and the employed by the offender only to prevent the
man who had grabbed her brought her to a owner from recovering his stolen property, two
motel, where by means of force and intimidation crimes are committed by the offender: theft and
he was able to have sex with her, the crimes grave threat.
committed are Robbery and Forcible Abduction
with Rape. The Rape committed cannot be * If violence is employed against the offended
complexed with Robbery. (People vs. Angeles, party in order to deprive him of his personal
222 SCRA 451). property and the violence resulted to the
infliction of less serious or slight physical
injuries, the crime committed would only be
robbery. Hence, there is no crime of robbery with After the robbers fled from the place where the
less serious or slight injuries. (U. S. vs. Barroga, robbery was committed, they decided to divide the
21 Phil 161) spoils and in the course of the division of the
spoils or the loot, they quarreled. They shot it out
On ROBBERY WITH PHYSICAL INJURIES and one of the robbers was killed. The crime is
still robbery with homicide even though one of
* To be considered as such, the physical injuries the robbers was the one killed by one of them. If
must always be serious. If the physical injuries they quarreled and serious physical injuries
are only less serious or slight, they are absorbed rendered one of the robbers impotent, blind in both
in the robbery. The crime becomes merely eyes, or got insane, or he lost the use of any of his
robbery. But if the less serious physical injuries senses, lost the use of any part of his body, the
were committed after the robbery was already crime will still be robbery with serious physical
consummated, there would be a separate charge injuries.
for the less serious physical injuries. It will only
be absorbed in the robbery if it was inflicted in * If the robbers quarreled over the loot and one of
the course of the execution of the robbery. The the robbers hacked the other robber causing a
same is true in the case of slight physical deformity in his face, the crime will only be
injuries. robbery and a separate charge for the serious
physical injuries because when it is a deformity
Illustration: that is caused, the law requires that the deformity
must have been inflicted upon one who is not a
After the robbery had been committed and the participant in the robbery. Moreover, the physical
robbers were already fleeing from the house injuries which gave rise to the deformity or which
where the robbery was committed, the owner of incapacitated the offended party from labor for
the house chased them and the robbers fought more than 30 days, must have been inflicted in
back. If only less serious physical injuries were the course of the execution of the robbery or
inflicted, there will be separate crimes: one for while the robbery was taking place.
robbery and one for less serious physical injuries.
* If it was inflicted when the thieves/robbers are
* But if after the robbery was committed and the already dividing the spoils, it cannot be
robbers were already fleeing from the house considered as inflicted in the course of execution
where the robbery was committed, the owner or of the robbery and hence, it will not give rise to
members of the family of the owner chased them, the crime of robbery with serious physical
and they fought back and somebody was killed, injuries. You only have one count of robbery and
the crime would still be robbery with homicide. another count for the serious physical injuries
But if serious physical injuries were inflicted and inflicted.
the serious physical injuries rendered the victim
impotent or insane or the victim lost the use of * If, during or on the occasion or by reason of the
any of his senses or lost a part of his body, the robbery, a killing, rape or serious physical injuries
crime would still be robbery with serious physical took place, there will only be one crime of robbery
injuries. The physical injuries (serious) should with homicide because all of these – killing, rape,
not be separated regardless of whether they serious physical injuries -- are contemplated by
retorted in the course of the commission of the law as the violence or intimidation which
robbery or even after the robbery was characterizes the taking as on of robbery. You
consummated. charge the offenders of robbery with homicide.
The rape or physical injuries will only be
* In Article 299, it is only when the physical appreciated as aggravating circumstance and is
injuries resulted in the deformity or incapacitated not the subject of a separate prosecution. They
the offended party from labor for more than 30 will only call for the imposition of the penalty in
days that the law requires such physical injuries the maximum period.
to have been inflicted in the course of the
execution of the robbery, and only upon persons * If on the occasion of the robbery with homicide,
who are not responsible in the commission of the robbery with force upon things was also
robbery. committed, you will not have only one robbery but
you will have a complex crime of robbery with
* But if the physical injuries inflicted are those homicide and robbery with force upon things (see
falling under subdivision 1 and 2 of Article 263, Napolis v. CA). This is because robbery with
even though the physical injuries were inflicted violence or intimidation upon persons is a
upon one of the robbers themselves, and even separate crime from robbery with force upon
though it had been inflicted after the robbery was things.
already consummated, the crime will still be
robbery with serious physical injuries. There will * Robbery with homicide, robbery with intentional
only be one count of accusation. mutilation and robbery with rape are not
qualified by band or uninhabited place. These
Illustration: aggravating circumstances only qualify robbery
with physical injuries under subdivision 2, 3, and a. in an uninhabited place or
4 of Article 299. b. by a band or
c. by attacking a moving train, street
* When it is robbery with homicide, the band or car, motor vehicle or airship, or
uninhabited place is only a generic aggravating d. by entering the passenger’s
circumstance. It will not qualify the crime to a compartments in a train, or in any manner
higher degree of penalty. taking the passengers thereof by surprise in
the respective conveyances, or
* In People v. Salvilla, it was held that if in a e. on a street, road, highway or alley
robbery with serious physical injuries, the and the intimidation is made with the use of
offenders herded the women and children into an firearms, the offender shall be punished by
office and detained them to compel the offended the max period of the proper penalties
party to come out with the money, the crime of prescribed in art 294
serious illegal detention was a necessary means
to facilitate the robbery; thus, the complex crimes Notes:
of robbery with serious physical injuries and * Must be alleged in the information
serious illegal detention.
* Can’t be offset by generic mitigating
* But if the victims were detained because of the
timely arrival of the police, such that the * Art 295 will not apply to: robbery w/ homicide,
offenders had no choice but to detain the rape or SPI under par 1 of art 263
victims as hostages in exchange for their
safe passage, the detention is absorbed Article 296
by the crime of robbery and is not a ROBBERY BY A BAND
separate crime. This was the ruling in
People v. Astor. Notes:
BAND is defined as consisting of at least four
On ROBBERY WITH ARSON armed malefactors organized with the intention of
carrying out any unlawful design. Their
* Another innovation of Republic Act No. 7659 is participation in the commission of the crime
the composite crime of robbery with arson if must be actual. The offender must be principal
arson is committed by reason of or on occasion of by direct participation, so that, a principal by
the robbery. The composite crime would only be inducement cannot be convicted of this crime
committed if the primordial intent of the offender is where the aggravating circumstance of band shall
to commit robbery and there is no killing, rape, or be appreciated against him, since the law
intentional mutilation committed by the offender requires as a condition to its commission the
during the robbery. Otherwise, the crime would actual participation of the offender in the
be robbery with homicide, or robbery with rape, execution of the crime. In such a case, the
or robbery with intentional mutilation, in that conviction of a principal by inducement will only
order, and the arson would only be an be limited to his criminal liability as a co-
aggravating circumstance. It is essential that conspirator.
robbery precedes the arson, as in the case of rape
and intentional mutilation, because the Liability for the acts of the other members of
amendment included arson among the rape and the band
intentional mutilation which have accompanied a. he was a member of the band
the robbery. b. he was present at the commission of a
robbery by that band
* Moreover, it should be noted that arson has c. other members of the band committed an
been made a component only of robbery with assault
violence against or intimidation of persons in said d. he did not attempt to prevent the assault
Article 294, but not of robbery by the use of force
upon things in Articles 299 and 302. Conspiracy to commit robbery with homicide
– even if less than 4 armed men
* So, if the robbery was by the use of force upon
things and therewith arson was committed, two Conspiracy to commit robbery only but
distinct crimes are committed. homicide was committed also on the occasion
thereof – all members of the band are liable for
robbery with homicide
Article 295
QUALIFIED ROBBERY WITH VIOLENCE OR * Even if the agreement refers only to the robbery,
INTIMIDATION nonetheless, where the robbery is committed by a
Qualifying circumstances in robbery with band and a person is killed, any member who
violence or intimidation of persons, if any of the was present at the commission of the robbery
offenses defined in subdivisions 3, 4 and 5 of Art and who did not do anything to prevent the
294 is committed: killing of the victim on the occasion of the
robbery shall be held liable for the crime of
robbery with homicide. (People vs. Cinco, 194 not remote. In coercion, there is no intent to gain
SCRA 535) whereas in this form of robbery, intent to gain is
an indispensable element.
* Conspiracy is presumed when 4 or more armed
persons committed robbery
Article 299
* Unless the others attempted to prevent the ROBBERY IN AN INHABITED HOUSE OR
assault – guilty of robbery by band only PUBLIC BUILDING OR EDIFICE DEVOTED TO
WORSHIP
* Band is a generic aggravating circumstance in ELEMENTS:
the crime of robbery with homicide or rape. But 1. That the offender entered (a) an
in the other circumstances provided under Article inhabited house, or (b) public buildings,
294 particularly paragraphs 3, 4 and 5, band is a or (c) edifice devoted to religious worship.
special aggravating circumstance which must be 2. That the entrance was effected by any of
alleged in the information. the following means:

* Band is a special aggravating circumstance if a. Through an opening not intended for entrance
the robbery results in the infliction of serious or egress.
physical injuries. b. By breaking any wall, roof, or floor or
breaking any door or window.
* The arms contemplated under this article refers c. By using false keys, picklocks or similar tools
to any deadly weapon and is not limited to or.
firearms, whether long or short. d. By using any fictitious name or pretending
the exercise of public authority.
Article 297
ATTEMPTED OR FRUSTRATED ROBBERY 3. That once inside the building, the
WITH HOMICIDE offender took personal property
Notes: belonging to another with intent to gain.
* Whether robbery is attempted or frustrated,
penalty is the same Notes:
* In this kind of Robbery, no violence or
* When the robbery is attempted or frustrated, intimidation against persons is ever used.
Art. 294 has no application because the robbery
and the homicide must be both consummated. * Includes dependencies (stairways, hallways,
etc.)
* Where the homicide is only attempted or
frustrated, Article 297 does not apply. In the * A small store located on the ground floor of a
same manner, where the attempted or frustrated house is a dependency of the house, there being
robbery results in the commission of serious no partition between the store and the house and
physical injuries, Article 297 has no application. in going to the main stairway, one has to enter
In such a case, the crime shall be treated under the store which has a door. (U.S. vs. Ventura,
the provisions of Article 48 on ordinary complex 39 Phil. 523).
crimes. Consequently, the penalty prescribed by INHABITED HOUSE – any shelter, ship or vessel
Article 48 shall be observed. constituting the dwelling of one or more person
even though temporarily absent – dependencies,
courts, corals, barns, etc.
Article 298
EXECUTION OF DEEDS BY MEANS OF * NOT INCLUDED – ORCHARD, LANDS FOR
VIOLENCE OR INTIMIDATION CULTIVATION.
ELEMENTS:
1. That the offender has intent to defraud * Important for robbery by use of force upon
another. things, it is necessary that offender enters the
2. That the offender compels him to sign, building or where object may be found. NO
execute, or deliver any public instrument ENTRY, NO ROBBERY
or document.
3. That the compulsion is by means of * In the absence of evidence to show how bandits
violence or intimidation. effected an entrance into the convent which they
robbed, there can be no conviction under this
* The element of intent to gain or fraudulent intent article. The act would be treated as Theft. ( U.S.
is what distinguishes this felony from grave vs. Callotes, 2 PHIL 16 )
coercion. Although both crimes share a common
element which is the compelling of any person to "FORCE UPON THINGS" has a technical
do something against his will, nonetheless, in meaning in law. Not any kind of force upon
coercion, the fear created in the mind of the things will characterize the taking as one of
offended party is not immediate but remote. In robbery. The force upon things contemplated
this type of robbery, the fear is immediate and requires some element of trespass into the
establishment where the robbery was committed. On a sari-sari store, a vehicle bumped the wall.
In other words, the offender must have entered The wall collapsed. There was a small opening
the premises where the robbery was committed. there. At night, a man entered through that
If no entry was effected, even though force may opening without breaking the same. The crime
have been employed actually in the taking of the will already be robbery if he takes property from
property from within the premises, the crime will within because that is not an opening intended
only be theft. for the purpose.
Even of there is a breaking of wall, roof, floor or
* The term force upon things has a legal meaning. window, but the offender did not enter, it would
It means the employment of force to effect not give rise to robbery with force upon things.
entrance into the house or building by destroying
the door, window, roof, wall or floor of the * Note that in the crime of robbery with force
aforesaid house or building. In other words, the upon things, what should be considered is the
force upon things has no reference to personal means of entrance and means of taking the
property but to a house or building which is personal property from within. If those means do
ordinarily classified as real property. not come within the definition under the Revised
Penal Code, the taking will only give rise to theft.
* Entrance is necessary – mere insertion of
hand is not enough (whole body); not to get out * Those means must be employed in entering. If
but to enter – therefore, evidence to such effect is the offender had already entered when these
necessary means were employed, anything taken inside,
without breaking of any sealed or closed
Two predicates that will give rise to the crime receptacle, will not give rise to robbery.
as robbery:
Illustration:
1. By mere entering alone, a robbery will be
committed if any personal property is A found B inside his (A’s) house. He asked B
taken from within; what the latter was doping there. B claimed he is
an inspector from the local city government to
2. The entering will not give rise to robbery look after the electrical installations. At the time
even if something is taken inside. It is B was chanced upon by A, he has already
the breaking of the receptacle or closet or entered. So anything he took inside without
cabinet where the personal property is breaking of any sealed or closed receptacle will
kept that will give rise to robbery, or the not give rise to robbery because the simulation of
taking of a sealed, locked receptacle to be public authority was made not in order to enter
broken outside the premises. but when he has already entered.

* If by the mere entering, that would already P v. Lamahang – intent to rob being present is
qualify the taking of any personal property inside necessary
as robbery, it is immaterial whether the offender
stays inside the premises. The breaking of things Place: house or building; not car
inside the premises will only be important to PUBLIC BUILDING – every building owned,
consider if the entering by itself will not rented or used by the government (though owned
characterize the crime as robbery with force upon by private persons) though temporarily vacant
things.
* Not robbery – passing through open door but
* Modes of entering that would give rise to the getting out of a window
crime of robbery with force upon things if
something is taken inside the premises: entering * If accused entered the house through a door,
into an opening not intended for entrance or and it was while escaping that he broke any wall,
egress, under Article 299 (a). floor or window after taking personal property
inside the house – there is no Robbery
Illustration: committed, only Theft.
The entry was made through a fire escape. The
fire escape was intended for egress. The entry * Outside door must be broken, smashed. Theft –
will not characterize the taking as one of robbery if lock is merely removed or door was merely
because it is an opening intended for egress, pushed
although it may not be intended for entrance. If
the entering were done through the window, even * Breaking of the door under Article299 (b) –
if the window was not broken, that would Originally, the interpretation was that in
characterize the taking of personal property order that there be a breaking of the door
inside as robbery because the window is not an in contemplation of law, there must be
opening intended for entrance. some damage to the door.

Illustration: * Before, if the door was not damaged but only

the lock attached to the door was broken, the
taking from within is only theft. But the ruling is in order to gain entrance will characterize the
now abandoned because the door is considered taking inside as robbery with force upon things.
useless without the lock. Even if it is not the door
that was broken but only the lock, the breaking of * If A and B told the occupant of the house that
the lock renders the door useless and it is they were the nephews of the spouse of the owner
therefore tantamount to the breaking of the door. of the house, and because of that, the closed door
Hence, the taking inside is considered robbery was opened, or that they were NBI agents
with force upon things. executing a warrant of arrest, and so the
occupant opened the door, any taking personal
FALSE KEYS – genuine keys stolen from the property thereat with intent to gain, would be
owner or any keys other than those intended by Robbery.
the owner for use in the lock
Question & Answer
PICKLOCKS – specially made, adopted for
commission of robbery
Certain men pretended to be from the
KEY – stolen not by force, otherwise, it’s robbery Price Control Commission and went to a
by violence and intimidation against persons warehouse owned by a private person. They told
the guard to open the warehouse purportedly to
* False key – used in opening house and not see if the private person is hoarding essential
furniture inside, otherwise, theft (for latter to be commodities there. The guard obliged. They went
robbery., must be broken and not just opened) inside and broke in . They loaded some of the
merchandise inside claiming that it is the product
* Use of picklocks or false keys refers to the of hoarding and then drove away. What crime
entering into the premises – If the was committed?
picklock or false key was used not to
enter the premises because the It is only theft because the premises
offender had already entered but was where the simulation of public authority was
used to unlock an interior door or committed is not an inhabited house, not a
even a receptacle where the valuable public building, and not a place devoted to
or personal belonging was taken, the religious worship. Where the house is a private
use of false key or picklock will not building or is uninhabited, even though there is
give rise to the robbery with force simulation of public authority in committing the
upon things because these are taking or even if he used a fictitious name, the
considered by law as only a means to crime is only theft.
gain entrance, and not to extract
personal belongings from the place ELEMENTS OF ROBBERY WITH FORCE UPON
where it is being kept. THINGS, SUBDIVISION (B) ART.
299
GEN. RULE: outside door. EXCEPTION: inside 1. That the offender is inside a dwelling
door in a separate dwelling house, public building, or edifice devoted
to religious worship, regardless of the
* If in the course of committing the robbery circumstances under which he entered it
within the premises some interior doors are 2. That the offender takes personal
broken, the taking from inside the room where property belonging to another with intent
the door leads to will only give rise to theft. The to gain, under any of the following
breaking of doors contemplated in the law refers circumstances.
to the main door of the house and not the interior a. by the breaking of doors, wardrobes,
door. chests, or any other kind of locked or
sealed furniture or receptacle, or
* But if it is the door of a cabinet that is broken
and the valuable inside the cabinet was taken, b. by taking such furniture or objects away to
the breaking of the cabinet door would be broken or forced open outside the place
characterize the taking as robbery. Although of the robbery.
that particular door is not included as part of the
house, the cabinet keeps the contents thereof Notes:
safe.
* Entrance ( no matter how done)
> E.g. pretending to be police to be able to enter
(not pretending after entrance) * If the entering does not characterize the taking
inside as one of robbery with force upon things, it
* When the robbery is committed in a house is the conduct inside that would give rise to the
which is inhabited, or in a public building or in a robbery if there would be a breaking of sealed,
place devoted to religious worship, the use of locked or closed receptacles or cabinet in order to
fictitious name or pretension to possess authority get the personal belongings from within such
receptacles, cabinet or place where it is kept.
 Garage – must have 3 requirements. Exception:
* Offender may be servants or guests orchards/lands

* A friend who has invited in a house and who

enters a room where he finds a closed cabinet Article 302
where money is kept, is guilty of robbery if he ROBBERY IN AN UNINHABITED PLACE OR IN
forcibly opens the said cabinet and takes the A PRIVATE BUILDING
money contained therein. ELEMENTS:
1. That the offender entered an uninhabited
* When sealed box is taken out for the purpose of place or a building which was not a
breaking it, no need to open – already dwelling house, not a public building, or
consummated robbery not an edifice devoted to religious
worship.
Estafa – if box is in the custody of accused 2. that any of the following circumstances
was present:
Theft – if box found outside and forced open
a. That entrance was effected through an
opening not intended for entrance or
Article 300 egress.
ROBBERY IN AN UNINHABITED PLACE AND b. A wall, roof, floor, or outside door or
BY A BAND window was broken.
c. The entrance was effected through the
* When the robbery with force upon things is use of false keys, picklocks or other
committed in an uninhabited place and by a band, similar tools.
the robbery becomes qualified. In the same d. A door, wardrobe, chest, or any sealed or
manner, where robbery with violence against or closed furniture or receptacle was broken
intimidation of persons is committed by a band or or
in an uninhabited place, the crime becomes e. A closed or sealed receptacle was
qualified. removed, even if the same be broken open
elsewhere.
* The place considered uninhabited when it is not 3. That with intent to gain the offender
used as a dwelling. It may refer to a building or a took therefrom personal property
house which is not used as a dwelling. belonging to another.

* If a house is inhabited and its owners or Notes:

occupants temporarily left the place to take a
short vacation in another place, their casual * Second kind of robbery with force upon things
absence will not make the place or house
uninhabited. (U. S. vs. Ventura, 39 Phil. 523) * It must be taken note of, that the entrance by
using any fictitious name or pretending the
exercise of public authority is not among those
Article 301 mentioned in Article 302 because the place is
WHAT IS AN INHABITED HOUSE, PUBLIC Uninhabited and therefore without person
BUILDING OR BUILDING DEDICATED TO present. Likewise, in this class of Robbery, the
RELIGIOUS WORSHIP AND THEIR penalty depends on the amount taken
DEPENDENCIES disregarding the circumstances of whether the
Notes: robbers are armed or not as in the case in
Inhabited house – Any shelter, ship, or vessel Robbery in Inhabited Place.
constituting the dwelling of one or more persons,
even though the inhabitants thereof shall UNINHABITED PLACE – is an uninhabited
temporarily be absent therefrom when the building (habitable, not any of the 3 places
robbery is committed. mentioned)

Public building – Includes every building owned Ex. warehouse, freight car, store. Exception:
by the government or belonging to a private pigsty
person but used or rented by the government,
although temporarily unoccupied by the same. * A store may or may not be an inhabited place
depending upon the circumstances of whether or
dependencies – are all interior courts, corrals, not it is usually occupied by any person lodging
warehouses, granaries or enclosed places: therein at night. Although it may be used as a
a. contiguous to the building dwelling to sustain a conviction under Article
b. having an interior entrance connected 299, the information must allege that the same
therewith was used and occupied as a dwelling (People vs.
c. which form part of the whole Tubog, 49 Phil. 620), otherwise Art. 302 is
applicable.
* Same manner as 299 except that was entered 3. Any key other than those intended by
into was an uninhabited place or a building other owner for use in the lock forcibly opened
than the 3 mentioned in 299. Exception: does by the offender
not include use of fictitious name or pretending
the exercise of public authority Notes:
* Possession of false keys here not punishable
* Breaking of padlock (but not door) is only theft
* If key was entrusted and used to steal, not
False keys – genuine keys stolen from the owner robbery (not stolen)
or any other keys other than those intended by BRIGANDAGE
the owner for use in the lock forcibly opened
Brigandage – This is a crime committed by more
than three armed persons who form a band of
Article 303 robbers for the purpose of committing robbery in
ROBBERY OF CEREALS, FRUITS OR FIRE the highway or kidnapping persons for the
WOOD IN AN UNINHABITED PLACE OR purpose of extortion or to obtain ransom, or for
PRIVATE BUILDING any other purpose to be attained by means of
force and violence.
* Under Article 303, if the robbery under Article
299 and 302 consists in the taking of cereals, Article 306
fruits, or firewood, the penalty imposable is WHO ARE BRIGANDS
lower. BRIGANDS – more than three armed persons
forming a band
* The word cereals however must be understood Elements of brigandage:
to mean “seedlings” or “semilla.” It does not 1. There are least four armed persons;
include hulled rice. It may include palay or 2. They formed a band of robbers;
unhulled palay. 3. The purpose is any of the following:
a. To commit robbery in the highway;
* While the law uses the term uninhabited place, b. To kidnap persons for the purpose of
it however refers to uninhabited building and its extortion or to obtain ransom; or
dependencies. If the cereals, fruits or firewood c. To attain by means of force and violence
were taken outside a building and its any other purpose.
dependencies, the crime committed would only Presumption of Brigandage:
be theft even though the taking was done in an a. if members of lawless band and
uninhabited place. possession of unlicensed firearms (any of
them)
Article 304 b. possession of any kind of arms (not just
ILLEGAL POSSESSION OF PICKLOCKS OR firearm)
SIMILAR TOOLS
ELEMENTS: BRIGANDAGE ROBBERY IN BAND
1. That the offender has in his possession Purposes are given Only to commit robbery,
picklocks or similar tools. not necessarily in hi-way
2. That such picklocks or similar tools are Mere formation of a If the purpose is to commit
specially adopted to the commission of band for the above a part robbery
robbery. purpose
3. That the offender does not have lawful Necessary to prove that
cause for such possession. band actually committed
robbery
Note: Actual use of the same is not necessary
* There is no need for the band robbers to
* The law also prohibits the manufacture or execute the object of their association in order to
fabrication of such tools. If the manufacturer or hold them criminally liable for the crime of
maker or locksmith himself is the offender, a brigandage.
higher penalty is prescribed by law.
Supposing that in the crime of robbery, the * The primary object on the law on brigandage is
offender used a picklock to enter a building. Can to prevent the formation of bands of robbers.
he be charged of illegal possession of picklocks or Hence, if the formed band commits robbery with
similar tools? The answer is NO since the same the use of force upon persons or force upon
possession of these tools is already absorbed in things, their criminal liability shall be limited to
the graver crime of robbery. the commission of such crimes.

Article 305 * Likewise, if the offenders are charged with

FALSE KEYS robbery but the same is not established by the
WHAT CONSTITUTES: evidence and what appears clear are the elements
1. Picklocks, etc. of brigandage where the allegation in the
2. Genuine key stolen from owner. information necessarily includes such offense,
the offender can be convicted of the crime of
brigandage. * Brigandage under Presidential Decree No. 532
refers to the actual commission of the robbery on
* It does not mean however that to constitute the highway and can be committed by one person
violation of P.D. 532, there must be a band. One alone. It is this brigandage which deserves some
or two persons can be held liable under this law attention because not any robbery in a highway
if they perpetrated their acts of depredation in is brigandage or highway robbery. A distinction
Philippine Highways against persons who are not should be made between highway
pre-determined victims. robbery/brigandage under the decree and
ordinary robbery committed on a highway under
* If the agreement among more than three armed the Revised Penal Code.
men is to commit a particular robbery, brigandage
is not committed because the latter must be an * In People v. Puno, decided February 17, 1993,
agreement to commit robbery in general or the trial court convicted the accused of
indiscriminately. highway robbery/ brigandage under
Presidential Decree No. 532 and
Article 307 sentenced them to reclusion perpetua.
AIDING AND ABETTING A BAND OF BRIGANDS On appeal, the Supreme Court set aside
ELEMENTS: the judgment and found the accused
1. That there is a band of brigands. guilty of simple robbery as punished in
2. That the offender knows the band to be of Article 294 (5), in relation to Article 295,
brigands. and sentenced them accordingly. The
3. That the offender does any of the Supreme Court pointed out that the
following acts: purpose of brigandage “is, inter alia,
a. he in any manner aids, abets or protects indiscriminate highway robbery. And
such band of brigands, or that PD 532 punishes as highway
b. he gives them information of the robbery or Brigandage only acts of
movements of the police or other peace robbery perpetrated by outlaws
officers of the government or indiscriminately against any person or
c. He acquires or receives the property taken persons on a Philippine highway as
by such brigands. defined therein, not acts committed
Notes: against a predetermined or particular
PD 532 – brigandage. victim”. A single act of robbery against a
> Seizure of any person for: (a) ransom; (b) particular person chosen by the offender
extortion or other unlawful purpose; (c) taking as his specific victim, even if committed
away of property by violence or intimidation or on a highway, is not highway robbery or
force upon things or other unlawful means brigandage.
> Committed by any person
> On any Phil hi-way * In US v. Feliciano, 3 Phil. 422, it was pointed
out that highway robbery or brigandage is more
Distinction between brigandage under the than ordinary robbery committed on a highway.
Revised Penal Code and highway The purpose of brigandage is indiscriminate
robbery/brigandage under Presidential robbery in highways. If the purpose is only a
Decree No. 532: particular robbery, the crime is only robbery or
robbery in band, if there are at least four armed
(1) Brigandage as a crime under the Revised participants.
Penal Code refers to the formation of a band of
robbers by more than three armed persons for * Presidential Decree No. 532 introduced
the purpose of committing robbery in the amendments to Article 306 and 307 by
highway, kidnapping for purposes of extortion increasing the penalties. It does not require at
or ransom, or for any other purpose to be least four armed persons forming a band of
attained by force and violence. The mere robbers. It does not create a presumption that
forming of a band, which requires at least four the offender is a brigand when he an unlicensed
armed persons, if for any of the criminal firearm is used unlike the Revised Penal Code.
purposes stated in Article 306, gives rise to But the essence of brigandage under the Revised
brigandage. Penal Code is the same as that in the Presidential
Decree, that is, crime of depredation wherein the
(2) Highway robbery/brigandage under unlawful acts are directed not only against
Presidential Decree No. 532 is the seizure of specific, intended or preconceived victims, but
any person for ransom, extortion or for any against any and all prospective victims anywhere
other lawful purposes, or the taking away of on the highway and whoever they may potentially
the property of another by means of violence be.
against or intimidation of persons or force
upon things or other unlawful means THEFT
committed by any person on any Philippine Article 308
highway.
THEFT Under Article 438 and 439 of the Civil Code, the
ELEMENTS: finder of hidden treasure on the property of
1. That there be taking of personal another and by chance is entitled to one-half of
property. the treasure that he found. His duty is to tell the
2. That said property belongs to another. owner about the treasure. If he appropriates the
3. That the taking be done with intent to other half pertaining to the owner of the property,
gain. he is liable for theft as to that share. (People vs.
4. That the taking be done without the Longdew, C. A. G. R. No. 9380-R, June 4,
consent of the owner. 1953)
5. That the taking be accomplished without
the use of violence against or 3. Those who
intimidation of persons or force upon a) after having maliciously damaged the
things. property of another
PERSONS LIABLE: b) remove or make use of the fruits or object of
1. Those who the damage caused by them
a) with intent to gain
b) But without violence against or intimidation of * Theft of damaged property occurs only after the
persons nor force upon things accused has committed the crime of malicious
c) take personal property of another mischief. In malicious mischief, the offender
d) without the latter’s consent destroys the property of another because of
hatred, resentment or other evil motive against
 The taking from an enclosed corral of a the owner. So, a neighbor who shoots and kills a
carabao belonging to another, after force is goat which has destroyed his flower plants and
employed to destroy a part of the corral to thereafter slaughters and eats the meat of the
enter the same, is considered merely as theft wandering goat is guilty of theft.
because corral is not a building nor a
dependency of a building. (U. S. vs. Rosales, 4. Those who
et al., 1 Phil. 300) a) enter an enclosed estate or a field where
b) trespass is forbidden or which belongs to
2. Those who another and, without the consent of its
a) having found lost property owner
b) fail to deliver the same to local authorities c) hunts or fish upon the same or gather
or its owner fruits, cereals or other forest or farm
products
Notes:
Notes:
* Retention of money/property found is theft. Theft is consummated when offender is able to
Retention is failure to return (intent to gain) place the thing taken under his control and in
such a situation as he could dispose of it at once
* The word “lost” is used in the generic sense. It (though no opportunity to dispose) i.e, the
embraces loss by stealing or any act of a person control test
other than the owner, as well as the act of the
owner, or through some casual occurrence. * In the crime of theft, the law makes only of the
(People vs. Rodrigo, 16 SCRA 475) term “taking” and not “taking away.” The non-
inclusion of the word “away” is significant
* The felony is not limited to the actual finder. because it means that as soon as the culprit
Theft of a lost property may be committed even takes possession of the things taken by him, the
by a person who is not the actual finder. (People crime of theft is already consummated since the
vs. Avila, 44 Phil. 720) law does not require that the thief be able to carry
away the thing taken from the owner. (People vs.
* Knowledge of owner is not required, knowledge Jaranilla, 55 SCRA 563)
of loss is enough
* The consummation of the crime of theft takes
* It is not necessary that the owner of the lost place upon the voluntary and malicious taking of
property be known to the accused. What is the property belonging to another which is realized
important is that he knows or has reason to by the material occupation of the thing. The
know that the property was lost and for this fact property need not be actually taken away by the
alone, it is his duty to turn it over to the thief. It is enough that he has obtained, at some
authorities. If he does otherwise, like, if he sells particular moment, complete control and
the thing to another, then the crime of theft is possession of the thing desired, adverse to the
committed. right of the lawful owner. (People vs. Naval, 46
O. G. 2641)
* Finder in law is liable
P v. Dino – applies only in theft of bulky goods
Hidden Treasure (meaning there has to be capacity to dispose of
the things). Otherwise, P v. Espiritu – full that he is the owner of the thing taken by
possession is enough him. (L. B. Reyes)

* Servant using car without permission deemed * Salary must be delivered first to employee; prior
qualified theft though use was temporary to this, taking of Php is theft

Reyes says: there must be some character of * If offender claims property as his own (in good
permanency in depriving owner of the use of the faith) – not theft (though later found to be untrue.
object and making himself the owner, therefore If in bad faith – theft)
must exclude “joyride”
* Gain is not just Php – satisfaction, use,
Theft: if after custody (only material possession) pleasure desired, any benefit (e.g. joyride)
of object was given to the accused, it is actually
taken by him (no intent to return) e.g. felonious Gain means the acquisition of a thing useful for
conversion. But it is estafa if juridical the purpose of life. It includes the benefit which
possession is transferred e.g., by contract of in any other sense may be derived or expected
bailment from the act performed.

* Juridical possession of a thing is transferred to * Actual gain is not necessary (intent to gain
another when he receives the thing in trust or on necessary)
commission or for administration, or under a
quasi-contract or a contract of bailment. When * Allege lack of consent in info is important
possession by the offender is under any of these
circumstances and he misappropriates the thing Consent as an element of the crime of theft must
received, he cannot be held guilty of theft but of be in the concept of consent that is freely given
estafa because here, he has both the physical and not one which is inferred from mere lack of
and juridical possession of the property. opposition on the part of the owner.

* Includes electricity and gas * Where the charge of theft under the first
a. inspector misreads meter to earn sentence of Article 308, the information must
b. one using a jumper allege lack of consent. The allegation of “lack of
c. consent” is indispensable under the first
Personal Property paragraph of Article 308 since the language or
Personal property in the crime of theft includes epigraph of the law expressly requires that the
electric current or properties that may have no (unlawful) taking should be done without the
material or concrete appearance. The test is not consent of the owner. In view of the clear text of
whether the subject is corporeal or incorporeal but the law, an information which does not aver “lack
whether it is incapable of appropriation by of consent of the owner” would render the
another from the owner. Hence, checks, allegation insufficient and the information may
promissory notes, and any other commercial be quashed for failure to allege an essential
documents may be the object of theft because element of the crime. (Pua Yi Kun vs. People,
while they may not be of value to the accused, G. R. No. 26256, June 26, 1968)
they are without doubt of value to the offended
party. (U. S. vs. Raboy, 25 Phil. 1) In such a Robbery and theft distinguished.
case, the penalty shall be based on the amount of
money represented by the checks or promissory For robbery to exist, it is necessary that personal
note since, while it may not of value to the thief, property be taken against the will of the owner;
it is undoubtedly of value to the offended party. whereas in theft, it is sufficient that consent on
(People vs. Koc Song, 63 Phil. 369). the part of the owner is lacking.

* Selling share of co-partner is not theft Presumption:

The personal property must belong to A person found in possession of a thing taken in
another. the recent doing of a wrongful act is the taker of
the thing and the doer of the whole act.
1. A joint owner or partner who sells the palay to
other persons or a co-owner or co-heir whp * Possession is not limited to actual personal
appropriates the whole property cannot be custody. One who deposits stolen property in a
guilty of theft since the property cannot be place where it cannot be found may be deemed to
said to belong to another. (U. S. Reyes, 6 have such property in his possession.
Phil. 441)

2. One who takes away the property pledged by ELEMENTS OF HUNTING, FISHING OR
him to another without the latter’s consent, GATHERING FRUITS, ETC. IN ENCLOSED
does not commit theft for the simple reason ESTATE (PAR. NO.3, ART. 308)
1. That there is an enclosed estate or a field things, so long as the taking is without the
where trespass is forbidden or which consent of the owner/breed thereof. The crime
belongs to another; includes the killing or taking the meat or hide of
2. That the offender enters the same. large cattle without the consent of the owner.
3. That the offender hunts or fishes upon
the same or gathers fruits, cereals or Since the intent to gain is not essential, the killing
other forest or farm products, and or destruction of large cattle, even without taking
4. That the hunting or fishing or gathering any part thereof, is not a crime of malicious
of products is without the consent of the mischief but cattle-rustling.
owner.
The Presidential Decree, however, does not
Note: Fish not in fishpond, otherwise, qualified supersede the crime of qualified theft of large
cattle under Article 310 of the Revised Penal
Ortega Notes: Code, but merely modified the penalties provided
Fencing under Presidential Decree No. 1612 is for theft of large cattle and, to that extent,
a distinct crime from theft and robbery. If the amended Articles 309 and 310. Note that the
participant who profited is being prosecuted with overt act that gives rise to the crime of cattle-
person who robbed, the person is prosecuted as rustling is the taking or killing of large cattle.
an accessory. If he is being prosecuted Where the large cattle was not taken, but received
separately, the person who partook of the by the offender from the owner/overseer thereof,
proceeds is liable for fencing. the crime is not cattle-rustling; it is qualified theft
of large cattle.
In People v. Judge de Guzman, it was held that
fencing is not a continuing offense. Jurisdiction is Where the large cattle was received by the
with the court of the place where the personal offender who thereafter misappropriated it, the
property subject of the robbery or theft was crime is qualified theft under Article 310 if only
possessed, bought, kept, or dealt with. The place physical or material possession thereof was
where the theft or robbery was committed was yielded to him. If both material and juridical
inconsequential. possession thereof was yielded to him who
misappropriated the large cattle, the crime would
Since Section 5 of Presidential Decree No. 1612 be estafa under Article 315 (1b).
expressly provides that mere possession
of anything of value which has been Presidential Decree No. 533 is not a special law
subject of theft or robbery shall be prima in the context of Article 10 of the Revised
facie evidence of fencing, it follows that a Penal Code. It merely modified the
possessor of stolen goods is presumed to penalties provided for theft of large cattle
have knowledge that the goods found in under the Revised Penal Code and
his possession after the fact of theft or amended Article 309 and 310. This is
robbery has been established. The explicit from Section 10 of the
presumption does not offend the Presidential Decree. Consequently, the
presumption of innocence in the trial court should not have convicted the
fundamental law. This was the ruling in accused of frustrated murder separately
Pamintuan v. People, decided on July from cattle-rustling, since the former
11, 1994. should have been absorbed by cattle-
rustling as killing was a result of or on
Burden of proof is upon fence to overcome the occasion of cattle-rustling. It should
presumption; if explanation insufficient or only be an aggravating circumstance.
unsatisfactory, court will convict. This is a But because the information did not
malum prohibitum so intent is not material. But if allege the injury, the same can no longer
prosecution is under the Revised Penal Code, as be appreciated; the crime should,
an accessory, the criminal intent is controlling. therefore be only, simple cattle-rustling.
(People v. Martinada, February 13,
When there is notice to person buying, there may 1991)
be fencing such as when the price is way below
ordinary prices; this may serve as notice. He PENALTIES FOR QUALIFIED THEFT; (309)
may be liable for fencing even if he paid the price
because of the presumption. * The basis of the penalty is the value of the
things stolen.
Cattle Rustling and Qualified Theft of Large
Cattle – The crime of cattle-rustling is defined * If the property has some value but is not proven
and punished under Presidential Decree No. with reasonable certainty, the minimum
533, the Anti-Cattle Rustling law of 1974, as the penalty shall be imposed under par. 6 of Art.
taking by any means, method or scheme, of any 309 (People vs. Reyes, 58 Phil. 964).
large cattle, with or without intent to gain and
whether committed with or without violence * When there is no evidence as to the value of the
against or intimidation of person or force upon property stolen, the court is allowed to take
 judicial knowledge of the value of such trust, or on commission, or for administration or
property. (People vs. dela Cruz, 43 O. G. under any other obligation involving the duty to
3206) deliver or to return the thing received. If the
possession of the offender is not under any of
* When the resulting penalty for the accessory to these concepts, the crime is qualified theft.
the crime of theft has no medium period, the
court can impose the penalty which is found * no confidence, not qualified theft
favorable to the accused. (Cristobal vs.
People, 84 Phil. 473). THEFT – material possession’ ESTAFA – juridical
possession

Article 310 * Where only the material possession is

QUALIFIED THEFT transferred, conversion of the property gives rise
to the crime of theft. Where both the material and
THEFT IS QUALIFIED WHEN: juridical possession is transferred,
1. Committed by domestic servant, or misappropriation of the property would
2. With grave abuse of confidence, or constitute estafa. When the material and juridical
3. Property stolen is: possession of the thing transfers ownership of the
a. motor vehicle property to the possessor, any misappropriation
b. mail matter made by the possessor will not result in the
c. large cattle commission of any crime, either for theft of estafa.
d. coconut from plantation
e. fish from fishpond or fishery, or Qualified: if done by one who has access to
4. On occasion of calamities and civil place where stolen property is kept e.g., guards,
disturbance. tellers

Notes: * novation theory applies only if there’s a relation

* When the theft is committed by a domestic
servant, the offended party may either be the * industrial partner is not liable for QT (estafa)
employer where the offender is working as a
household help, or a third person as a guest in * when accused considered the deed of sale as
the house. The roomboy is a hotel is embraced sham (modus) and he had intent to gain, his
within the term “domestic servant.” absconding is QT

“GRAVE ABUSE” – high degree of confidence e.g. * motor vehicle in kabit system sold to another-
guests theft. Motor vehicle not used as PU in kabit
system but under K of lease-estafa
* In the case of abuse of confidence, the latter
must be “grave” in order to comply with the On carnapping and theft of motor vehicle
requirement of the law because abuse of
confidence is not enough. There must be an When the subject is motor vehicle, the Theft
allegation in the information that there is a becomes qualified. Under R.A. 6539, Anti-
relation between the accused and the offended Carnapping Act of 1972, the term motor vehicle
party wherein the latter confided his security as includes, within its protection, any vehicle which
to his person, life and property to the accused uses the streets, with or without the required
with such degree of confidence and that the license, or any vehicle which is motorized using
accused abused the same. the streets, such as a motorized tricycle. (Izon
vs. People, 107 SCRA 123)
* Abuse of confidence is determined from the trust
reposed by the offended party to the offender. It * The taking with intent to gain of a motor vehicle
may also refer to the nature of the work of the belonging to another, without the latter’s consent,
offender which must necessarily involve trust and or by means of violence or intimidation of persons,
confidence. or by using force upon things is penalized as
carnapping under Republic Act No. 6539 (An
* Abuse of confidence is also an element of estafa. Act Preventing and Penalizing Carnapping), as
To avoid confusion between theft with abuse of amended. The overt act which is being punished
confidence (qualified theft) and estafa with abuse under this law as carnapping is also the taking of
of confidence, where the offender misappropriates a motor vehicle under circumstances of theft or
a thing after he receives it from the victim, the robbery. If the motor vehicle was not taken by
student must remember that in qualified theft, the offender but was delivered by the owner or
only the physical or material possession of the the possessor to the offender, who thereafter
thing is transferred. If the offender acquires the misappropriated the same, the crime is either
juridical as well as the physical possession of the qualified theft under Article 310 of the Revised
thing and he misappropriates it, the crime Penal Code or estafa under Article 315 (b) of the
committed is estafa. Juridical possession of the Revised Penal Code. Qualified theft of a motor
thing is acquired when one holds the thing in vehicle is the crime if only the material or physical
possession was yielded to the offender; otherwise, prescribed to be determined on whether the acts
if juridical possession was also yielded, the crime of violence used is akin to that in robbery in
is estafa. Article 294, grave threats or grave coercion and
an incremental penalty of fine based on the value
* mail matter – private mail to be QT, Not of the gain obtained by the offender.
postmaster – Art. 226
* There is no crime of threat and usurpation of
* theft of large cattle real property since threat is an indispensable
element of usurpation of real rights. Hence,
Article 311 where threats are uttered to the owner of real
THEFT OF PROPERTY OF THE NATIONAL property by one illegally occupying it, the crime
LIBRARY AND NATIONAL MUSEUM committed is not the complex crime of
usurpation of real property with grave threats
USURPATION because making a threat is an inherent element
Article 312 of usurpation of real property. (Castrodes vs.
OCCUPATION OF REAL PROPERTY OR Cubelo, 83 SCRA 670)
USURPATION OF REAL RIGHTS IN PROPERTY
Acts punished: * The complainant must be the person upon
1. Taking possession of any real property whom violence was employed. If a tenant was
belonging to another by means of violence occupying the property and he was threatened by
against or intimidation of persons; the offender, but it was the owner who was not in
2. Usurping any real rights in property belonging possession of the property who was named as the
to another by means of violence against or offended party, the same may be quashed as it
intimidation of persons. does not charge an offense. The owner would, at
most, be entitled to civil recourse only.
ELEMENTS:
1. That the offender takes possession of any On squatting
real property or usurps any real rights in
property. According to the Urban Development and
2. That the real property or real rights Housing Act, the following are squatters:
belong to another.
3. That violence against or intimidation of 1. Those who have the capacity or means to
persons is used by the offender in pay rent or for legitimate housing but are
occupying real property or usurpation squatting anyway;
real rights in property.
4. That there is intent to gain. 2. Also the persons who were awarded lots
but sold or lease them out;
* Since this is a crime against property, there
must be intent to gain. In the absence of the 3. Intruders of lands reserved for socialized
intent to gain, the act may constitute Coercion. housing, pre-empting possession by
occupying the same.
* Use the degree of intimidation to determine the
degree of the penalty to be applied for the * Note that violation of Article 312 is punishable
usurpation. only with fine. So, if physical injuries are inflicted
on the victim due to the violence employed by the
* Usurpation under Article 312 is committed in offender in the usurpation of real rights, the
the same way as robbery with violence or latter shall be punished separately for the crime
intimidation of persons. The main of physical injuries.
difference is that in robbery, personal
property is involved; while in usurpation * Violence employed results to the death of the
of real rights, it is real property. (People offended party. When such eventuality does
v. Judge Alfeche, July 23, 1992) occur, then the crime may rightfully be
denominated as usurpation of real rights
* The possession of the land or real rights must resulting to homicide, murder, parricide, or
be done by means of violence or intimidation. So, infanticide as the case may be.
if the evidence of the prosecution shows that the
accused entered the premises by means of Article 313
strategy, stealth or methods other than the ALTERING BOUNDARIES OR LANDMARKS
employment of violence, no crime was committed ELEMENTS:
by the offender. (People vs. Alfeche, Jr., 211 1. That there be boundary marks or
SCRA 770) monuments of towns, provinces, or
estates, or any other marks intended to
* Usurpation of real rights and property should designate the boundaries of the same.
not be complexed using Article 48 when violence 2. That the offender alters said boundary
or intimidation is committed. There is only a marks.
single crime, but a two-tiered penalty is
 is important because in estafa, the penalty is
CULPABLE INSOLVENCY dependent on the value of the property.

Article 314 * Since estafa is a material crime, it can be

FRAUDULENT INSOLVENCY (culpable divided into consummated, attempted or
insolvency) frustrated stages. In the latter case, the damage
can be in the form of temporary prejudice or
ELEMENTS suffering, or inconvenience capable of pecuniary
1. That the offender is a debtor; that is, he estimation.
was obligations due and payable.
2. That he absconds with his property. B. ELEMENTS OF ESTAFA WITH
3. That there be prejudice to his creditors. UNFAITHFULNESS: (315)
1. That the offender has an onerous
* To be liable for fraudulent insolvency, the obligation to deliver something of value.
disposal of the merchandise must be done with 2. That he alters its substance, quantity, or
malice. The mere circumstance that a person has quality.
disposed of his merchandise by removing them 3. That damage or prejudice is caused to
from the place where they were kept would another.
necessarily imply fraud. What is required is
actual prejudice to the creditor. The intention of * The accused does not receive the goods but
the accused alone is not enough. (People vs. delivers a thing under an onerous obligation
Guzman, C. A. 40 O. G. 2655) which is not in accordance with the substance,
quantity or quality agreed upon. It is the altering
* The law does not require the offender to be a of the substance, quality or quantity of the thing
merchant. The law says “any person,” and this delivered which makes the offender liable for the
refers to anyone who becomes a debtor and crime of estafa.
performs the acts made punishable by the law.
* The word “onerous” means that the offended
* The property which the offender may abscond party has fully complied with his obligations to
which consists of both real and personal pay. So, if the thing delivered whose substance
property. (People vs. Chong Chuy Lingobo, 45 was altered, is not yet fully or partially paid, then
Phil. 372) the crime of estafa is not committed.

* The law on fraudulent insolvency is different C. ELEMENTS OF ESTAFA WITH ABUSE OF

from the Insolvency Law. For the Insolvency Law CONFIDENCE UNDER SUBDIVISION NO.1 PAR.
to apply, the criminal act must have been (B), OF ART.315
committed after the institution of the insolvency 1. That money, goods, or other personal
proceedings against the offending debtor. But property be received by the offender in
under the present article, there is no requirement trust, or on commission, or for
that the accused should be adjudged bankrupt or administration, or under any other
insolvent. obligation involving the duty to make
delivery of or to return, the same.
SWINDLING AND OTHER DECEITS 2. That there be misappropriation or
conversion of such money or property by
ESTAFA is embezzlement under common law. It the offender, or dental on his part of
is a well-known crime to lawyers and such receipt.
businessmen. It is a continuing crime unlike 3. that such misappropriation or conversion
theft. Being a public crime, it can be prosecuted or dental is to the prejudice of another
de officio. and
4. That there is a demand made by the
Article 315 offended party to the offender.
A. ELEMENTS OF ESTAFA IN GENERAL:
(315) (The fourth element is not necessary when there
1. That the accused defrauded another (a.) is evidence of misappropriation of the goods by
by abuse of confidence, or (b) or means of the defendant. [Tubb v. People, et al., 101 Phil.
deceit and 114] ).
2. That damage or prejudice capable of
pecuniary estimation is caused to the * It is necessary in this kind of estafa, for the
offended party or third person money, goods or personal property to have been
received by the offender in trust, or on
* The concept of damage under this article does commission or for administration. He must
not mean actual or real damage. It may consist in acquire both material or physical as well as
mere disturbance of the property rights of the juridical possession of the thing received. In
offended party. However, the damage must be these instances, the offender, who is the
capable of pecuniary estimation. This requirement transferee, acquires a right over a thing which he
may set up even against the owner.
 i. Partners – No estafa of money or property
* A money market transaction however partakes received for the partnership when the
of the nature of a loan, and non-payment thereof business is commercial and profits
would not give rise to criminal liability for Estafa accrued. BUT if property is received for
through misappropriation or conversion. In specific purpose and is misappropriated –
money market placements, the unpaid investor estafa!
should institute against the middleman or dealer, j. Failure to account after the DEMAND is
before the ordinary courts, a simple action for circumstantial evidence of
recovery of the amount he had invested, and if misappropriation
there is allegation of fraud, the proper forum k. DEMAND is not a condition precedent to
would be the Securities and Exchange existence of estafa when
Commission. (Sesbreno vs. Court of Appeals, misappropriation may be established by
et al., 240 SCRA 606). other proof
l. In theft, upon delivery of the thing to the
D. 2ND ELEMENT OF ESTAFA WITH ABUSE OF offender, the owner expects an immediate
CONFIDENCE UNDER PARAGRAPH (B), return of the thing to him – otherwise,
SUBDIVISION N0.1, ART. 315 = 3 WAYS OF Estafa
COMMITTING: m. Servant, domestic or employee who
1. By misappropriating the thing received. misappropriates a thing he received from
2. By converting the thing received. his master is NOT guilty of estafa but of
3. By denying that the thing was received. qualified theft

Notes:  When in the prosecution for malversation the

public officer is acquitted, the private
Unfaithfulness or Abuse of Confidence individual allegedly in conspiracy with him
a. by altering the substance may be held liable for estafa
b. existing obligation to deliver – even if it is
not a subject of lawful commerce ESTAFA WITH ABUSE MALVERSATION
c. thing delivered has not been fully or OF CONFIDENCE
partially paid for – not estafa Offenders are entrusted offenders are entrusted
d. no agreement as to quality – No estafa if with funds or property with funds or property
delivery is unsatisfactory and are continuing and are continuing
offenses offenses
By misappropriating and converting Funds: always private Funds: public funds or
a. thing is received by offender under property
transactions transferring juridical Offender: private Offender: public officer
possession, not ownership individual, or public accountable for public
b. under PD 115 (Trust Receipts Law) – officer not accountable funds
failure to turn over to the bank the Committed by Committed by
proceeds of the sale of the goods covered misappropriating, appropriating, taking,
by TR – Estafa converting, denying misappropriating
c. same thing received must be returned having received money
otherwise estafa; sale on credit by agency
when it was to be sold for cash – estafa
d. Estafa – not affected by Novation of E. ELEMENTS OF ESTAFA BY TAKING UNDUE
Contract because it is a public offense ADVANTAGE OF THE SIGNATURE IN BLANK:
e. Novation must take place before criminal (315)
liability was incurred or perhaps prior to 1. That the paper with the signature of the
the filing of the criminal information in offended party be in blank.
court by state prosecutors 2. That the offended party should have
f. Misappropriating – to take something delivered it to offender.
for one’s own benefit 3. That above the signature of the offended
g. Converting – act of using or disposing of party a document is written by the
another’s property as if it was one’s own; offender without authority to do so.
thing has been devoted for a purpose or 4. That the document so written creates a
use different from that agreed upon liability of, or causes damage to, the
h. There must be prejudice to another – not offended party or any third person.
necessary that offender should obtain
gain * The element of this estafa is also abuse of
confidence. The offended party leaves a blank
* There is no estafa through negligence. There is paper with his signature to another, with specific
likewise no estafa where the accused did not instructions to make entries thereon according to
personally profit or gain from the the wishes of the offended party. But contrary to
misappropriation. such instructions and wishes, the accused makes
entries in writing which creates liabilities against
the owner of the signature.
 added requirement that such false statement or
* If the unauthorized writings were done by a fraudulent representation constitutes the very
person other than the one to whom the owner of motive or the only reason or cause which induces
the signature delivered the paper in blank, and it the offended party to part with the thing while
caused damage to the offended party, the crime they may be false representation after the
committed by the third party is not estafa but delivery of the goods or the thing by the aggrieved
falsification. party, such false statement or false
representation, no matter how fraudulent and
Note: If the paper with signature in blank was obnoxious it may appear, cannot serve as a basis
stolen – Falsification if by making it appear that for prosecution under this category of estafa. For
he participated in a transaction when in fact he the case to prosper against the accused, the
did not so participate prosecution must prove two indispensable
elements: deceit and damage to another. (Celino
vs. Court of Appeals, 163 SCRA 97)
F. ELEMENTS OF ESTAFA BY MEANS OF
DECEIT: (315) CREDIT means the ability to buy things or
1. that there must be a false pretense, merchandise on the basis of one’s character,
fraudulent means must be made or capacity to pay or goodwill in the business
executed prior to or community. So, if it is used to deceive another
2. That such false pretense, fraudulent act and the deception is the principal reason for the
or fraudulent means must be made or delivery of the goods which results in damage to
executed prior to or simultaneously with the offended party, the crime committed is estafa.
the commission of the fraud. Under paragraph (b)
3. That the offended party must have relied
on the false pretense, fraudulent act, or Altering the quality, fineness, or weight of
fraudulent means, that is, he was anything pertaining to his art or business.
induced to part with his money or
property because of the false pretense,
fraudulent act, or fraudulent means. Under paragraph (c)
4. That as a result thereof, the offended
party suffered damage. Pretending to have bribed any government
employee, without prejudice to the action for
Notes: calumny which the offended party may deem
proper to bring against the offender.
FALSE PRETENSES OR FRAUDULENT ACTS –
executed prior to or simultaneously with delivery
of the thing by the complainant G. ELEMENTS OF ESTAFA BY POSTDATING A
CHECK OR ISSUING A CHECK IN PAYMENT
* There must be evidence that the pretense of the OF AN OBLIGATION: (315)
accused that he possesses power/influence is 1. That the offender postdated a check, or
false issued a check in payment of an
obligation.
* The representation that accused possessed 2. That such postdatig or issuing a check
influence, to deceive and inveigle the complainant was done when the offender had no funds
into parting with his money must however be in the bank or his funds deposited
false to constitute deceit under No. 2 of Article therein were not sufficient to cover the
315, RPC. (Dela Cruz vs. Court of Appeals, et amount of the check.
al., 265 SCRA 299).
Notes:
Elements of estafa by means of false pretenses
or fraudulent acts under Article 315 (2) Note that this only applies if –
(1) The obligation is not pre-existing;
Acts punished under paragraph (a) (2) The check is drawn to enter into an
1. Using fictitious name; obligation;
2. Falsely pretending to possess power,
influence, qualifications, property, credit, (Remember that it is the check that is
agency, business or imaginary supposed to be the sole consideration for
transactions; or the other party to have entered into the
3. By means of other similar deceits. obligation. For example, Rose wants to
purchase a bracelet and draws a check
* In the prosecution of estafa under Article 315, without insufficient funds. The jeweler
no. 2(a), it is indispensable that the element of sells her the bracelet solely because of
deceit consisting in the false statement or the consideration in the check.)
fraudulent representation of the accused, be made
prior to, before or at least simultaneously with the (3) It does not cover checks where the
delivery of the thing by the offended party. The purpose of drawing the check is to
 guarantee a loan as this is not an
obligation contemplated in this
paragraph H. ELEMENTS OF OFFENSE DEFINED IN THE
FIRST PARAGRAPH OF SECTION 1: BP 22
* The check must be genuine. If the check is 1. That a person makes or draws and issues
falsified and is cashed with the bank or any check.
exchanged for cash, the crime is estafa thru 2. That the check is made or drawn and
falsification of a commercial document. issued to apply on account or for value.
3. That the person who makes or draws and
* The general rule is that the accused must be issues the check knows at the time of
able to obtain something from the offended party issue that he does not have sufficient
by means of the check he issued and delivered. funds in or credit with the drawee bank
Exception: when the check is issued not in for the payment of such check in full
payment of an obligation. upon its presentment.
4. That the check is subsequently
* It must not be promissory notes, or guaranties. dishonored by the drawee bank for
insufficiency of funds or credit, or would
* good faith is a defense. (PP. VS. VILLAPANDO, have been dishonored for the same
56 PHIL.31) reason had not the drawee, without any
valid reason, ordered the bank to stop
* dishonor for lack of funds - prima facie evidence payment.
of deceit or failure to make good within three
days after notice of. Note: Failure to make good within 5 banking
days prima facie evidence of knowledge of lack
* If the checks were issued by the defendant and and insufficiency
he received money for them, then stopped
payment and did not return the money, and he I. ELEMENTS OF THE OFFENSE DEFINED IN
had an intention to stop payment when he issued THE SECOND PARAGRAPH OF SECTION 1: BP
the check, there is estafa. 22
1. That a person has sufficient funds in or
* Deceit is presumed if the drawer fails to deposit credit with the drawee bank when he
the amount necessary to cover the check within makes or draws and issues a check.
three days from receipt of notice of dishonor or 2. That he fails to keep sufficient funds or
insufficiency of funds in the bank. to maintain a credit to cover the full
amount of the check if presented within
* If check was issued in payment of pre-existing a period of 90 days from the date
debt – no estafa appearing thereon.
3. That the check is dishonored by the
* It is therefore essential that the check be issued drawee bank.
in payment of a simultaneous obligation. The
check in question must be utilized by the Note: Failure to make good within 5 banking
offender in order to defraud the offended party. days prima facie evididence of knowledge of lack
So, if the check was issued in payment of a and insufficiency
promissory note which had matured and the
check was dishonored, there is not estafa since Distinction between estafa under Article 315
the accused did not obtain anything by means of (2) (d) of the Revised Penal Code and violation
said check. (People vs. Canlas, O. G. 1092) of Batas Pambansa Blg. 22:

* If a bouncing check is issued to pay a pre- (1) Under both Article 315 (2) (d) and Batas
existing obligation, the drawer is liable under B. Pambansa Blg. 22, there is criminal
P. Blg. 22 which does not make any distinction as liability if the check is drawn for non-pre-
to whether a bad check is issued in payment of existing obligation.
an obligation or to guarantee an obligation. (Que
vs. People, 73217-18, Sept. 21, 1987) If the check is drawn for a pre-existing
* Offender must be able to obtain something from obligation, there is criminal liability only
the offended party by means of the check he under Batas Pambansa Blg. 22.
issues and delivers
(2) Estafa under Article 315 (2) (d) is a crime
* The check must be issued in payment of an against property while Batas Pambansa
obligation. If the check was issued without any Blg. 22 is a crime against public interest.
obligation or if there is lack of consideration and The gravamen for the former is the deceit
the check is subsequently dishonored, the crime employed, while in the latter, it is the
of estafa is not committed. issuance of the check. Hence, there is no
double jeopardy.
* If postdating a check issued as mere
guarantee/promissory note – no estafa
(3) In the estafa under Article 315 (2) (d), of Batas Pambansa Blg. 22 is a malum
deceit and damage are material, while in prohibitum and is being punished as a crime
Batas Pambansa Blg. 22, they are against the public interest for undermining the
immaterial. banking system of the country, while under the
Revised Penal Code, the crime is malum in se
(4) In estafa under Article 315 (2) (d), which requires criminal intent and damage to the
knowledge by the drawer of insufficient payee and is a crime against property.
funds is not required, while in Batas
Pambansa Blg. 22, knowledge by the In estafa, the check must have been issued as a
drawer of insufficient funds is reqired. reciprocal consideration for parting of goods
(kaliwaan). There must be concomitance. The
* When is there prima facie evidence of knowledge deceit must be prior to or simultaneous with
of insufficient funds? damage done, that is, seller relied on check to
part with goods. If it is issued after parting with
* There is a prima facie evidence of knowledge of goods as in credit accommodation only, there is
insufficient funds when the check was presented no estafa. If the check is issued for a pre-existing
within 90 days from the date appearing on the obligation, there is no estafa as damage had
check and was dishonored. already been done. The drawer is liable under
Exceptions Batas Pambansa Blg. 22.

1. When the check was presented after 90 For criminal liability to attach under Batas
days from date; Pambansa Blg. 22, it is enough that the check
was issued to "apply on account or for value" and
2. When the maker or drawer -- upon its presentment it was dishonored by the
drawee bank for insufficiency of funds, provided
a. Pays the holder of the check the that the drawer had been notified of the dishonor
amount due within five banking and inspite of such notice fails to pay the holder of
days after receiving notice that the check the full amount due thereon within five
such check has not been paid by days from notice.
the drawee;
Under Batas Pambansa Blg. 22, a drawer must
b. Makes arrangements for be given notice of dishonor and given five banking
payment in full by the drawee of days from notice within which to deposit or pay
such check within five banking the amount stated in the check to negate the
days after notice of non-payment presumtion that drawer knew of the insufficiency.
After this period, it is conclusive that drawer
* The drawee must cause to be written or knew of the insufficiency, thus there is no more
stamped in plain language the reason for the defense to the prosecution under Batas
dishonor. Pambansa Blg. 22.

* If the drawee bank received an order of stop- * The mere issuance of any kind of check
payment from the drawer with no reason, it must regardless of the intent of the parties, whether
be stated that the funds are insufficient to be the check is intended to serve merely as a
prosecuted here. guarantee or as a deposit, makes the drawer
liable under Batas Pambansa Blg. 22 if the check
* If the drawer has valid reasons for stopping bounces. As a matter of public policy, the
payment, he cannot be held criminally liable issuance of a worthless check is a public
under B.P. Blg. 22. nuisance and must be abated.

* The unpaid or dishonored check with the * Each act of drawing and issuing a bouncing
stamped information re: refusal to pay is prima check constitutes a violation of B. P. Blg. 22.
facie evidence of (1) the making or issuance of the
check; (2) the due presentment to the drawee for * In De Villa v. CA, decided April 18, 1991, it
payment & the dishonor thereof; and (3) the fact was held that under Batas Pambansa Blg. 22,
that the check was properly dishonored for the there is no distinction as to the kind of check
reason stamped on the check. issued. As long as it is delivered within Philippine
territory, the Philippine courts have jurisdiction.
On issuance of a bouncing check Even if the check is only presented to and
dishonored in a Philippine bank, Batas
The issuance of check with insufficient funds may Pambansa Blg. 22 applies. This is true in the
be held liable for estafa and Batas Pambansa Blg. case of dollar or foreign currency checks. Where
22. Batas Pambansa Blg. 22 expressly provides the law makes no distinction, none should be
that prosecution under said law is without made.
prejudice to any liability for violation of any
provision in the Revised Penal Code. Double * In People v. Nitafan, it was held that as long
Jeopardy may not be invoked because a violation as instrument is a check under the negotiable
instrument law, it is covered by Batas Pambansa b. Using false pretense;
Blg. 22. A memorandum check is not a
promissory note, it is a check which have the 3.
word “memo,” “mem”, “memorandum” written a. Abandoning or surreptitiously removing
across the face of the check which signifies that if any part of his baggage in the
the holder upon maturity of the check presents establishment;
the same to the drawer, it will be paid absolutely. b. After obtaining credit, food, refreshment,
But there is no prohibition against drawer from accommodation;
depositing memorandum check in a bank. * c. Without paying.
Whatever be the agreement of the parties in
respect of the issuance of a check is * Failure to pay food or accommodation in a
inconsequential to a violation to Batas Pambansa hotel, restaurant or inn usually gives rise to civil
Blg. 22 where the check bounces. liability but if the intent to defraud is clear like a
surreptitious removal of baggage from the hotel,
* Cross checks do not make them non-negotiable or resorting to deceitful means to evade payment,
and therefore they are within the coverage of B. the act shall be punished criminally as Estafa.
P. Blg. 22.

* The law does not distinguish between foreign K. ELEMENTS OF ESTAFA BY INDUCING
and local checks. (De Villa vs. Court of ANOTHER TO SIGN ANY DOCUMENTS: (315)
Appeals, et al., 195 SCRA 722). 1. That the offender induced the offended
party to sign a document.
* But overdraft or credit arrangement may be 2. That deceit be employed to make him
allowed by banks as to their preferred clients and sign the document.
Batas Pambansa Blg. 22 does not apply. If check 3. That the offended party personally
bounces, it is because bank has been remiss in signed the document.
honoring agreement. 4. That prejudice be caused.

* The check must be presented for payment within Note: If offended party willingly signed the
a 90-day period. If presented for payment beyond document and there was deceit as to the
the 90 day period and the drawer’s funds are character or contents of the document –
insufficient to cover it, there is no Batas falsification; but where the accused made
Pambansa Blg. 22 violation. representation to mislead the complainants as to
the character of the documents - estafa
* Where check was issued prior to August 8, Under paragraph (b)
1984, when Circular No. 12 of the
Department of the Justice took effect, Resorting to some fraudulent practice to insure
and the drawer relied on the then success in a gambling game;
prevailing Circular No. 4 of the Ministry
of Justice to the effect that checks issued
as part of an arrangement/agreement of L. ELEMENTS OF ESTAFA BY REMOVING,
the parties to guarantee or secure CONCEALING OR DESTROYING DOCUMENTS:
fulfillment of an obligation are not (315)
covered by Batas Pambansa Blg. 22, no
criminal liability should be incurred by 1. That there be court records, office files,
the drawer. Circular should not be given documents or any other papers.
retroactive effect. (Lazaro v. CA,
November 11, 1993, citing People v. 2. That the offender removed, concealed or
Alberto, October 28, 1993) destroyed any of them.

3. That the offender had intent to defraud

J. BY OBTAINING FOOD OR CREDIT AT another.
HOTELS, INNS, RESTAURANTS ETC.
Acts punished under paragraph (e) * In order to commit a crime, the offender must
1. have the intention to defraud. In other words, the
a. Obtaining food, refreshment, or removal, concealment or destruction of the court
accommodation at a hotel, inn, restaurant, record should be done with the intent to defraud
boarding house, lodging house, or the victim. This is distinguished from the crime of
apartment house; removal, concealment or destruction of documents
b. Without paying therefor; under Article 226 wherein fraud is not an element
c. With intent to defraud the proprietor or of the crime, and which is committed only by
manager. public officers. What is punished under this
2. Article is the damage to public interest.
a. Obtaining credit at any of the
establishments; * If the act of removing, concealing or destroying
results from hatred, revenge, or other evil motive,
the crime committed is malicious mischief under 2. That the offender knew that the real
Article 327. property was encumbered, whether the
encumbrance is recorded or not.
Note: No intent to defraud – destroying or 3. That there must be express
removal = malicious mischief representation by the offender that the
When a lawyer, pretending to verify a certain real property is free from encumbrance.
pleading in a case pending before a court, 4. That the act of disposing of the real
borrows the folder of the case, and removes or property be made to the damage of
destroys a document which constitute evidence another.
in the said case, said lawyer is guilty of Estafa
under par. 3 (c) of Article 315, RPC. * In Saddul Jr. v. CA, 192 SCRA 277, it was
held that the act of using or disposing of another’s
SYNDICATED ESTAFA. property as if it were one’s own, or of devoting it
to a purpose or use different from that agreed
A syndicate of five or more persons formed with upon, is a misappropriation and conversion to the
intent to carry out an unlawful or illegal act, prejudice of the owner. Conversion is
transaction or scheme and defraudation which unauthorized assumption an exercise of the right
results in misappropriation of money contributed of ownership over goods and chattels belonging to
by stockholders or members of rural banks, another, resulting in the alteration of their
cooperatives, samahang nayon or former’s condition or exclusion of the owner’s rights.
association; or funds contributed by corporations
or associations for the general welfare. P. ELEMENTS OF SWINDLING (PAR.3) BY
WRONGFULLY TAKING BY THE OWNER HIS
M. DAMAGE OR PREJUDICE CAPABLE OF PERSONAL FROM ITS LAWFUL POSSESSOR:
PECUNIARY ESTIMATION: (315) (second (316)
element of any form of estafa) 1. That the offender is the owner of
THE ELEMENTS OF DAMAGE OR PREJUDICE personal property.
MAY CONSIST OF THE FF.: 2. That said personal property is in the
1. The offender party being deprived of his lawful possession of another.
money or property, as a result of the 3. That the offender wrongfully takes it
defraudation. from its lawful possessor.
2. Disturbance in property right or 4. That prejudice is thereby caused to the
3. Temporary prejudice. possessor or third person.

N. ELEMENTS OF SWINDLING (PAR.1) BY Under paragraph 4 – by executing any fictitious

CONVEYING, SELLING, ENCUMBERING, OR contract to the prejudice of another
MORTGAGING ANY REAL PROPERTY,
PRETENDING TO BE THE OWNER OF THE Under paragraph 5 – by accepting any
SAME: (316) compensation for services not rendered or for
labor not performed
1. That the thing be immovable, such as a
parcel of land or a building. Q. ELEMENTS OF SWINDLING (PAR. 6) BY
2. That the offender who is not the owner of SELLING, MORTGAGING OR ENCUMBERING
said property represented that he is the REAL PROPERTY OR PROPERTIES WITH
owner thereof. WHICH THE OFFENDER GUARANTEED THE
3. That the offender should have executed FULFILLMENT OF HIS OBLIGATION AS
an act of ownership (selling, leasing, SURETY: (316)
encumbering or mortgaging the real 1. That the offender is a surety in a bond
property). given in a criminal or civil action.
4. That the act be made to the prejudice of 2. That he guaranteed the fulfillment of
the owner or a third person. such obligation with his real property or
properties.
ESTAFA INFIDELITY IN THE 3. That he sells, mortgages, or, in any other
CUSTODY OF DOCUMENTS manner encumbers said real property.
Private individual Public officer entrusted 4. That such sale, mortage or encumbrance
was entrusted is (a) without express authority from the
Intent to defraud No intent to defraud court, or (b) made before the cancellation
of his bond, or (c) before being relieved
O. ELEMENTS OF SWINDLING (PAR. 2) BY from the obligation contracted by him.
DISPOSING OF REAL PROPERTY AS FREE
FROM ENCUMBRANCE, ALTHOUGH SUCH R. ELEMENTS OF SWINDLING A MINOR: (317)
ENCUMBRANCE BE NOT RECORDED: (316) 1. That the offender takes advantage of the
1. that the thing disposed of be real inexperience or emotions or feelings of a
property. minor.
2. That he induces such minor (a) to assume
an obligation, or (b) to give release, or (c)
 to execute a transfer of any property * It would be the mortgagor who is made liable if
right. the personal property is transferred to the
3. That the consideration is (a) some loan of prohibited place. The liability extends to third
money (b) credit or (c) other personal persons who shall knowingly remove the
property. mortgaged to another city or province.
4. That the transaction is to the detriment
of such minor. * If the chattel mortgage is not registered, there is
no violation of Article 319
* The property referred to in this article is not
real property. It is limited to personal property
since a minor cannot convey real property without ARSON AND OTHER CRIMES INVOLVING
judicial intervention. So, if what is involved is real DESTRUCTIONS
property, the crime of swindling a minor under (Note: PD 1613 expressly repealed or amended
this article is not committed even if the offender Arts 320-326, but PD 1744 revived Art 320)
succeeds in inducing the minor to deal with such A. ELEMENTS OF ARSONS OF PROPERTY OF
real property since no damage or detriment is SMALL VALUES
caused against the minor. 1. That an uninhabited hut, storehouse, barn,
shed or any other property is burned
S. ELEMENTS OF OTHER DECEITS: (318) 2. That the value of the property burned does not
1. not mentioned above; exceed 25 pesos
2. interpretation of dreams, forecast, 3. That the burning was done at a time or under
future-telling for profit or gain. circumstances which clearly exclude all
danger of the fire spreading
* The meaning of other deceits under this article
has reference to a situation wherein fraud or B. ELEMENTS OF CRIME INVOLVING
damage is done to another by any other form of DESTRUCTION
deception which is not covered by the preceding 1. That the offender causes destruction of the
articles. property
2. That the destruction was done by means of:
* Another form of deceit would be in the nature of a. explosion
interpreting dreams, or making forecasts, telling b. discharge of electric current
fortunes or simply by taking advantage of the c. inundation
credulity of the public by any other similar d. sinking or stranding of a vessel
manner, done for profit or gain. e. damaging the engine of the vessel
f. taking up rails from the railway track
CHATTEL MORTGAGE g. destroying telegraph wires and posts or
those of any other system
Article 319 h. other similar effective means of
A. SELLING OR PLEDGING PERSONAL destruction
PROPERTY ALREADY PLEDGED
ELEMENTS: C. ELEMENTS OF BURNING ONE’S
1. That personal property is already pledged PROPERTY AS A MEANS TO COMMIT
under the terms of the chattel mortgage law. ARSON
2. That the offender, who is the mortgagee of 1. That the offender set fire to or destroyed his
such property, sells or pledges the same or own property
any part thereof. 2. That the purpose of the offender in doing so
3. That there is no consent of the mortgagee was to commit arson or to cause a great
written on the back of the mortgage and noted destruction
on the record thereof in the office of the 3. That the property belonging to another was
register of deeds. burned or destroyed

B. KNOWINGLY REMOVING MORTGAGED D. ELEMENTS OF ARSON

PERSONAL PROPERTY 1. That the property burned is the exclusive
ELEMENTS: property of the offender
1. that personal property is mortgaged under the 2. That (a) the purpose of the offender is burning
chattel mortage law. it is to defraud or cause damage to another or
2. That the offender knows that such property is (b) prejudice is actually caused, or (c) the thing
so mortaged. burned is a building in an inhabited place
3. That he removes such mortgaged personal to
any province or city other than the one in Palattao notes:
which it was located at the time of the
execution of the mortgage. Arson is defined as the intentional or malicious
4. that the removal is permanent. destruction of a property by fire.
5. That there is no written consent of the Legal effect if death results from arson.
mortgagee or his executors, administration or
assigns to such removal.
The crime committed is still arson. Death is MALICIOUS MISCHIEF – willful damaging of
absorbed in the crime of arson but the penalty to another’s property for the sake of causing
be imposed ranges from reclusion perpetua to damage due to hate, revenge or other evil motive
death. (Sec. 5, P.D. No. 1613)
* No negligence
How arson is established.
Example. Killing the cow as revenge
Arson is established by proving the corpus delicti,
usually in the form of circumstancial evidence * If no malice – only civil liability
such as the criminal agency, meaning the
substance used, like gasoline, kerosene or other Meaning of “damage” in malicious mischief.
form of bustible materials which caused the fire. > It means not only loss but a diminution of the
It can also be in the form of electrical wires, value of one’s property. It includes defacing,
mechanical, chemical or electronic contrivance deforming or rendering it useless for the purpose
designed to start a fire; ashes or traces of such for which it was made.
objects which are found in the ruins of the * But after damaging the thing, he used it = theft
burned premises.
* There is destruction of the property of another
Notes: but there is no misappropriation. Otherwise, it
* If the crime of arson was employed by the would be theft if he gathers the effects of
offender as a means to kill the offended party, destruction.
the crime committed is murder. The burning
of the property as the means to kill the victim * Damage is not incident of a crime (breaking
is what is contemplated by the word “fire” windows in robbery)
under Article 248 which qualifies the crime to
murder. (People vs. Villarosa, 54 O. G. Article 328
3482) SPECIAL CASES OF MALICIOUS MISCHIEF
1. Obstruct performance of public functions.
* When the burning of the property was done by 2. Using poisonous or corrosive substances.
the offender only to cause damage but the 3. Spreading infection or contagious among
arson resulted to death of a person, the crime cattle.
committed is still arson because the death of 4. Damage to property of national museum or
the victim is a mere consequence and not the library, archive, registry, waterworks, road,
intention of the offender. (People vs. promenade, or any other thing used in
Paterno, 47 O. G. 4600) common by the public.

* There is no special complex crime of arson with * The cases of malicious mischief enumerated in
homicide. What matters in resolving cases this article are so-called qualified malicious
involving intentional arson is the criminal mischief. The crime becomes qualified either
intent of the offender. because of the nature of the damage caused to
obstruct a public; or because of the kind of
* There is such a crime as reckless imprudence substance used to cause the damage. The crime
resulting in the commission of arson. When is still malicious mischief because the offender
the arson results from reckless imprudence has no intent to gain but derives satisfaction
and it leads to death, serious physical from the act because of hate, revenge or other evil
injuries and damage to the property of motive.
another, the penalty to be imposed shall not Note: Qualified malicious mischief – no uprising
be for the crime of arson under P. D. No. or sedition (#1)
1613 but rather, the penalty shall be based
on Article 365 of the Revised Penal Code as a Article 329
felony committed by means of culpa. OTHER MISCHIEF
ELEMENTS:
MALICIOUS MISCHIEF 1. Not included in 328
Article 326 a. scattering human excrement
MALICIOUS MISCHIEF b. killing of cow as an act of revenge
ELEMENTS:
1. That the offender deliberately caused * The offender is punished according to the value
damage to the property of another. of the damage caused to the offended party. If the
2. That such act does not constitute arson damages cannot be estimated, the minimum
or other crimes involving destruction. penalty is arresto menor or a fine of not more
3. That the act damaging another’s than 200 pesos shall be imposed on the offender.
property be committed merely for the
sake of damaging it. Article 330
DAMAGE AND OBSTRUCTION TO MEANS OF
Notes: COMMUNICATION
done by damaging railways, telegraph, Persons exempt include:
telephone lines, electric wires, traction
cables, signal system of railways a. stepfather/mother (ascendants by
affinity)
Notes:
b. adopted children (descendants)
* removing rails from tracks is destruction (art
324) c. concubine/paramour (spouse)

* not applicable when telegraph/phone lines d. common law spouse (property is part of
don’t pertain to railways (example: for their earnings)
transmission of electric power/light)
* Only the relatives enumerated incur no liability
people killed as a result: if the crime relates to theft (not robbery),
a. murder – if derailment is means of intent swindling, and malicious mischief. Third parties
to kill who participate are not exempt. The relationship
b. none – art 48 between the spouses is not limited to legally
married couples; the provision applies to live-in
* If the damage was intended to cause derailment partners.
only without any intention to kill, it will be a
crime involving destruction under Article 324. If * Estafa should not be complexed with any other
the derailment is intentionally done to cause the crime in order for exemption to operate.
death of a person, the crime committed will be
murder under Article 248. TITLE ELEVEN
CRIMES AGAINST CHASTITY
* circumstance qualifying the offense if the
damage shall result in any derailment of cars, Crimes against chastity
collision or other accident – a higher penalty shall 1. Adultery (Art. 333);
be imposed 2. Concubinage (Art. 334);
3. Acts of lasciviousness (Art. 336);
Article 331 4. Qualified seduction (Art. 337);
DESTROYING OR DAMAGING STATUES, 5. Simple seduction (Art. 338);
PUBLIC MONUMENTS OR PAINTINGS 6. Acts of lasciviousness with the consent of
the offended party (Art. 339);
Article 332 7. Corruption of minors (Art. 340);
EXEMPTION FROM CRIMINAL LIABILITY IN 8. White slave trade (Art. 341);
CRIMES AGAINST PROPERTY 9. Forcible abduction (Art. 342);
10. Consented abduction (Art. 343).
Persons exempt from criminal liability
1. Spouse, ascendants and descendants or * The crimes of adultery, concubinage, seduction,
relatives by affinity in the same line abduction and acts of lasciviousness are the so-
2. The widowed spouse with respect to the called private crimes. They cannot be prosecuted
property w/c belonged to the deceased except upon the complaint initiated by the
spouse before the same passed into the offended party. The law regards the privacy of
possession of another the offended party here as more important than
3. Brothers and sisters and brothers-in-law the disturbance to the order of society. For the
and sisters-in-law, if living together law gives the offended party the preference
whether to sue or not to sue. But the moment the
Offenses involved in the exemption offended party has initiated the criminal
1. Theft ( not robbery ) complaint, the public prosecutor will take over and
2. Swindling continue with prosecution of the offender. That is
3. Malicious mischief why under Article 344, if the offended party
pardons the offender, that pardon will only be
Notes: valid if it comes before the prosecution starts.
The moment the prosecution starts, the crime has
* Exemption is based on family relations already become public and it is beyond the
offended party to pardon the offender.
* For the exemption to apply insofar as brothers
and sisters, and brothers-in-law and sisters-in- Article 333
law are concerned, they must be living together ADULTERY
at the time of the commission of the crime of ELEMENTS:
theft, estafa or malicious mischief. 1. That the woman is married (even if
marriage subsequently declared void)
* Parties to the crime not related to the offended 2. That she has sexual intercourse with a
party still remains criminally liable man not her husband.
3. That as regards the man with whom she supposedly to come back the next day. When
has sexual intercourses, he must know they were in Bulacan, they stayed in a motel,
her to be married. having sexual intercourse there. After that, they
proceeded again and stopped at Dagupan City,
Notes: where they went to a motel and had sexual
intercourse.
* There are two reasons why adultery is made
punishable by law. Primarily, it is a violation of * There are two counts of adultery committed in
the marital vow and secondarily, it paves the way this instance: one adultery in Bulacan, and
to the introduction of a spurious child into the another adultery in Dagupan City. Even if it
family. involves the same man, each intercourse is a
separate crime of adultery.
* Adultery is a crime not only of the married
woman but also of the man who had intercourse * Mitigated if wife was abandoned without
with a married woman knowing her to be married. justification by the offended spouse (man is
Even if the man proves later on that he does not entitled to this mitigating circumstance)
know the woman to be married, at the beginning,
he must still be included in the complaint or * Abandonment without justification is not
information. This is so because whether he exempting but only a mitigating circumstance. One
knows the woman to be married or not is a matter who invokes abandonment in the crime of
of defense and its up to him to ventilate that in adultery hypothetically admits criminal liability
formal investigations or a formal trial. for the crime charged. (U. S. vs. Serrano, et al.,
28 Phil. 230)
* If after preliminary investigation, the public
prosecutor is convinced that the man did not * While abandonment is peculiar only to the
know that the woman is married, then he could accused who is related to the offended party and
simply file the case against the woman. must be considered only as to her or him as
provided under Article 62, paragraph 3,
* The acquittal of the woman does not necessarily nonetheless, judicially speaking, in the crime of
result in the acquittal of her co-accused. adultery, there is only one act committed and
In order to constitute adultery, there must be a consequently both accused are entitled to this
joint physical act. Joint criminal intent is not mitigating circumstance. (People vs. Avelino, 40
necessary. Although the criminal intent may O.G. Supp. 11, 194)
exist in the mind of one of the parties to the
physical act, there may be no such intent in the Attempted: caught disrobing a lover
mind of the other party. One may be guilty of the
criminal intent, the other innocent, and yet the * There is no frustrated adultery because of the
joint physical act necessary to constitute the nature of the offense.
adultery may be complete. So, if the man had no
knowledge that the woman was married, he * In the case of People vs. Pontio Guinucud, et
would be innocent insofar as the crime of al., (58 Phil. 621), a private agreement was
adultery is concerned but the woman would still entered into between the husband and wife for
be guilty; the former would have to be acquitted them to separate from bed and board and for
and the latter found guilty, although they were each of them to go for his and her own separate
tried together. way. Thereafter, the wife Rosario Tagayum lived
with her co-accused Pontio Guinucud in a nearby
* A husband committing concubinage may be barangay. Their love affair ultimately embroiled
required to support his wife committing adultery the spouses’ conservative and reputable families
under the rule in pari delicto. in a human drama exposed in legal battles and
whispers of unwanted gossips. In dismissing the
* For adultery to exist, there must be a marriage complaint, the Court ruled that while a private
although it be subsequently annulled. There is no agreement between the husband and wife was
adultery, if the marriage is void from the null and void, the same was admissible proof of
beginning. the express consent given by the condescending
husband to the prodigal wife, a license for her to
* Adultery is an instantaneous crime which is commit adultery. Such agreement bars the
consummated and completed at the moment of husband from instituting a criminal complaint
the carnal union. Each sexual intercourse for adultery.
constitutes a crime of adultery. Adultery is not a
continuing crime unlike concubinage. * After filing the complaint for adultery and while
the case is pending trial and resolution by the
Illustration: trial court, the offended spouse must not have
sexual intercourse with the adulterous wife since
Madamme X is a married woman residing in an act of intercourse subsequent to the adulterous
Pasay City. He met a man, Y, at Roxas conduct is considered as implied pardon. (People
Boulevard. She agreed to go with to Baguio City, vs. Muguerza, et al., 13 C.A. Rep. 1079)
 their house and treated as an adopted child being
* It is seldom the case that adultery is a relative of the complaining wife, her illicit
established by direct evidence. The legal tenet relations with the accused husband does not
has been and still is “circumstancial and make her a mistress. (People vs. Hilao, et al.,
corroborative evidence as will lead the guarded (C.A.) 52 O.G. 904).
discretion of a reasonable and just man to the
conclusion that the criminal act of adultery has * It is only when a married man has sexual
been committed will bring about conviction for intercourse with a woman elsewhere that
the crime.” (U. S. vs. Feliciano, 36 Phil. 753) “scandalous circumstances” becomes an element
of crime.

Article 334 * For the existence of the crime of concubinage by

CONCUBINAGE having sexual intercourse under scandalous
ELEMENTS: circumstances, the latter must be imprudent and
1. That the man must be married. wanton as to offend modesty and sense of
2. That he committed any of the following morality and decency.
acts:
a. Keeping a mistress in the conjugal dwelling. * When spies are employed to chronicle the
b. Having sexual intercourse under activities of the accused and the evidence
scandalous circumstances with a woman presented to prove scandalous circumstances are
who is not his wife. those taken by the detectives, it is obvious that
c. Cohabiting with her in any other place. the sexual intercourse done by the offenders was
3. That as regards the woman she must not under scandalous circumstances. (U.S. vs.
know him to be married. Campos-Rueda, 35 Phil. 51)

Note: “Scandal” consists in any reprehensible * Causal sexual intercourse with a woman in a
word/deed that offends public conscience, hotel is not concubinage. Likewise, keeping of a
redounds to the detriment of the feelings of mistress in a townhouse procured and furnished
honest persons and gives occasions to the by a married man who does not live or sleep with
neighbor’s spiritual damage and ruin her in said townhouse does not constitute
concubinage since there is no cohabitation.
* With respect to concubinage the same principle
applies: only the offended spouse can bring the * The rule is that, if a married man’s conduct
prosecution. This is a crime committed by the with a woman who is not his wife was not
married man, the husband. Similarly, it includes confined to occasional or transient interview for
the woman who had a relationship with the carnal intercourse but is carried n in the manner
married man. of husband and wife and for some period of time,
then such association is sufficient to constitute
* It has been asked why the penalty for adultery cohabitation. (People vs. Zuniga, CA 57 O.G.
is higher than concubinage when both crimes are 2497)
infidelities to the marital vows. The reason given
for this is that when the wife commits adultery, * If the evidence of the prosecution consists of a
there is a probability that she will bring a stranger marriage contract between the offender and the
into the family. If the husband commits offended party, and the additional fact of the
concubinage, this probability does not arise birth certificate of a child showing the accused to
because the mother of the child will always carry be the father of the child with the alleged
the child with her. So even if the husband brings cocubine, the same will not be sufficient to
with him the child, it is clearly known that the convict the accused of concubinage since the law
child is a stranger. Not in the case of a married clearly states that the act must be one of those
woman who may bring a child to the family under provided by law.
the guise of a legitimate child. This is the reason
why in the former crime the penalty is higher Article 335. Rape
than the latter.
This has been repealed by Republic Act No. 8353
* Unlike adultery, concubinage is a continuing or the Anti-Rape Law of 1997. See Article 266-
crime. A.

* If the charges consist in keeping a mistress in Article 336

the conjugal dwelling, there is no need for proof of ACTS OF LASCIVIOUSNESS
sexual intercourse. The conjugal dwelling is the ELEMENTS:
house of the spouse even if the wife happens to 1. That the offender commits any act of
be temporarily absent therefrom. The woman lasciviousness or lewdness.
however must be brought into the conjugal house 2. That it is done under any of the following
by the accused husband as a concubine to fall circumstances:
under this article. Thus, if the co-accused was a. by using force or intimidation, or
voluntarily taken and sheltered by the spouses in
 b.
when the offended party is deprived of each case. The demarcation line is not always
reason or otherwise unconscious, or easy to determine but in order to sustain a
c. when the offended party is under 12 years conviction for acts of lasciviousness, it is
of age. essential that the acts complained of be prompted
3. That the offended party is another by lust or lewd designs and the victim did not
person of either sex. consent to nor encouraged the act.

Note that there are two kinds of acts of * To be guilty of this crime however, the acts of
lasciviousness under the Revised Penal Code: (1) lasciviousness must be committed under any of
under Article 336, and (2) under Article 339. the circumstances that had there been sexual
intercourse, the crime would have been Rape.
1. Article 336. Acts of Lasciviousness Where circumstances however are such,
indicating a clear intention to lie with the
Under this article, the offended party may offended party, the crime committed as
be a man or a woman. The crime Attempted Rape.
committed, when the act performed with
lewd design was perpetrated under * This crime (Art. 336) can be committed by either
circumstances which would have brought sex unlike in Acts of Lasciviousness with Consent
about the crime of rape if sexual intercourse under Article 339. Thus, a lesbian who toyed
was effected, is acts of lasciviousness under with the private part of an eleven-year-old girl
this article. This means that the offended who enjoyed it since she was given $50 dollars
party is either – before the act, is guilty of Act of Lasciviousness
under this Article as the victim is below twelve
(1) under 12 years of age; or year old; and had sexual intercourse been
possible and done, the act would have been Rape.
(2) being over 12 years of age, the lascivious
acts were committed on him or her SEDUCTION
through violence or intimidation, or while
the offender party was deprived of reason, Article 337
or otherwise unconscious. QUALIFIED SEDUCTION OF A VIRGIN
Two classes of qualified seduction:
2. Article 339. Acts of Lasciviousness with 1. Seduction of a virgin over 12 and under
the Consent of the Offended Party: 18 years of age by certain persons,
such as a person in authority, priest,
Under this article, the victim is limited only to a teachers etc and
woman. The circumstances under which the 2. Seduction of a sister by her brother or
lascivious acts were committed must be that descendant by her ascendant,
of qualified seduction or simple seduction, regardless of her age or reputation
that is, the offender took advantage of his (incestuous seduction)
position of ascendancy over the offender
woman either because he is a person in Elements:
authority, a domestic, a househelp, a priest, 1.That the offended party is a virgin, (presumed
a teacher or a guardian, or there was a if she unmarried and of good reputation.)
deceitful promise of marriage which never 2.That she must be over 12 and under 18 years
would really be fulfilled. of age.
3.That the offender has sexual intercourse with
* Always remember that there can be no her.
frustration of acts of lasciviousness, rape or 4.That there is abuse of authority, confidence or
adultery because no matter how far the offender relationship on the part of the offender (
may have gone towards the realization of his person entrusted with education or custody
purpose, if his participation amounts to of victim; person in public authority, priest;
performing all the acts of execution, the felony is servant)
necessarily produced as a consequence thereof.
Persons liable:
* Intent to rape is not a necessary element of the 1. Those who abuse their authority:
crime of acts of lasciviousness. Otherwise, there a. persons in public authority
would be no crime of attempted rape. b. guardian
c. teacher
* In the crime of acts of lasciviousness, the d. person who, in any capacity, is
intention of the wrongdoer is not very material. entrusted with the education or
The motive that impelled the accused to commit custody of the woman seduced
the offense is of no importance because the 2. Those who abused the confidence
essence of lewdness is in the act itself. reposed in them:
a. priest
* What constitutes lewd or lascivious conduct b. house servant
must be determined from the circumstances of c. domestic
 defense. Lack of consent on the part of the
3. Those who abused their relationship: complainant is not an element of the crime.
a. brother who seduced his sister
b. ascendant who seduced his * The term domestic refers to a person usually
descendant living under the same roof with the offended
party. It includes all those persons residing with
* This crime also involves sexual intercourse. The the family and who are members of the same
offended woman must be over 12 but below 18 household, regardless of the fact that their
years. residence may only be temporary or that they
may be paying for their board and lodging.
* The distinction between qualified seduction and
simple seduction lies in the fact, among others, * A domestic should not be confused with a house
that the woman is a virgin in qualified seduction, servant. A domestic is not necessarily a house
while in simple seduction, it is not necessary that servant.
the woman be a virgin. It is enough that she is of
good repute. * Where the offended party is below 12 years of
age, regardless of whether the victim is a sister or
* For purposes of qualified seduction, virginity a descendant of the offender, the crime
does not mean physical virginity. It means that committed is rape.
the offended party has not had any experience
before. * If the offended party is married and over 12
years of age, the crime committed will be
* The virginity referred to here, is not to be adultery.
understood in so material a sense as to exclude
the idea of abduction of a virtuous woman of a * An essential element of a qualified seduction is
good reputation. Thus, when the accused claims virginity (doncella). It is a condition existing in a
he had prior intercourse with the complainant, woman who has had no sexual intercourse with
the latter is still to be considered a virgin (U.S. any man. It does not refer to the condition of the
vs. Casten, 34 Phil. 808). But if it was hymen as being intact.
established that the girl had a carnal relations
with other men, there can be no crime of * One who is charged with qualified seduction
Seduction as she is not a virgin. can be convicted of rape. But one who is charged
with rape cannot be convicted of qualified
* Although in qualified seduction, the age of the seduction under the same information. (People
offended woman is considered, if the offended vs. Ramirez, 69 SCRA 144)
party is a descendant or a sister of the offender –
no matter how old she is or whether she is a * Even if the woman has already lost her virginity
prostitute – the crime of qualified seduction is because of rape, in the eyes of the law, she
committed. remains a virtuous woman even if physically she
is no longer a virgin.
Illustration:
Article 338
If a person goes to a sauna parlor and finds there SIMPLE SEDUCTION
a descendant and despite that, had sexual ELEMENTS:
intercourse with her, regardless of her reputation 1. That the offended party is over 12 and
or age, the crime of qualified seduction is under 18 years of age.
committed. 2. That she must be of good reputation,
single or widow.
* In the case of a teacher, it is not necessary that 3. That the offender has sexual intercourse
the offended woman be his student. It is enough with her.
that she is enrolled in the same school. 4. That it is committed by means of deceit.

* Deceit is not necessary in qualified seduction. * Deceit generally takes the form of unfulfilled
Qualified seduction is committed even though no promise to marry. The promise of marriage must
deceit intervened or even when such carnal serve as the inducement. The woman must yield
knowledge was voluntary on the part of the on account of the promise of marriage or other
virgin. This is because in such a case, the law forms of inducement. (People vs. Hernandez, 29
takes for granted the existence of the deceit as an Phil. 109)
integral element of the crime and punishes it
with greater severity than it does the simple * Where the accused failed to have sex with this
seduction, taking into account the abuse of sweetheart over twelve (12) but below eighteen
confidence on the part of the agent. Abuse of (18) years old because the latter refused as they
confidence here implies fraud. were not yet married, and the accused procured
the performance of a fictitious marriage ceremony
* The fact that the offended party gave her because of which the girlfriend yielded, he is
consent to the sexual intercourse is not a guilty of Simple Seduction. (U.S. vs. Hernandez,
29 Phil. 109). Here, there was deceit employed. only because the offender took advantage of his
This act may now be considered Rape under R.A. authority, or there was abuse of confidence, or
8353, Sec. 2 par. 6. the employment of deceit, or the offender is
related to the victim.
* A promise of material things in exchange for the
woman’s surrender of her virtue does not * In the commission of the acts of lasciviousness
constitute deceit. either by force or intimidation, or with the
consent of the offended party, there must be no
* If a woman under 18 years of age but over 12 sexual intercourse, or the acts performed are short
agrees to a sexual intercourse with a man who of sexual intercourse. In the first situation, the
promised her precious jewelries but the man crime would either be qualified seduction or
reneges on his promise, there is no seduction simple seduction if the offender succeeds in
that the woman is of loose morals. (Luis B. Reyes) having sexual intercourse with the victim. In
these two cases, there is consent but the same is
Promise of marriage must precede sexual procured by the offender through the
intercourse. employment of deceit, abuse of confidence, abuse
> A promise of marriage made by the accused of authority or because of the existence of blood
after sexual intercourse had taken place, or after relationship.
the woman had yielded her body to the man by
mutual consent will not render the man liable for Article 340
simple seduction. CORRUPTION OF MINORS
Act punishable:
* The offended woman must be under 18 but not By promoting or facilitating the prostitution
less than 12 years old; otherwise, the crime is or corruption of persons underage to satisfy
statutory rape. the lust of another

* Unlike in qualified seduction, virginity is not * It is not required that the offender be the
essential in this crime. What is required is that guardian or custodian of the minor.
the woman be unmarried and of good reputation.
Simple seduction is not synonymous with loss of * It is not necessary that the minor be prostituted
virginity. If the woman is married, the crime will or corrupted as the law merely punishes the act
be adultery. of promoting or facilitating the prostitution or
corruption of said minor and that he acted in
Article 339 order to satisfy the lust of another.
ACTS OF LASCIVIOUSNESS WITH THE
CONSENT OF THE OFFENDED PARTY * A single act of promoting or facilitating the
ELEMENTS: corruption or prostitution of a minor is sufficient
1. that the offender commits acts of to constitute violation of this article.
lasciviousness or lewdness.
2. That the acts are committed upon a * What the law punishes is the act of pimp
woman who is virgin or single or widow (bugaw) who facilitates the corruption of a minor.
of good reputation, under 18 years of age It is not the unchaste act of the minor which is
but over 12 years, or a sister or being punished. So, a mere proposal to promote
descendant regardless of her reputation or facilitate the prostitution or corruption of a
or age. minor is sufficient to consummate the crime.
3. that the offender accomplishes the acts
by abuse of authority, confidence, * Young minor should enjoy a good reputation.
relationship, or deceit. Apparently, a prostitute above 12 and under 18
years of age cannot be the victim in the crime of
* When the acts of lasciviousness is committed corruption of minors.
with the use of force or intimidation or when the
offended party is under 12 years of age, the Article 341
object of the crime can either be a woman or a WHITE SLAVE TRADE
man. Acts penalized:
1. Engaging in the business of prostitution
* Where the acts of the offender were limited to 2. Profiting by prostitution
acts of lewdness or lasciviousness, and no carnal 3. Enlisting the service of women for the
knowledge was had; but had there been sexual purpose of prostitution
intercourse, the offense would have been
Seduction, he is guilty of Acts of Lasciviousness * The person liable under Article 341 is the one
under this article. who maintains or engages in the trade of
prostitution. A white slave is a woman held
* The crime of acts of lasciviousness under Article unwillingly for purposes of commercial
339 is one that is done with the consent of the prostitution. A white slaver on the other hand is
offended party who is always a woman. The lewd one engaged in white slave traffic, procurer of
acts committed against her is with her consent white slaves or prostitutes.
 establish the unchaste design or purpose of the
* The most common way of committing this crime offender. But it is sufficient that the intent to
would be through the maintenance of a bar or seduce the girl is present. The evil purpose of the
saloon where women engage in prostitution. For offender may be established or inferred from the
each intercourse, the women pay the maintainer overt acts of the accused.
or owner of a certain amount in this case, the
maintainer of owner of the bar or saloon is liable * If the offended woman is under 12 years old,
for white slave trade. (People vs. Go Lo, 56 O.G. even if she consented to the abduction, the crime
4056) is forcible abduction and not consented
abduction.
ABDUCTION
* Where the offended woman is below the age of
Article 342 consent, even though she had gone with the
FORCIBLE ABDUCTION offender through some deceitful promises
ELEMENTS: revealed upon her to go with him and they live
1. That the person abducted is any woman, together as husband and wife without the benefit
regardless of her age, civil status, or of marriage, the ruling is that forcible abduction
reputation. is committed by the mere carrying of the woman
2. That the abduction is against her will. as long as that intent is already shown. In other
3. That the abduction is with lewd designs. words, where the man cannot possibly give the
woman the benefit of an honorable life, all that
Note: Sexual intercourse is NOT necessary man promised are just machinations of a lewd
design and, therefore, the carrying of the woman
Crimes against chastity where age and is characterized with lewd design and would
reputation of victim are immaterial: rape, acts bring about the crime of abduction and not
of lasciviousness, qualified seduction of kidnapping. This is also true if the woman is
sister/descendant, forcible abduction deprived of reason and if the woman is mentally
retardate. Forcible abduction is committed and
Forcible abduction defined. not consented abduction.
> It is the taking away of any woman against her
will, from her house or the place where she may * Lewd designs may be demonstrated by the
be, for the purpose of carrying her to another lascivious acts performed by the offender on her.
place with intent to marry or corrupt her. Since this crime does not involve sexual
intercourse, if the victim is subjected to this, then
* A woman is carried against her will or brought a crime of rape is further committed and a complex
from one place to another against her will with crime of forcible abduction with rape is committed.
lewd design.
* Lewd design does not include sexual intercourse.
* Unlike in Rape and Seduction, in the crime of So, if sexual intercourse is committed against the
Abduction, whether Forcible or Consented, there offended party after her forcible abduction, the
is no sexual intercourse. The acts are limited to offender commits another crime separate and
taking away from a place the victim, but the distinct from forcible abduction. In this case, the
same must be with lewd designs, that is, with accused should be charged with forcible
unchaste design manifested by kissing and abduction with rape. (People vs. Jose, et al., 37
touching the victim’s private parts. SCRA 450)

* If the element of lewd design is present, the * If the accused carried or took away the victim
carrying of the woman would qualify as by means of force and with lewd design and
abduction; otherwise, it would amount to thereafter raped her, the crime is Forcible
kidnapping. If the woman was only brought to a Abduction with Rape, the former being a
certain place in order to break her will and make necessary means to commit the latter. The
her agree to marry the offender, the crime is only subsequent two (2) other sexual intercourse
grave coercion because the criminal intent of the committed against the will of the complainant
offender is to force his will upon the woman and would be treated as independent separate crimes
not really to restrain the woman of her liberty. of Rape. (People vs. Bacalso, 210 SCRA 206).

* Where lewd design was not proved or shown, * If the main object of the offender is to rape the
and the victim was deprived of her liberty, the victim, and the forcible abduction was resorted to
crime is Kidnapping with Serious Illegal by the accused in order to facilitate the
Detention under this Article 267, RPC. commission of the rape, then the crime
committed is only rape. (People vs. Toledo, 83
* The element of lewd designs, which is essential Phil. 777)
to the crime of abduction through violence refers
to the intention to abuse the abducted woman. If * Where the victim was taken from one place to
such intention is lacking or does not exist, the another, solely for the purpose of killing him and
crime may be illegal detention. It is necessary to not detaining him for any legal length of time, the
crime committed is murder. (People vs. Ong, 62 should not be understood in such a matter of fact
SCRA 174) as to completely exclude a woman who has had
previous sexual intercourse. If the previous
* True intention of the offender should be sexual intercourse was the result of the crime of
ascertained. If the detention is only incidental, rape, the intercourse committed with her against
the same should be considered as absorbed. he will and over her violent objection should not
Otherwise, it should be treated as a separate render her unchaste and a woman of bad
offense. When such a situation arises, we should reputation.
consider the application of Article 48 on complex
crimes. * If the virgin in under 12 years old, the crime
committed is forcible abduction because of the
* The taking away of the woman may be theory that a child below 12 years of age has no
accomplished by means of deceit at the beginning will of her own.
and then by means of violence and intimidation
later. * The purpose of the law on consented abduction
is to punish the offender for causing disgrace and
* The virginity of the complaining witness is not a scandal to the family of the offended party. The
determining factor in forcible abduction. law does not punish the offender for the wrong
done to the woman since in the eyes of the law,
* In order to demonstrate the presence of the she consented to her seduction.
lewd design, illicit criminal relations with the
person abducted need not be shown. The intent * The deceit which is termed by the law as
to seduce a girl is sufficient. solicitation or cajolery maybe in the form of
honeyed promises of marriage.
* If there is a separation in fact, the taking by the
husband of his wife against her will constitutes * In consented Abduction, it is not necessary that
grave coercion. the young victim, (a virgin over twelve and under
eighteen) be personally taken from her parent’s
Distinction between forcible abduction and home by the accused; it is sufficient that he was
illegal detention: instrumental in her leaving the house. He must
however use solicitation, cajolery or deceit, or
When a woman is kidnapped with lewd or honeyed promises of marriage to induce the girl
unchaste designs, the crime committed is forcible to escape from her home.
abduction.
When the kidnapping is without lewd designs, * In consented abduction, the taking away of the
the crime committed is illegal detention. virgin must be with lewd design. Actual sexual
intercourse with the woman is not necessary.
> But where the offended party was forcibly taken However, if the same is established, then it will
to the house of the defendant to coerce her to be considered as a strong evidence to prove lewd
marry him, it was held that only grave coercion design.
was committed and not illegal detention.
* Where several persons participated in the
* Forcible abduction must be distinguished from forcible abduction and these persons also raped
the crime of kidnapping. When the violent taking the offended woman, the original ruling in the
of a woman is motivated by lewd design, the case of People v. Jose is that there would be one
crime committed is forcible abduction. But if the count of forcible abduction with rape and then
motive of the offender is to deprive the woman of each of them will answer for his own rape and
her liberty, the crime committed is kidnapping. the rape of the others minus the first rape which
Abduction is a crime against chastity while was complexed with the forcible abduction. This
kidnapping is a crime against personal liberty. ruling is no longer the prevailing rule. The view
adopted in cases of similar nature is to the effect
Article 343 that where more than one person has effected the
CONSENTED ABDUCTION forcible abduction with rape, all the rapes are just
ELEMENTS: the consummation of the lewd design which
1. That the offended party must be a virgin. characterizes the forcible abduction and,
2. That she must be over 12 and under 18 therefore, there should only be one forcible
years of age. abduction with rape.
3. That the taking away of the offended
party must be with her consent, after Article 344
solicitation or cajolery from the offender. PROSECUTION OF ADULTERY,
4. That the taking away of the offended CONCUBINAGE, SEDUCTION, ABDUCTION
party must be with lewd designs. RAPE AND ACTS OF LASCIVIOUSNESS
1. Adultery and concubinage must be
VIRGINITY may be presumed from the fact that prosecuted upon complaint signed by the
the offended party is unmarried and has been offended spouse
leading moral life. Virginity or maidenhood
2. Seduction, abduction, rape or acts of the penalty already imposed upon him. This
lasciviousness must be prosecuted upon applies as well to the accomplices, accessories-
complaint signed by: after-the-fact. But marriages must be in good
faith. This rule does not apply in case of multiple
a. offended party rape
b. by her parents
c. grandparents * In the crimes involving rape, abduction,
d. guardians in the order in which they seduction, and acts of lasciviousness, the
are named above marriage by the offender with the offended
woman generally extinguishes criminal liability,
* The crimes of adultery and concubinage must be not only of the principal but also of the accomplice
prosecuted upon a complaint signed by the and accessory. However, the mere fact of
offended spouse. In the complaint, the offended marriage is not enough because it is already
party must include both guilty parties if they are decided that if the offender marries the offended
both alive. woman without any intention to perform the
duties of a husband as shown by the fact that
* Distinguished between a private crime and a after the marriage, he already left her, the
public crime. In the case of a private crime, the marriage would appear as having been
same cannot be prosecuted de oficio, meaning it contracted only to avoid the punishment. Even
cannot be initiated by any person except the with that marriage, the offended woman could still
offended party. These are the crimes against prosecute the offender and that marriage will not
chastity such as seduction, adultery, have the effect of extinguishing the criminal
concubinage and acts of lasciviousness. These liability.
are crimes which are initiated with the filing of an
information. A public crime is one which can be * Pardon by the offended woman of the offender is
prosecuted de officio, meaning it can be not a manner of extinguishing criminal liability but
prosecuted by any person interested to prosecute only a bar to the prosecution of the offender.
the same. The accusation is usually initiated with Therefore, that pardon must come before the
the filling of an information. prosecution is commenced. When the
prosecution is already commenced or initiated,
* The law requires that the complaint must be pardon by the offended woman will no longer be
initiated by the said persons in order that they effective because pardon may preclude
are named or enumerated in the article. If this prosecution but not prevent the same.
legal requirement is not observed, the case
should be dismissed for lack of jurisdiction over * Pardon in crimes against chastity, is a bar to
the subject matter. prosecution. But it must come before the
institution of the criminal action. (See the cases
* If the offended party is of age and is in complete of People vs. Villorente, 210 SCRA 647;
possession of her mental faculties, she alone can People vs. Avila, 192 SCRA 635) To be effective,
file the complaint (People vs. Mandia, 60 Phil. it must include both accused.
372)
How about pardon declared by the offended
* If the offended party cannot sign the complaint party during the trial of the case? Such a
because of her tender age, the parents can do it declaration is not a ground for the dismissal of
for her. The same can be done either by the the case. Pardon is a matter of defense which the
father or the mother. (U.S. vs. Gariboso, 25 Phil accused must plead and prove during the trial.
171 ) (People vs. Riotes, C.A., 49 O.G.3403).
* The word guardian as mentioned in the law
refers to the guardian appointed by the court. * All these private crimes – except rape – cannot
(People vs. Formento, et al., 60 Phil. 434) be prosecuted de officio. If any slander or written
defamation is made out of any of these crimes, the
What is the meaning of “shall have complaint of the offended party is still necessary
consented” which bars the institution of before such case for libel or oral defamation may
criminal action for adultery or concubinage? proceed. It will not prosper because the court
The term “consent” has reference to the tie prior cannot acquire jurisdiction over these crimes
to the commission of the crime. In other words, unless there is a complaint from the offended
the offended party gives his or her consent to the party. The paramount decision of whether he or
future infidelity of the offending spouse. she wanted the crime committed on him or her to
be made public is his or hers alone, because the
> And so, while consent refers to the offense prior indignity or dishonor brought about by these
to its commission, pardon refers to the offense crimes affects more the offended party than
after its commission. (People vs. social order. The offended party may prefer to
Schnekenburger, et al., 73 Phil. 413) suffer the outrage in silence rather than to
vindicate his honor in public.
Note: Marriage of the offender with the offended
party extinguishes the criminal action or remit
Article 345 Article 347
CIVIL LIABILITY OF PERSONS GUILTY OF SIMULATION OF BIRTHS, SUBSTITUTION OF
RAPE, SEDUCTION OR ABDUCTION ONE CHILD FOR ANOTHER, AND
1. To idemnify the offended women CONCEALMENT OR ABANDONMENT OF A
2. To acknowledge the offspring, unless the LEGITIMATE CHILD
law should prevent him from doing so Acts Punished:
3. In every case to support the offspring 1. Simulation of births
2. Substitution of one child for another
* The civil liability of the adulterer and the 3. Concealing or abandoning any legitimate
concubine is limited to indemnity for damages child with the intent to cause such child to
caused to the offended spouse. The law does not lose its civil status
mention the adulteress in the crime of adultery Requisites:
such that only the adulterer shall be held civilly 1. The child must be legitimate
liable. 2. The offender conceals or abandons such
* There is likewise no mention of the offender in child
the crime of acts of lasciviousness, as being held 3. The offender has the intent to cause the
liable for civil damages under Article 345, the law child to lose its civil status
only mentioned the crimes of rape, seduction and
abduction. Elements of Simulation of Birth
* Under Article 2219 of the Civil Code, moral 1.Child is baptized or registered in the Registry
damages may be recovered in seduction, of birth as hers
abduction, rape or other lascivious acts. The
crimes of adultery and concubinage are also 2.Child loses its real status and acquiires a new
included. one
* In the crimes of rape, abduction and seduction,
if the offended woman had given birth to the 3.Actor’s purpose was to cause the loss of any
child, among the liabilities of the offender is to trace as to the child’s true filiation
support the child. This obligation to support the
child may be true even if there are several Simulation of birth takes place when a woman
offenders. As to whether all of them will pretends to be pregnant when in fact she is not
acknowledge the child, that is a different and on the day of the supposed delivery, she
question because the obligation to support here takes the child of another and declares the child
is not founded on civil law but is the result of a to be her own. This is done by entering in the
criminal act or a form of punishment. birth certificate of the child that the offender is
the alleged mother of the child when in fact the
* It has been held that where the woman was the child belongs to another.
victim of the said crime could not possibly
conceive anymore, the trial court should not Illustration:
provide in its sentence that the accused, in case
a child is born, should support the child. This People who have no child and who buy and adopt
should only be proper when there is a probability the child without going through legal adoption.
that the offended woman could give birth to an If the child is being kidnapped and they knew that
offspring. the kidnappers are not the real parents of their
child, then simulation of birth is committed. If
Article 346 the parents are parties to the simulation by
LIABILITY OF ASCENDANTS, OTHER making it appear in the birth certificate that the
PERSONS ENTRUSTED WITH CUSTODY OF parents who bought the child are the real parents,
OFFENDED PARTY WHO BY ABUSE OF the crime is not falsification on the part of the
AUTHORITY OR CONFIDENCE SHALL parents and the real parents but simulation of
COOPERATE AS ACCOMPLIES birth.

TITLE TWELVE
Questions & Answers
CRIMES AGAINST THE CIVIL STATUS OF
PERSONS
Crimes against the civil status of persons 1. A woman who has given birth to
1. Simulation of births, substitution of one a child abandons the child in a certain place to
child for another and concealment or free herself of the obligation and duty of rearing
abandonment of a legitimate child (art. and caring for the child. What crime is committed
347); by the woman?
2. Usurpation of civil status (Art. 348); The crime committed is abandoning a
3. Bigamy (Art. 349); minor under Article 276.
4. Marriage contracted against provisions of
law (Art. 350); 2. Suppose that the purpose of the
5. Premature marriages (Art. 351); woman is abandoning the child is to preserve the
6. Performance of illegal marriage ceremony inheritance of her child by a former marriage,
(Art. 352) what then is the crime committed?
 Notes:
The crime would fall under the second
paragraph of Article 347. The purpose of the * The crime does not fall within the category of
woman is to cause the child to lose its civil status private crimes that can be prosecuted only at the
so that it may not be able to share in the instance of the offended party PUBLIC CRIME
inheritance.
 For the crime of bigamy to prosper the first
3. Suppose a child, one day after marriage must be valid. If the first marriage
his birth, was taken to and left in the midst of a is void from the beginning, such nullity of the
lonely forest, and he was found by a hunter who marriage is not a defense in a charge of
took him home. What crime was committed by the bigamy. Consequently, when raised as a
person who left it in the forest? defense, the accused should be convicted
since until and unless annulled, the bond of
It is attempted infanticide, as the act of matrimony remains or is maintained.
the offender is an attempt against the life of the
child. See US v. Capillo, et al., 30 Phil. 349.  Need for judicial declaration of nullity

 The second marriage must have all the

Article 348 essential requisites for validity were it not for
USURPATION OF CIVIL STATUS the existence of the first marriage.
Committed by a person who represents
himself as another and assumes the
filiation or rights pertaining to such person * A simulated marriage is not marriage at all and
can be used as a defense for bigamy
Notes:
* Good faith is a defense in bigamy.
* There must be criminal intent to enjoy the civil
rights of another by the offender knowing he is * One who, although not yet married before,
not entitled thereto knowingly consents to be married to one who is
already married is guilty of bigamy knowing that
* The term "civil status" includes one's public the latter’s marriage is still valid and subsisting.
station, or the rights, duties, capacities and
incapacities which determine a person to a given * In the crime of bigamy, the second spouse is not
class. It seems that the term "civil status" necessarily liable. The language of Article 349
includes one's profession. indicates the crime of bigamy is committed by
one person who contracts a subsequent marriage
* Committed by asuming the filiation, or the while the former marriage is valid and subsisting.
parental or conjugal rights of another If the second wife knew of the previous marriage
of the accused, she will be liable for the crime of
* Usurpation is committed by assuming the bigamy but only as an accomplice.
filiation or parental (when maternal, paternal or
conjugal) claim of another. To be liable for * There must be a summary proceeding to declare
usurpation of civil status, the offender must have the absent spouse presumptively dead for
the intent to enjoy the rights arising from the civil purposes of remarriage
status of another.
* Failure to exercise due diligence to ascertain the
Circumstances qualifying the offense: penalty whereabouts of the 1st wife is bigamy through
is heavier when the purpose of the impersonation reckless imprudence
is to defraud the offended party or his heirs
* A judicial declaration of the nullity of a marriage
Article 349 void ab initio is now required
BIGAMY
ELEMENTS: * The language of the law is clear when it
1. That the offender has been legally declared “before the former marriage has been
married. legally dissolved.” The Supreme Court said the
2. That the marriage has not been legally even if the accused, as plaintiff in the civil case
dissolved or, in case his or her spouse prevails, and his first marriage is annulled, such
is absent, the absent spouse could not pronouncement has no retroactive effect as to
yet be presumed dead according to the exculpate him in the bigamy case. Parties to a
civil code. marriage should not be permitted to judge its
3. That he contracts a second or nullity, for only competent courts have such
subsequent marriage. authority. (Landicho vs. Relova, 22 SCRA 731,
4. That the second or subsequent 735)
marriage has all the essential
requisites for validity. * The civil case for annulment of the first
marriage does not pose a prejudicial question as
to warrant the suspension of the trial and * The law further provides that for accused to be
proceeding in the criminal case for bigamy. liable under this article, he should not be guilty
(Roco, et al., Cinco, et al., 68 O.G.2952) of bigamy because otherwise, the crime punished
under Article 350 is deemed absorbed in the
* One convicted for bigamy may be prosecuted for bigamy.
concubinage as both are distinct offenses
Marriages contracted against the provisions of
* One convicted of bigamy may also be laws
prosecuted for concubinage as both are distinct
offenses. The first is an offense against civil 1. The marriage does not constitute bigamy.
status, which may be prosecuted at the instance 2. The marriage is contracted knowing that the
of the state; the second is an offense against requirements of the law have not been
chastity, and may be prosecuted only at the complied with or in disregard of legal
instance of the offended party. The test is not impediments.
whether the defendant has already been tried for 3. One where the consent of the other was
the same act, but whether he has been put in obtained by means of violence, intimidation or
jeopardy for the same offense. fraud.
4. If the second marriage is void because the
* One who vouches that there is no legal accused knowingly contracted it without
impediment knowing that one of the parties is complying with legal requirements as the
already married is an accomplice marriage license, although he was previously
married.
Distinction between bigamy and illegal 5. Marriage solemnized by a minister or priest
marriage: who does not have the required authority to
solemnize marriages.
Bigamy is a form of illegal marriage. The offender
must have a valid and subsisting marriage. Article 351
Despite the fact that the marriage is still PREMATURE MARRIAGE
subsisting, he contracts a subsequent marriage. Acts punished:
1. A widow who within 301 days from death
Illegal marriage includes also such other of husband, got married or before her
marriages which are performed without delivery, if she was pregnant at the time
complying with the requirements of law, or such of his death
premature marriages, or such marriage which 2. A woman whose marriage having been
was solemnized by one who is not authorized to dissolved or annulled, married before her
solemnize the same. delivery or within 301 days after the
legal separation
Article 350
MARRIAGE CONTRACTED AGAINST * The Supreme Court has already taken into
PROVISIONS OF LAWS account the reason why such marriage within
ELEMENTS: 301 days is made criminal, that is, because of the
1. That the offender contracted marriage. probability that there might be a confusion
2. That he knew at the time that regarding the paternity of the child who would be
born. If this reason does not exist because the
a. the requirement of the law were not complied former husband is impotent, or was shown to be
with, or sterile such that the woman has had no child
with him, that belief of the woman that after all
b. The marriage was in disregard of a legal there could be no confusion even if she would
impediment. marry within 301 days may be taken as evidence
of good faith and that would negate criminal
Note: Circumstance qualifying the offense: if intent.
either of the contracting parties obtains the
consent of the other by means of violence, * Article 84 of the Civil Code provides that no
intimidation or fraud marriage license shall be issued to a widow until
after 300 days following the death of her
The requirements of the law for a valid husband, unless in the meantime she has given
marriage are: birth to a child.

1. The legal capacity of the contracting parties; Article 352

2. Their consent freely given; PERFORMANCE OF ILLEGAL MARRIAGE
3. Authority of the person performing the CEREMONY
marriage; and Act punished:
4. Marriage license, except in marriage under performance of any illegal marriage
exceptional circumstances. ceremony by a priest or minister of any
religious denomination or sect or by civil
authorities
 TITLE THIRTEEN Kinds of Malice.
CRIMES AGAINST HONOR
Malice in law – This is assumed and is inferred
Crimes against honor from the defamatory character of an
1. Libel by means of writings or similar imputation. The presumption of malice
means (Art. 355); attaches to the defamatory statement
2. Threatening to publish and offer to especially if it appears to be insulting per se.
prevent such publication for a The law presumes that the defamer made the
compensation (Art. 356); imputation without good intention or
3. Prohibited publication of acts referred to justifiable motive.
in the course of official proceedings (Art.
357); Malice in fact – This refers to malice as a fact.
4. Slander (Art. 358); The presence and existence of personal ill-
5. Slander by deed (Art. 359); will or spite may still appear even if the
6. Incriminating innocent person (Art. 363); statement is not defamatory. So, where the
7. Intriguing against honor (Art. 364). defamatory acts may be presumed from the
publication of the defamatory acts imputed
Article 353 refer to the private life of the individual,
LIBEL malice may be presumed from the
ELEMENTS: publication of the defamatory statement
1. That there must be an imputation of a because no one has a right to invade
crime, or of a vice or defect, real or another’s privacy.
imaginary, or any act, omission,
condition, status, or circumstances. Distinction between malice in fact and malice
2. That the imputation must be made in law
publicly.
3. That it must be malicious. Malice in fact is the malice which the law
4. That the imputation must be directed at presumes from every statement whose tenor is
a natural or juridical person, or one who defamatory. It does not need proof. The mere
is dead. fact that the utterance or statement is
5. That the imputation must tend to cause defamatory negates a legal presumption of
the dishonor, discredit or contempt of the malice.
person defamed.
In the crime of libel, which includes oral
defamation, there is no need for the prosecution to
Notes: present evidence of malice. It is enough that the
alleged defamatory or libelous statement be
LIBEL is a public and malicious imputation of a presented to the court verbatim. It is the court
crime, or a vice or defect, real or imaginary or any which will prove whether it is defamatory or not.
act, commission, condition, status or If the tenor of the utterance or statement is
circumstances tending to cause the dishonor, defamatory, the legal presumption of malice
discredit or contempt of a natural or juridical arises even without proof.
person, or to blacken the memory of one who is
dead Malice in fact becomes necessary only if the
malice in law has been rebutted. Otherwise, there
Character of the words used to make it is no need to adduce evidence of malice in fact.
defamatory. So, while malice in law does not require evidence,
malice in fact requires evidence.
Words calculated to induce suspicion are more
effective in destroying reputation than false Malice in law can be negated by evidence that, in
charges directly made. Ironical and metaphorical fact, the alleged libelous or defamatory utterance
language is a favored vehicle for slander. A was made with good motives and justifiable ends
charge is sufficient if the words are calculated to or by the fact that the utterance was privileged in
induce the hearer to suppose and understand that character.
the person against whom they are uttered is guilty
of certain offenses, or are sufficient to impeach his In law, however, the privileged character of a
honesty, virtue or reputation, or to hold him up to defamatory statement may be absolute or
public ridicule. (U.S. vs. O’Connell, 37 Phil. qualified.
767)
When the privileged character is said to be
Malice has been defined as a term used to absolute, the statement will not be actionable
indicate the fact that the defamer is prompted by whether criminal or civil because that means the
personal ill or spite and speaks not in response law does not allow prosecution on an action
to duty but merely to injure the reputation of the based thereon.
person defamed.
Illustration: typesetter is sufficient publication. Writing a
As regards the statements made by Congressmen letter to another person other than the person
while they are deliberating or discussing in defamed is sufficient publication. (See Sazon vs.
Congress, when the privileged character is Court of Appeals, 255 SCRA 692)
qualified, proof of malice in fact will be admitted
to take the place of malice in law. When the > The crime is libel if the defamation is in writing
defamatory statement or utterance is qualifiedly or printed media.
privileged, the malice in law is negated. The
utterance or statement would not be actionable > The crime is slander or oral defamation if it is
because malice in law does not exist. Therefore, not printed.
for the complainant to prosecute the accused for
libel, oral defamation or slander, he has to prove * Person libeled must be identified. But the
that the accused was actuated with malice publication need not refer by name to the libeled
(malice in fact) in making the statement. party. If not named it must be shown that the
description of the person referred to in the
* Malice is presumed to exist in injurious defamatory publication was sufficiently clear so
publications that at least a 3rd person would have identified
the plaintiff.
* Where the imputation is based upon matters of
public interest, the presumption of malice does * When a libel is addressed to several persons,
not arise from the mere publication of the unless they are identified in the same libel, even if
defamatory statement. A matter of public interest there are several persons offended by the libelous
is common property. Malice in fact comes into utterance or statement, there will only be one
play when the statement made is not defamatory count of libel.
per se, as when the offender resorts to
underserved praises or satirical method of * If the offended parties in the libel were distinctly
impeaching the virtue, honesty and reputation of identified, even though the libel was committed at
the offended party. It can also appear in the form one and the same time, there will be as many
of innuendos. libels as there are persons dishonored.

* This discussion leads to the conclusion that the Illustration:

determination of libelous meaning is left to the
good judgment of the court after considering all If a person uttered that “All the Marcoses are
the circumstances which lead to the utterance or thieves," there will only be one libel because
publication of the defamatory statement. The these particular Marcoses regarded as thieves are
question is not what the writer of an alleged libel not specifically identified.
means but what the words used by him mean.
The meaning given by the writer or the words If the offender said, “All the Marcoses – the
used by him is immaterial. The question is not father, mother and daughter are thieves.” There
what the writer meant but what he conveyed to will be three counts of libel because each person
those who heard or read him (People vs. libeled is distinctly dishonored.
Encarnacion, 204 SCRA 1)
* If you do not know the particular persons
How to overcome the presumption of malice. libeled, you cannot consider one libel as giving
rise to several counts of libel. In order that one
The presumption of malice is rebutted by defamatory utterance or imputation may be
showing : considered as having dishonored more than one
person, those persons dishonored must be
1. that the accused published the defamatory identified. Otherwise, there will only be one count
imputation with good intention; of libel.

2. that there is justifiable motive for making it; * Note that in libel, the person defamed need not
be expressly identified. It is enough that he could
3. that the communication made is privileged; possibly be identified because “innuendos may
and also be a basis for prosecution for libel. As a
matter of fact, even a compliment which is
4. accused must prove the truth of the undeserved, has been held to be libelous.
defamatory imputation in those cases * To presume publication there must be a
wherein truth is a defense. reasonable probability that the alleged a libelous
matter was thereby exposed to be read or seen by
PUBLICATION is the communication of the 3rd persons.
defamatory matter to some third person/s
Republication of defamatory article is
Publication is the communication of the punishable.
defamatory matter to a third person or persons.
So, the delivery of a defamatory writing to a
One is liable for publication of defamatory words 2. When the offended party is a government
against another although he is only repeating employee, even if the act or omission
what he heard and names the source of his imputed does not constitute a crime,
information. A person who repeats a slander or provided if its related to the discharged of
libelous publication heard or read from another his official duties.
is presumed to indorse it. (People vs.
Salumbides and Reanzares, C.A., 55 O.G. Requisites of defense in defamation
2638) 1. If it appears that the matter charged as
libelous is true;
Criterion to determine whether statements 2. It was published with good motives;
are defamatory 3. It was for justifiable ends.

1) words are calculated to induce the hearers If a crime is a private crime, it cannot be
to suppose and understand that the prosecuted de officio. A complaint from the
person against who they are uttered were offended party is necessary.
guilty of certain offenses, or are sufficient
to impeach their honesty, virtue or Libel Perjury
reputation, or to hold the person up to -false accusation need -false accusation is
public ridicule(US v O’Connel) not be made under oath made under oath

2 )construed not only as to the expression

used but also with respect to the whole Newsweek v IAC
scope and apparent object of the writer.(P Newsweek portrayed the island province of
v Encarnacion) Negros Occidental as a place dominated by big
landowners. Plaintiffs are associations of
* The test of libelous meanings is not the analysis sugarcane planters. HELD: Dismissed. To
of a sentence into component phrases with the maintain a libel suit, the specific victim must be
meticulous care of the grammarian or stylist, but identifiable. Defamatory remarks directed at a
the import conveyed by the entirety of the group of persons are not actionable unless the
language to the ordinary reader. (Lacsa vs. FAC, statements are all-embracing or sufficiently
et al., 161 SCRA 427). specific for victim to be identifiable. An action for
libel allegedly directed against a group of sugar
* In libel cases, the question is not what the planters cannot be done by resort to filing a class
offender means but what the words used by him suit as each victim has his specific reputation to
mean. ( Sazon vs. CA, 255 SCRA 692) protect. In this case, each of the plaintiffs has a
separate and distinct reputation in the
Praises undeserved are slander in disguise. community.

Where the comments are worded in praise of the Rule regarding Public Officers:
plaintiff, like describing him with qualities which
plaintiff does not deserve because of his social, Defamatory remarks and comments on
political and economic status in the community the conduct or acts of public officers which are
which is too well known to all concerned, are related to the discharge of their official duties will
which intended are intended to ridicule rather not constitute libel if the accused proves the
than praise him, the publication is deemed truth of the imputation. But any attack upon the
libelous (Jimenez vs. Reyes, 27 SCRA 52) private character of the public officers on matters
which are not related to the discharge of their
* Even if what was imputed is true, the crime of official functions may constitute Libel.
libel is committed unless one acted with good
motives or justifiable end. Poof of truth of a * Where malice cannot be inferred from false
defamatory imputation is not even admissible in defamatory statements, the ruling appears to be
evidence, unless what was imputed pertains to the true only if the offended party is a
an act which constitutes a crime and when the government employee, with respect to facts
person to whom the imputation was made is a related to the discharge of his official duties. With
public officer and the imputation pertains to the his jurisprudence, it should now be emphasized
performance of official duty. Other than these, that ‘actual malice” is now required to be proven.
the imputation is not admissible. It is enough to rely on presumed malice in libel
cases involving a public official or public figure.
When proof of truth is admissible
* Malice is now understood to mean publication
1. When the act or omission imputed with knowledge of falsehood or reckless disregard
constitutes a crime regardless of whether of the statement’s veracity. The burden of proof
the offended party is a private individual has not only been shifted to the plaintiff in libel,
or a public officer; but proof has not only been shifted to the plaintiff
in libel, but proof of malice must now be clear and
convincing.
Case Doctrines: * When the defamatory imputation comes under
the criteria of an absolute privileged
* The fact that a communication is privileged is communication, the presumption of malice under
not a proper ground for the dismissal of a Article 354 has no application.
complaint for libel. In the first place, it is a
matter of defense. Secondly, the fact that a * The presumption of malice, however, comes into
communication is privileged does not mean that play when the defamatory statement is a
it is not actionable. The privileged character conditional or qualified privileged
simply does away with the presumption of malice communication. To overcome this presumption of
which the prosecution has to prove in such a case. malice in law, the defamer must prove during the
(Lu Chu Sing, et al., vs. Lu Tiong Gui, 76 Phil. proceeding that the defamatory imputation was
669) committed because of a legal, moral or social
duty.
* Libel in answer to another libel is not a defense.
(Pellicena vs. Gonzales, 6 Phil. 50) * Privileged communication as categorized in this
discussion is a matter of defense. It is not a
* If the defamatory imputation is in the nature of ground for a motion to quash after the
self-defense under Article 11 of the Revised Penal arraignment of the accused. (See Mercado vs.
Code such that the publication was done in good CFI of Rizal, 116 SCRA 93). If after the
faith, without malice and just adequate enough prosecution has presented its evidence, it
to protect his good name, the statement may be becomes evident that the defamatory statement
considered privileged. (People vs. Baja, 40 O.G. was made by the accused because of a legal,
206; People vs. Mendoza, C.A. 74 O.G. 5607) moral or social duty, then the accused can file a
demurrer to evidence, as in the meantime, there
* The fair and true report of official proceedings is absence of malice in law which is presumed in
refer to proceedings in the three branches of all defamatory imputations.
government, to wit: judicial, legislative and
executive. The publisher is limited only to the GENERAL RULE: Every defamatory imputation is
narration of what had taken place even if the presumed malicious even if it be true, if no good
report contains defamatory and injurious matter intention and justifiable motive for making it is
affecting another person, libel is not committed shown
for as long as what is contained is a fair and true
report of the proceedings. EXCEPTION:
a. private communication in
* Under Article 354, the publisher becomes liable performance of legal, moral or social
when he makes comments or remarks upon the duty
private character of person, which are not
relevant or related to the judicial, legislative or Requisites
executive proceedings. 1. that the person who made the
communication had a legal, moral or social
* Under our libel law, defamatory remarks duty to make the communication or at
against government employees with respect to least he had an interest to be upheld
facts related to the discharge of their official 2. that the communication is addressed to an
duties will not constitute libel, if defendant is officer or a board, or superior, having some
able to prove the truth of the imputations. But interest or duty on the matter
any attack on the private character of the officer 3. that the statements in the communication
on matters which are not related to the discharge are made in good faith without malice in
of his official functions may constitute libel since fact
under our laws, the right of the press to criticize
public officers does not authorize defamation. b. fair and true report, made in good faith,
(U.S. vs. Bustos, supra; Sazon vs. Court of without any comments and remarks
Appeals, supra).
Requisites
1. that the publication of a report of an official
Article354 proceeding is a fair and true report of a
REQUIREMENT OF PUBLICITY judicial, legislative, or other official
Kinds of privileged communication proceedings which are not of confidential
a. ABSOLUTELY PRIVILEGED – not nature, or of a statement, report, or speech
actionable even if the actor has acted in delivered in said proceedings, or of any
bad faith other act performed by a public officer
b. QUALIFIEDLY PRIVILEGED – those which 2. that it is made in good faith
although containing defamatory 3. that it is made without any comments or
imputations could not be actionable unless remarks
made with malice or bad faith
Doctrine of fair comment
“A fair comment on matters of public interest is contemplates of two offenses: a threat to
included and is covered by the mantle of establish a libel and an offer to prevent such
privileged communication which constitutes a publication. The gravamen of the crime is the
valid defense against libel and slander.” “If the intent to extort money or other things of value.
comment is an expression of opinion based on
established facts, then it is immaterial that the Blackmail – In its metaphorical sense, blackmail
opinion happens to be mistaken, as long as it may be defined as any unlawful extortion of
might be reasonably inferred from the facts.” money by threats of accusation or exposure. Two
Further explaining the right to comment on a words are expressive of the crime – hush money.
public issue, the Court said, “If a matter is a (US v. Eguia, et al., 38 Phil. 857) Blackmail
subject of public or general interest, it cannot is possible in (1) light threats under Article 283;
become less so merely because a private and (2) threatening to publish, or offering to
individual is involved. The public primary interest prevent the publication of, a libel for
is in the event; the public focus is on the conduct compensation, under Article 356.
of the participants and not on their prior
anonymity or notoriety. ( Borjal vs. CA, 301 Article 357
SCRA 1 ) PROHIBITED PUBLICATION OF ACTS
REFERRED TO IN THE COURSE OF OFFICIAL
Santos v CA PROCEEDINGS
HELD: No malice, he simply furnished the ELEMENTS:
readers with the info that a complaint has been 1. That the offender is a reporter, editor or
filed against the brokerage firm and reproduced manager of a newspaper, daily or
the pleading verbatim with no embellishments. magazine.
2. That he publishes facts connected with
the private life of another.
Article 355 3. That such facts are offensive to the
LIBEL BY MEANS OF WRITING OR SIMILAR honor, virtue and reputation of said
MEANS person.

A libel may be committed by means of – Note:

1. Writing;
2. Printing; * Even though made in connection with or under
3. Lithography; the pretext that it is necessary in the narration of
4. Engraving; any judicial or administrative proceedings
5. Radio; wherein such facts have been mentioned.
6. Photograph;
7. Painting; * With its provisions, Article 357 has come to be
8. Theatrical exhibition; known as the “Gag Law.” It prohibits reporters,
9. Cinematographic exhibition; or editors or managers of newspapers from
10. Any similar means. publishing articles containing facts connected
with the private life of an individual; facts which
* In the enumeration above, television is not are offensive to the honor, virtue and reputation
included, probably because at the time the of persons. But these must refer to facts which
Revised Penal Code was conceived, television had are intimately related to the offended party’s
not yet been invented. However, the law provides, family and home. Occasionally, it involves
“or any similar means” which easily qualifies conjugal troubles and quarrels because of
television is such species or category. (People vs. infidelity, adultery or crimes involving chastity.
Casten, C.A., G.R. No. 07924-CR promulgated
December 13, 1974) Lacsa v IAC
Lacsa found that Marquez was not a proprietary
member of PCA thus not qualified to be
Article 356 president. He wrote to the BOD and to Marquez.
THREATENING TO PUBLISH LIBEL AND He caused to publish the second letter. HELD:
OFFER TO PREVENT SUCH PUBLICATION FOR Letter is not privileged communication. To be
A COMPENSATION classified as such it must be free from malice.
Acts punished Granting that the letter was privileged
1. Threatening another to publish a libel communication, written out of a duty of an officer
concerning him, or his parents, spouse, towards the members, such character was lost
child, or other members of his family; when it was published.
2. Offering to prevent the publication of
such libel for compensation or money * Under Republic Act No. 1477, amending Rep.
consideration. Act. No. 58, the publisher, editor, columnist or
duly accredited reporter of any newspaper,
* It involves the unlawful extortion of money by magazine or periodical of general circulation
appealing to the fear of the victim, through cannot be compelled to reveal the source of any
threats of accusation or exposure. It news report information appearing in the said
publication which was related to him in Notes:
confidence unless the court or a house or
committee of Congress finds that such revelation Slander by deed is a defamation committed by
is demanded by the security of the State. the offender against the complainant through the
performance of any act which casts dishonor,
discredit or contempt upon another person.
Article 358
ORAL DEFAMATION / SLANDER * Slander by deed refers to performance of an act,
Two Kinds of Oral Defamation: not use of words.
1. action of a serious and insulting nature
(Grave slander)
2. light insult or defamation – not serious in Two kinds of slander by deed
nature (simple slander)
1. Simple slander by deed; and
Factors that determine gravity of the offense:
a) expressions used 2. Grave slander by deed, that is, which is
b) personal relations of the accused and the of a serious nature.
offended party
c) circumstances surrounding the case * Whether a certain slanderous act constitutes
slander by deed of a serious nature or not,
Notes: depends on the social standing of the offended
party, the circumstances under which the act
* The gravity of oral defamation depends not only was committed, the occasion, etc.
on the expressions but also on the personal
relation of the accused with the offended party. * The acts of slapping and boxing the woman, a
Other circumstances like the presence of teacher, in the presence of many people has put
important people when the crime was committed, her to dishonor, contempt and ridicule. (P v
the social standing and position of the offended Costa)
party are factors which may influence the gravity
and defamatory imputation (Victorio vs. Court * If the acts committed against the offended party
of Appeals, 173 SCRA 645). caused her physical injury which did not require
medical attendance, then the crime would be
* Note that slander can be committed even if the maltreatment which is classified as slight
defamatory remark was done in the absence of physical injuries.
the offended party. (People vs. Clarin, C.A., 37
O.G. 1106) P v Motita
> Accused held a mirror between the legs of
* Words uttered in the heat of anger constitute complainant to reflect her private parts. The
light oral defamation (P v Doronilla) crowd laughed. Guilty of slander by deed.

* If the utterances were made publicly and were Distinctions:

heard by many people and the accused at the
same time levelled his finger at the complainant, a. Unjust Vexation-irritation or
oral defamation is committed (P v Salleque) annoyance/anything that annoys or
irritates without justification.
* The word “puta ” does not impute that the
complainant is prostitute. (People vs. Atienza, b. Slander by Deed-irritation or annoyance +
G.R. No. L-19857, Oct. 26, 1968 ) It is a attendant publicity and dishonor or
common expression of anger or displeasure. It is contempt.
seldom taken in its literal sense by the hearer. It
is viewed more as a threat on the part of the c.Acts of lasciviousness-irritation or
accused to manifest and emphasize a point. annoyance + any of 3 circumstance
(Reyes vs. People, 27 SCRA 686) provided in Art335 of RPC on rape
i. use of force or intimidation
ii. deprivation of reason or rendering the
Article 359 offended unconscious
SLANDER BY DEED iii. offended party under 12 yrs of age+lewd
ELEMENTS: designs
1. That the offender performs any act not
included in any other crime against Article 360
honor. PERSONS RESPONSIBLE FOR LIBEL
2. That such act is performed in the
presence of other person or persons. Who are liable:
3. That such act casts dishonor, discredit a. person who publishes, exhibits or causes
or contempt upon the offended party. the publication or exhibition of any
 defamation in writing or similar prosecuted de oficio (e.g. adultery, concubinage,
means(par.1) rape, seduction, abduction, and acts of
b. author or editor of a book or pamphlet lasciviousness)
c. editor or business manager of a daily
newspaper magazine or serial * Under the last paragraph of Article 360, only
publication(par.2) defamation consisting of the imputation of
d. owner of the printing plant which private offenses such as adultery, concubinage,
publishes a libelous article with his seduction, abduction and acts of lasciviousness
consent and all other persons who in any shall be prosecuted by the offended party by
way participate in or have connection filing a complaint. Outside of this enumeration by
with its publication (US v Ortiz) law, the crime is considered a public crime which
may be prosecuted de oficio.
* A defamatory statement by itself is not a crime.
It is the undue publication of the defamatory Soriano v IAC
imputation which makes it a crime. It is therefore > The Philippines follows the multiple
in this concept that proprietors and editors of publication rule which means that every time
periodicals are also made responsible for the the same written matter is communicated, such
appearance of defamatory matters in any communication is considered a distinct and
newspaper under their management. separate publication of libel.

Venue of criminal and civil action for damages * Where the publication is libelous per se, actual
in cases of written defamation: damages need not be established. This is so
a. where the libelous article is printed and 1st because libel, by its very nature, causes
published OR dishonor, disrepute and discredit and injury to
the reputation of the offended party. It is
b. where any of the offended parties actually something inherent and natural in the crime of
resides at the time of the commission of the libel. (Lu Chu Sing vs. Lu Tiong Gui, 76 Phil.
offense 669)

* Libel cases are within the original and exclusive

jurisdiction of the Regional Trial Courts. Inferior Article 361
courts have no jurisdiction to try written PROOF OF THE TRUTH
defamation. (People vs. Hechanova, 54 SCRA
101) Admissible when:
a. the act or omission imputed
Where one of the offended parties is a public constitutes a crime regardless of whether
officer: the offended party is a private individual
or a public officer
a. if his office is in the City of Manila
- RTC of Manila OR b. the offended party is a government
- city/province where the article is printed employee, even if the act or omission
and 1st published imputed does not constitute a crime
provided it is related to the discharge of
b. Otherwise his official duties
- RTC of the city/province where he held
office at the time of offense OR Requisites for Acquittal:
- where the article is 1st published a. it appears that the matter charged as
libelous is TRUE (for situations 1 and 2
Where one of the offended parties is a above)
private individual:
- RTC of province/city where he actually b. it was published with good motives
resides at the time of the crime and for a justifiable end (for situation 1
- where article was printed or 1st published only)

* In order to prevent controversies as to the Notes: The proof of the truth of the accusation
venue of criminal actions for written defamation, cannot be made to rest upon mere hearsay,
the information or complaint must contain rumors, or suspicion. It must rest upon positive
averments as to whether the offended party is a direct evidence, upon which a definite finding
private or public officer at the time of the may be made by the court (US v Sotto)
commission of the offense and whenever possible,
the place where the written defamation was * Admission on the part of the accused that he
printed and first published. (Agbayani, et al., committed a mistake will not serve to free him
vs. Hon. Sayo, et al., L-47880, April 30, 1979) from criminal liability. But it may serve to
mitigate the penalty imposed on him or lessen his
Note: Offended party must file complaint for civil liability. ( Phee vs. La Vanguardia, 45 Phil
defamation imputing a crime which cannot be 211 )
 * As far as this crime is concerned, this has been
interpreted to be possible only in the so-called
planting of evidence.
Article 362
LIBELOUS REMARKS * There is such a crime as incriminating an
innocent person through unlawful arrest. (People
Libelous remarks or comments on privileged vs. Alagao, et al., G.R. No. L-20721, April 30,
matters (under Art. 354) if made with malice 1966)
in fact will not exempt the author and editor.
Article 364
* This article is a limitation to the defense of INTRIGUING AGAINST HONOR
privileged communication.
How committed:
* The main thrust of the law is to punish libelous
remarks or comments on matters which are -by any person who shall make any intrigue
privileged, if made with malice in fact. So, a which has for its principal purpose to
newspaper reporter who distorts facts connected blemish the honor or reputation of another
with official proceedings or who adds comments person
thereon as to cast aspersion on the character of
the parties involved, is guilty of libel even Notes:
through the defamatory matter is published in
connection with a privileged communication. * The crime is committed by resorting to any form
(Dorr vs. U. S., 11 Phil. 706) of scheme or plot designed to blemish the
reputation of a person. The offender does not
employ written or spoken words, pictures or
caricatures to ridicule the victim. Rather, he uses
INCRIMINATORY MACHINATIONS some ingenious, crafty and secret ploy which
produces the same effect.
Article363
INCRIMINATING INNOCENT PERSON * Intriguing against honor is referred to as
ELEMENTS: gossiping. The offender, without ascertaining the
1. That the offender performs an act. truth of a defamatory utterance, repeats the
2. That by such act he directly same and pass it on to another, to the damage of
incriminates or imputes to an innocent the offended party. Who started the defamatory
person the commission of a crime. news is unknown.
3. That such act does not constitute
perjury. * Where the source of polluted information can be
traced and pinpointed, and the accused adopted
Two Kinds: as his own the information he obtained, and
a. making a statement which is passed it to another in order to cause dishonor to
b i. defamatory or the complainant’s reputation, the act is Slander
ii. perjurious (if made under oath and is and not Intriguing Against Honor. But where the
false) source or the author of the derogatory
information can not be determined and the
b. planting evidence accused borrows the same, and without
subscribing to the truth thereof, passes it to
Note: article is limited to planting evidence and others, the act is one of Intriguing Against Honor.
the like * Committed by saying to others an
unattributable thing, if said to the person himself
* This crime cannot be committed through verbal it is slander.
incriminatory statements. It is defined as an act
and, therefore, to commit this crime, more than a Distinction between intriguing against honor
mere utterance is required. and slander:

* If the incriminating machination is made orally, When the source of the defamatory utterance is
the crime may be slander or oral defamation. unknown and the offender simply repeats or
passes the same, the crime is intriguing against
* If the incriminatory machination was made in honor.
writing and under oath, the crime may be perjury
if there is a willful falsity of the statements made. If the offender made the utterance, where the
source of the defamatory nature of the utterance
* If the statement in writing is not under oath, the is known, and offender makes a republication
crime may be falsification if the crime is a thereof, even though he repeats the libelous
material matter made in a written statement statement as coming from another, as long as
which is required by law to have been rendered. the source is identified, the crime committed by
that offender is slander.
Distinction between intriguing against honor b. degree of intelligence, physical
and incriminating an innocent person: condition, and
In intriguing against honor, the offender resorts to c. other circumstances regarding
an intrigue for the purpose of blemishing the persons, time and place.
honor or reputation of another person.
ELEMENTS OF SIMPLE IMPRUDENCE:
In incriminating an innocent person, the offender 1. That there is lack of precaution on the
performs an act by which he directly incriminates part of the offender.
or imputes to an innocent person the commission 2. That the damage impending to be caused
of a crime. in not immediate or the danger is not
clearly manifest.
RA4200 The Anti - Wire Tapping Act
Acts punished: Quasi-offenses punished
1) any person, not authorized by all the parties to 1. Committing through reckless imprudence any
any private communication or spoken word act which, had it been intentional, would
a) taps any wire of cable OR constitute a grave or less grave felony or light
felony;
b) uses any other device or arrangement, to 2. Committing through simple imprudence or
secretly overhear, intercept, or record such negligence an act which would otherwise
communication or spoken word by using a constitute a grave or a less serious felony;
device commonly known as a dictaphone 3. Causing damage to the property of another
or dictagraph or walkie talkie or tape through reckless imprudence or simple
recorder imprudence or negligence;
4. Causing through simple imprudence or
2) any person, whether or not a participant in the negligence some wrong which, if done
above-mentioned acts: maliciously, would have constituted a light
a) knowingly possesses any tape record, felony.
wire record, disc record, or any other such
record or copies thereof of any Distinction between reckless imprudence and
communication or spoken word negligence:
b) replays the same for any other person
c) communicates the contents thereof, The two are distinguished only as to whether the
whether complete or partial, to any other danger that would be impending is easily
person perceivable or not. If the danger that may result
from the criminal negligence is clearly
Notes: perceivable, the imprudence is reckless. If it
* Peace officer is exempt if acts done under lawful could hardly be perceived, the criminal
order of the court. You can only use the recording negligence would only be simple.
for the case for which it was validly requested.
* Information obtained in violation of the Act is * There is no more issue on whether culpa is a
inadmissible in evidence in any hearing or crime in itself or only a mode of incurring
investigation. criminal liability. It is practically settled that
criminal negligence is only a modality in incurring
Gaanan v IAC criminal liability. This is so because under Article
> An extension phone is not one of those 3, a felony may result from dolo or culpa.
prohibited under RA 4200. There must be either
a physical interruption through the wiretap or Notes:
the deliberate installation of a device or Test for determining whether or not a person
arrangement in order to overhear, intercept or is negligent of doing of an act which results in
record the spoken words. The extension phone injury or damages to another person or his
was not installed for such purpose. property.

CRIMINAL NEGLIGENCE Would a prudent man in the position of the person

to whom negligence is attributed, foresee harm to
Article 365 the person injured? If so, the law imposes on the
ELEMENTS OF RECKLESS IMPRUDENCE: doer, the duty to refrain from the course of
1. That the offender does or fails to do an action, or to take precaution against such result.
act. Failure to do so constitutes negligence.
2. That the doing of or the failure to do that Reasonable foresight of harm, followed by
act is voluntary. ignoring the admonition borne of this provisions,
3. That it be without malice. is the constitutive fact of negligence. (Picart vs.
4. That material damage results. Smith, 37 Phil. 809, 813)
5. That there is inexcusable lack of
precaution on the part of the offender, Test of Negligence.
taking into consideration
a. his employment or occupation
Did the defendant, in doing the alleged negligent
act, use the reasonable care and caution which an Last clear chance doctrine-
ordinary prudent person would have used in the > The contributory negligence of the injured
same situation? If not, then he is guilty of party will not defeat the action if it be shown that
negligence. the accused might, by the exercise of reasonable
care and prudence, have avoided the
The penalties under Article 365 has no consequences of the negligence of the injured
application in the following cases: party

1. When the penalty provided for the offense ifs Emergency rule-
equal or lower than that provided in pars.1 > An automobile driver, who, by the negligence
and 2 of Article 365. In this case, the penalty of another, is suddenly placed in an emergency
shall be that which is next lower in degree and compelled to act instantly to avoid a collision
than that which should be imposed, in the or injury is not guilty of negligence if he makes a
period which the court may deem proper to choice which a person of ordinary prudence
apply. placed in such a position might make even
though he did not make the wisest choice.
2. When by imprudence or negligence and with
violation of the Automobile Law, the death of Doctrine of Pre-emption
a person is caused, the penalty is prision > It is a rule in collision cases which the driver of
correccional in its medium and maximum a motor vehicle to make a full stop when crossing
periods. a thru-street. Any accident therefore which takes
place in said corner gives to rise to the
1) Art.64 on mitigating and aggravating presumption of negligence on the part driver of
circumstances not applicable. the motor vehicle running thru-street has already
2) Failure to lend on the spot assistance to reached the middle part of the intersection. In
victim of his negligence: penalty next higher in such a case, the other driver who has the right of
degree. way has the duty to stop his motor vehicle in
3) Abandoning usually punishable under Art order to avoid a collision. (People vs. Taradji, 3
275, if charged under Art 365 is only C.A. Rep. [25] 460)
qualifying and if not alleged cannot even be an P v Cano
aggravating circumstance. > Negligence is a quasi-offense. What is
4) Contributory negligence—not a defense, only punished is not the effect of the negligence but
mitigating the recklessness of the accused.

* The defense of contributory negligence does not P v Carillo

apply in criminal cases committed through > 13 yr old girl dies 3 days after surgery due to
reckless imprudence. It is against public policy to an overdose of Nubain which triggered a heart
invoke the negligence of another to escape attack that caused brain damage. HELD: Guilty
criminal liability. (People vs. Quiñones, C.A., 44 of simple negligence resulting to homicide. Carillo
O.G. 1520) was the anesthesiologist, he and his co-accused
failed to monitor and provide close patient care,
* The above-mentioned doctrine should be to inform the parents of the child’s true
reconciled with the doctrine of “concurrent condition, to prove that they exercised necessary
proximate cause of two negligent drivers.” and appropriate degree of care and diligence to
prevent the condition.
* In the case of People vs. Desalis, et al., C.A.,
57 O.G. 8689, the two accused were drivers of Buearano v CA
two speeding vehicles which overtook vehicles > Conviction of the accused in the charge of
ahead of them and even encroached on the slight and less serious physical injuries through
other’s lane without taking due precaution as reckless imprudence constitutes double jeopardy
required by the circumstances. The court found to the charge of the crime of damage to property
the concurrent or successive negligent act or through reckless imprudence.
omission of the two drivers as the direct and * Since this is the mode of incurring criminal
proximate cause of the injury caused to the liability, if there is only one carelessness, even if
offended party. The court could not determine in there are several results, the accused may only be
what proportion each driver contributed to the prosecuted under one count for the criminal
injury. Both were declared guilty for the injury negligence. So there would only be one
suffered by the third person. information to be filed, even if the negligence may
bring about resulting injuries which are slight.
* When negligence does not result in any injury
to persons or damage to property, then no crime * Do not separate the accusation from the slight
is committed. Negligence becomes punishable physical injuries from the other material result of
when it results in the commission of a crime. the negligence.
(Lantok, Jr. vs. Hon. Gorgonio, L-37396, April
30, 1979, 75 O.G. 7763)
* If the criminal negligence resulted, for example, imprudence or simple negligence. (People vs.
in homicide, serious physical injuries and slight Eleazar )
physical injuries, do not join only the homicide
and serious physical injuries in one information
for the slight physical injuries. You are not
complexing slight when you join it in the same
information. It is just that you are not splitting the
criminal negligence because the real basis of the
criminal liability is the negligence.

* If you split the criminal negligence, that is where

double jeopardy would arise.

* Accused is not criminally liable for the death or

injuries caused by his negligence to trespassers
whose presence in the premises he was not aware
of. In the case of People vs. Cuadra, C.A., 53
O.G. 7265, accused was a truck driver.
Unknown to him, several persons boarded his
truck and while driving along a slippery road
which has a declinations of 25 degrees, the left
front wheel of the truck fell into a ditch. In his
effort to return the truck to the center of the
road, the truck turned turtle, throwing off two of
the passengers who boarded the truck without
his knowledge. As a consequence, one of them
died. Cuadra was acquitted of the crime of
reckless imprudence resulting in homicide and
physical injuries.

* Overtaking of another vehicle is a normal

occurrence in driving. But when the overtaking is
done from right, it shows recklessness and
disregard of traffic laws and regulations. It is
likewise so when the overtaking is done while
another vehicle is approaching from the opposite
direction. This is a violation of Section 59(b) of
the Motor Vehicle Law (People vs. Songalla,
C.A., 67 O.G. 8330)

* Driving within the speed limit is not a guaranty

of due care. Speed limits impose the maximum
speed which should not be exceeded. The degree
of care required of a motorist is not governed by
speed limits but by the circumstances and
conditions obtaining in the place at the particular
time. So, if the maximum speed limit is 80
kilometers per hour and the vehicle driven at 30
kilometers per hour, but because of the very slow
pace of the vehicle, an accident occurs, the
observation of the speed limit will not be
acceptable evidence of due care. (people vs.
Caluza, C.A., 58 O.G. 8060)

Force majeure in relation to negligence.

> Force majeure has reference to an event which
cannot be foreseen or which being foreseen, is
inevitable. It implies an extraordinary
circumstance independent of the will of the actor
or perpetrator. In negligence, the immediate
personal harm or damage to property is
perceivable and can be prevented by the exercise
of reasonable care. As the event is foreseeable,
the failure of the actor to use reasonable care to
prevent harm or damage constitutes reckless