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Elements and Notes in Criminal Law Book II by RENE CALLANTA


TITLE ONE
CRIMES AGAINST NATIONAL SECURITY
Crimes against national security
1.

Treason (Art. 114);

2.

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

3.

Misprision of treason (Art. 116); and

4.

Espionage (Art. 117).

Crimes against the law of nations


1.

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

2.

Violation of neutrality (Art. 119);

3.

Corresponding with hostile country (Art. 120);

4.

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

5.

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

The crimes under this title can be prosecuted even if the criminal act or acts were committed outside the Philippine
territorial jurisdiction. However, prosecution can proceed only if the offender is within Philippine territory or brought
to the Philippines pursuant to an extradition treaty. This is one of the instances where the Revised Penal Code may be
given extra-territorial application under Article 2 (5) thereof. In the case of crimes against the law of nations, the
offender can be prosecuted whenever he may be found because the crimes are regarded as committed against
humanity in general.
Article 114
TREASON
ELEMENTS:
a. That the offender owes allegiance to the Government of the Philippines
b.

That there is a war in which the Philippines is involved

c.

That the offender either

1) Levies war against the government,


1. breech of allegiance
2. actual assembling of men
3. for the purpose of executing a treasonable design
2) Adheres to the enemies, giving them aid and comfort
1. breech of allegiance
2. adherence
3. giving aid or comfort to the enemy
Requirements of levying war
1) Actual assembling of men;
2) To execute a treasonable design by force;
3) Intent is to deliver the country in whole or in part to the enemy; and
4) Collaboration with foreign enemy or some foreign sovereign
Success is not important. What matters is the actual assembly of men and the execution of treasonable design by
force.

Ways of proving treason:


a.

2 witnesses testifying to same overt act

The testimonies must refer to the same act, place and moment of time. Treason cannot be proved by circumstantial
evidence or by extrajudicial confession.
Example: X saw arms landed in La Union and loaded into a motor vehicle. At this stage, not sufficient to
convict yet. Y later saw the arms unloaded in a warehouse. Will X + Y be sufficient witnesses to convict?
Answer: NO. Because the law requires that 2 witnesses see the SAME OVERT ACT.
b.

Confession of the accused in open court.


Arraignment, pre-trial, trial OK.
1.

If he has pleaded NOT guilty already during arraignment, he can still confess in open court by stating the
particular acts constituting treason.

2.

During trial, simply saying Im guilty is not enough.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
3.

Withdrawing plea of not guilty during arraignment not necessary

4.

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

Treason: breach of allegiance to the government, committed by a person who owes allegiance to it. Allegiance:
obligation of fidelity and obedience. It is permanent or temporary depending on whether the person is a citizen or
an alien.

Evident premeditation, superior strength and treachery are circumstances inherent in treason, and are, therefore,
not aggravating.

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

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

b.

Serving in a puppet government (ministerial functions) and in order to serve the populace is NOT
treasonous. But it is treason if: a) there is discretion involved; b) inflicts harm on Filipinos; c) it is
disadvantageous to them.

c.

Purpose of offender: to deliver the Philippines to enemy country; if merely to change officials not
treason

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

Only Filipino citizens or permanent resident aliens can be held liable

c.

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

Actual hostilities may determine the date of the commencement of war

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

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

Acts which strengthen or tend to strengthen the enemy in the conduct of war against the traitors country or that
which weaken and tend to weaken the power of the same.
Example: Financing arms procurement of enemy country. But giving of shelter is not necessarily giving aid and
comfort.

Adherence and giving aid or comfort must concur together.

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

Adherence may be proved by: (1) one witness; (2) from the nature of the act itself; (3) from the circumstances
surrounding the act.

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

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

Treason is a continuing offense. It can be committed by a single act or by a series of acts. It can be committed in one
single time or at different times and only one criminal intent. In construing the provisions relating to the commission of
several acts, the same must be done in pursuance or furtherance of the act of treason.
No matter how many acts of treason are committed by the offender, he will be liable for only one crime of treason.

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

In the imposition of the penalty for the crime of treason, the court may disregard the presence of mitigating and
aggravating circumstances. It may consider only the number, nature and gravity of the acts established during the trial.
The imposition of the penalty rests largely on the exercise of judicial discretion.
Defenses that may be availed of by the accused.
1. Duress or uncontrollable fear of immediate death; and
2. Lawful obedience to a de facto government.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

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

In the act of levying war or giving aid or comfort to the enemy, murder, robbery, arson or falsification may be
committed by the offender. BUT the offender does not commit the crime of treason complexed with common crimes
because such crimes are inherent to treason, being an indispensable element of the same.
Treason distinguished from Rebellion.
The manner in which both crimes are committed in the same. In treason however, the purpose of the offender is to
deliver the government to the enemy country or to a foreign power. In rebellion, the purpose of the rebels is to
substitute the government with their own form of government. No foreign power is involved.
Treason distinguished from Sedition.
In treason, the offender repudiates his allegiance to the government by means of force or intimidation. He does not
recognize the supreme authority of the State. He violates his allegiance by fighting the forces of the duly constituted
authorities.
In sedition, the offender disagrees with certain policies of the State and seeks to disturb public peace by raising a
commotion or public uprising.
Article 115
CONSPIRACY TO COMMIT TREASON

ELEMENTS:
a. In time of war
b.

2 or more persons come to an agreement to


1. levy war against the government, or
2. adhere to the enemies and to give them aid or comfort,

c.

They decide to commit it

ELEMENTS OF PROPOSAL TO COMMIT TREASON


a. In time of war
b.

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

Mere agreement and decisions to commit treason is punishable

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

While Treason as a crime should be established by the two-witness rule, the same is not observed when the crime
committed conspiracy to commit treason or when it is only a proposal to commit treason.

Article 116
MISPRISION OF TREASON

ELEMENTS:
a. That the offender must be owing allegiance to the government, and not a foreigner
b.

That he has knowledge of any conspiracy (to commit treason) against the government

c.

That he conceals or does not disclose and make known the same as soon as possible to the
governor or fiscal of the province or the mayor or fiscal of the city in which he resides
While in treason, even aliens can commit said crime because of the amendment to the article, no such amendment
was made in misprision of treason. Misprision of treason is a crime that may be committed only by citizens of the
Philippines.

Offender is punished as an accessory to the crime of treason

Take note that the offender is a principal to the crime of misprision of treason, yet he is penalized only as an
accessory. In the imposition of the penalty, the court is not bound by the provisions of Article 63 and 64, referring to
indivisible penalties. In the presence of mitigating and aggravating circumstances, the offender is punished two
degrees lower than the penalty for the crime of treason.
The criminal liability arises if the treasonous activity was still at the conspiratorial stage

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

Crime of omission

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
This is a felony by omission although committed with dolo, not with culpa.

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

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

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

Article 117
Espionage by entering, without authority therefor, warship, fort, or naval or military establishments or
reservation to obtain any information, plans, photographs or other data of a confidential nature relative to the
defense of the Philippines.

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

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

Under the first mode of committing espionage, the offender must have the intention to obtain information relative to
the defense of the PHIL. It is sufficient that he entered the prohibited premises. Here, the offender is any private
individual, whether an alien or a citizen of the Philippines, or a public officer.

Espionage by disclosing to the representative of a foreign nation the contents of the articles, data, or information
referred to in paragraph 1 of Article 117, which he had in his possession by reason of the public office holds
ELEMENTS:
a. That the offender is a public officer

b.

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

c.

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

Purpose: to gather data

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

Espionage: the offense of gathering, transmitting, or losing information respecting the national defense with the
intent or reason to believe that the information is to be used to the injury of the Philippines or the advantage of
any foreign nation. It is not conditioned on citizenship.

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

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

Commonwealth Act No. 616 An Act to Punish Espionage and Other Offenses against National Security
Acts punished
1.

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

2.

Unlawful disclosing of information affecting national defense;

3.

Disloyal acts or words in times of peace;

4.

Disloyal acts or words in times of war;

5.

Conspiracy to violate preceding sections;

6.

Harboring or concealing violators of law. and

7.

Photographing vital military information


CRIMES AGAINST LAWS OF NATIONS

In crimes against the law of nations, the offenders can be prosecuted anywhere in the world because these crimes are
considered as against humanity in general, like piracy and mutiny. Crimes against national security can be tried only

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
in the Philippines, as there is a need to bring the offender here before he can be made to suffer the consequences of
the law. The acts against national security may be committed abroad and still be punishable under our law, but it can
not be tried under foreign law.
Article 118
INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS

ELEMENTS:
a. That the offender performs unlawful or unauthorized acts
b.

That such acts provoke or give occasion for a war involving or liable to involve the Philippines or
expose Filipino citizens to reprisals on their persons or property
Crime is committed in time of peace, intent is immaterial

Inciting to war offender is any person

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

Example. X burns Chinese flag. If China bans the entry of Filipinos into China, that is already reprisal.
Article 119
VIOLATION OF NEUTRALITY
ELEMENTS:
a. That there is war in which the Philippines is not involved

b.

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

c.

That the offender violates such regulation

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

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

It is neutrality of the Phil that is violated

Congress has the right to declare neutrality

The violations can be done either by means of dolo or by means of culpa. So violation of neutrality can be committed
through reckless imprudence.
Article 120
CORRESPONDENCE WITH HOSTILE COUNTRY
ELEMENTS:
a. That it is in time of war in which the Philippines is involved
b.

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

c.

That the correspondence is either


1.

prohibited by the government, or

2.

carried on in ciphers or conventional signs, or

3.

containing notice or information which might be useful to the enemy

1
2
3

Circumstances qualifying the offense:


a. notice or information might be useful to the enemy

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

Correspondence to enemy country correspondence to officials of enemy country even if related to you.

It is not correspondence with private individual in enemy country

If ciphers were used, no need for prohibition

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

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

Doesnt matter if correspondence contains innocent matters if prohibited, punishable

b. offender intended to aid the enemy

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Article 121
FLIGHT TO ENEMYS COUNTRY

ELEMENTS
a. That there is a war in which the Philippines is involved
b.

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

c.

That the offender attempts to flee or go to enemy country

d.

That going to enemy country is prohibited by competent authority

Mere attempt consummates the crime

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

Alien resident may be guilty here.

Article 122
PIRACY

2 Ways of Committing Piracy


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

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

Elements:
a. That a vessel is on the high seas/Philippine waters
b.

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

c.

That the offenders


1.

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

2.

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

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

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

Piracy in internal waters jurisdiction is only with Philippine courts

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

Piracy
Robbery or forcible degradation on the high seas,
without lawful authority and done with animo
lucrandi and in the spirit and intention of universal
hostility.
Intent to gain is an element.
Attack from outside. Offenders are strangers to the
vessel.

Mutiny
Unlawful resistance to a superior officer, or the raising of
commotion and disturbances on board a ship against the
authority of its commander
No criminal intent
Attack from the inside.

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

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

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

Note, however, that in Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is
penalized as a crime distinct from piracy. Said section penalizes any person who knowingly and in any manner aids or
protects pirates, such as giving them information about the movement of the police or other peace officers of the

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
government, or acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom;
or who directly or indirectly abets the commission of piracy. Also, it is expressly provided in the same section that
the offender shall be considered as an accomplice of the principal offenders and punished in accordance with the
Revised Penal Code. This provision of Presidential Decree No. 532 with respect to piracy in Philippine water has not
been incorporated in the Revised Penal Code. Neither may it be considered repealed by Republic Act No. 7659 since
there is nothing in the amendatory law is inconsistent with said section. Apparently, there is still the crime of abetting
piracy in Philippine waters under Presidential Decree No. 532.
Considering that the essence of piracy is one of robbery, any taking in a vessel with force upon things or with violence
or intimidation against person is employed will always be piracy. It cannot co-exist with the crime of robbery.
Robbery, therefore, cannot be committed on board a vessel. But if the taking is without violence or intimidation on
persons or force upon things, the crime of piracy cannot be committed, but only theft.

Elements of mutiny
1) The vessel is on the high seas or Philippine waters;
2) Offenders are either members of its complement, or passengers of the vessel;
3) Offenders either
a.

attack or seize the vessel; or

b.

seize the whole or part of the cargo, its equipment, or personal belongings of the crew or
passengers.

Mutiny is the unlawful resistance to a superior officer, or the raising of commotions and disturbances aboard a ship
against the authority of its commander.
Article 123
QUALIFIED PIRACY

QUALIFYING CIRCUMSTANCES:
a. Whenever they have seized a vessel by boarding or firing upon the same
b.

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

c.

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

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

Parricide/infanticide should be included (Judge Pimentel)

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

In piracy, where rape, murder or homicide is committed, the mandatory penalty of death is imposable. This means that
even if the accused enters a plea of guilty, the penalty of death will still be imposed because death is a single and
indispensable penalty. (People vs. Rodriguez, 135 SCRA 485)
The penalty for qualified piracy is reclusion perpetua to death. If any of the circumstances enumerated under the law
is proven or established, the mandatory penalty of death should be imposed. The presence of mitigating or aggravating
circumstances will be ignored by the court.
Although in Article 123 merely refers to qualified piracy, there is also the crime of qualified mutiny. Mutiny is
qualified under the following circumstances:
(1)

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

(2)

When the mutiny is accompanied by rape, murder, homicide, or physical injuries.

Note that the first circumstance which qualifies piracy does not apply to mutiny.
Republic Act No. 6235 (The Anti Hi-Jacking Law)
Anti hi-jacking is another kind of piracy which is committed in an aircraft. In other countries, this crime is known as
aircraft piracy.
Four situations governed by anti hi-jacking law:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
(1)

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

(2)

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

(3)

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

(4)

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

Between numbers 1 and 2, the point of distinction is whether the aircraft is of Philippine registry or foreign registry.
The common bar question on this law usually involves number 1. The important thing is that before the anti hijacking law can apply, the aircraft must be in flight. If not in flight, whatever crimes committed shall be governed by
the Revised Penal Code. The law makes a distinction between aircraft of a foreign registry and of Philippine registry .
If the aircraft subject of the hi-jack is of Philippine registry, it should be in flight at the time of the hi-jacking.
Otherwise, the anti hi-jacking law will not apply and the crime is still punished under the Revised Penal Code. The
correlative crime may be one of grave coercion or grave threat. If somebody is killed, the crime is homicide or murder,
as the case may be. If there are some explosives carried there, the crime is destructive arson. Explosives are by nature
pyro-techniques. Destruction of property with the use of pyro-technique is destructive arson. If there is illegally
possessed or carried firearm, other special laws will apply.
On the other hand, if the aircraft is of foreign registry, the law does not require that it be in flight before the anti
hi-jacking law can apply. This is because aircrafts of foreign registry are considered in transit while they are in
foreign countries. Although they may have been in a foreign country, technically they are still in flight, because they
have to move out of that foreign country. So even if any of the acts mentioned were committed while the exterior
doors of the foreign aircraft were still open, the anti hi-jacking law will already govern.
Note that under this law, an aircraft is considered in flight from the moment all exterior doors are closed following
embarkation until such time when the same doors are again opened for disembarkation. This means that there are
passengers that boarded. So if the doors are closed to bring the aircraft to the hangar, the aircraft is not considered as
in flight. The aircraft shall be deemed to be already in flight even if its engine has not yet been started.

Questions & Answers


1.
The pilots of the Pan Am aircraft were accosted by some armed men and were told to proceed to
the aircraft to fly it to a foreign destination. The armed men walked with the pilots and went on board the aircraft.
But before they could do anything on the aircraft, alert marshals arrested them. What crime was committed?
The criminal intent definitely is to take control of the aircraft, which is hi-jacking. It is a question now of
whether the anti-hi-jacking law shall govern.
The anti hi-jacking law is applicable in this case. Even if the aircraft is not yet about to fly, the
requirement that it be in flight does not hold true when in comes to aircraft of foreign registry. Even if the problem
does not say that all exterior doors are closed, the crime is hi-jacking. Since the aircraft is of foreign registry, under
the law, simply usurping or seizing control is enough as long as the aircraft is within Philippine territory, without the
requirement that it be in flight.
Note, however, that there is no hi-jacking in the attempted stage.
attempted stage is not punishable.

This is a special law where the

2.
A Philippine Air Lines aircraft is bound for Davao. While the pilot and co-pilot are taking their
snacks at the airport lounge, some of the armed men were also there. The pilots were followed by these men on their
way to the aircraft. As soon as the pilots entered the cockpit, they pulled out their firearms and gave instructions
where to fly the aircraft. Does the anti hi-jacking law apply?
No. The passengers have yet to board the aircraft. If at that time, the offenders are apprehended, the law
will not apply because the aircraft is not yet in flight. Note that the aircraft is of Philippine registry.
3.
While the stewardess of a Philippine Air Lines plane bound for Cebu was waiting for the passenger
manifest, two of its passengers seated near the pilot surreptitiously entered the pilot cockpit. At gunpoint, they
directed the pilot to fly the aircraft to the Middle East. However, before the pilot could fly the aircraft towards the
Middle East, the offenders were subdued and the aircraft landed. What crime was committed?
The aircraft was not yet in flight. Considering that the stewardess was still waiting for the passenger
manifest, the doors were still open. Hence, the anti hi-jacking law is not applicable. Instead, the Revised Penal Code
shall govern. The crime committed was grave coercion or grave threat, depending upon whether or not any serious
offense violence was inflicted upon the pilot.
However, if the aircraft were of foreign registry, the act would already be subject to the anti hi-jacking law
because there is no requirement for foreign aircraft to be in flight before such law would apply. The reason for the
distinction is that as long as such aircraft has not returned to its home base, technically, it is still considered in
transit or in flight.
As to numbers 3 and 4 of Republic Act No. 6235, the distinction is whether the aircraft is a passenger aircraft or a cargo
aircraft. In both cases, however, the law applies only to public utility aircraft in the Philippines. Private aircrafts
are not subject to the anti hi-jacking law, in so far as transporting prohibited substances are concerned.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
If the aircraft is a passenger aircraft, the prohibition is absolute. Carrying of any prohibited, flammable, corrosive, or
explosive substance is a crime under Republic Act No. 6235. But if the aircraft is only a cargo aircraft, the law is
violated only when the transporting of the prohibited substance was not done in accordance with the rules and
regulations prescribed by the Air Transportation Office in the matter of shipment of such things. The Board of
Transportation provides the manner of packing of such kind of articles, the quantity in which they may be loaded at
any time, etc. Otherwise, the anti hi-jacking law does not apply.
However, under Section 7, any physical injury or damage to property which would result from the carrying or loading
of the flammable, corrosive, explosive, or poisonous substance in an aircraft, the offender shall be prosecuted not
only for violation of Republic Act No. 6235, but also for the crime of physical injuries or damage to property, as the
case may be, under the Revised Penal Code. There will be two prosecutions here. Other than this situation, the crime
of physical injuries will be absorbed. If the explosives were planted in the aircraft to blow up the aircraft, the
circumstance will qualify the penalty and that is not punishable as a separate crime for murder. The penalty is
increased under the anti hi-jacking law.
All other acts outside of the four are merely qualifying circumstances and would bring about higher penalty. Such
acts would not constitute another crime. So the killing or explosion will only qualify the penalty to a higher one.
Questions & Answers
1.
were committed?

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

The crime remains to be a violation of the anti hi-jacking law, but the penalty thereof shall be higher
because a passenger or complement of the aircraft had been killed. The crime of homicide or murder is not
committed.
2.
were committed?

The hi-jackers threatened to detonate a bomb in the course of the hi-jack. What crime or crimes

Again, the crime is violation of the anti hi-jacking law. The separate crime of grave threat is not
committed. This is considered as a qualifying circumstance that shall serve to increase the penalty.
TITLE TWO
CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE
Crimes against the fundamental laws of the State
1.

Arbitrary detention (Art. 124);

2.

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

3.

Delaying release (Art. 126);

4.

Expulsion (Art. 127);

5.

Violation of domicile (Art. 128);

6.

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

7.

Searching domicile without witnesses (Art. 130);

8.

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

9.

Interruption of religious worship (Art. 132); and

10.

Offending the religious feelings (Art. 133);

Under this title, the offenders are public officers, except as to the last crime offending the religious feelings
under Article 133, which refers to any person. The public officers who may be held liable are only those acting under
supposed exercise of official functions, albeit illegally. But private persons may also be liable under this title as when
a private person conspires with a public officer. What is required is that the principal offender must be a public
officer. Thus, if a private person conspires with a public officer, or becomes an accessory or accomplice, the private
person also becomes liable for the same crime. But a private person acting alone cannot commit the crimes under
Article 124 to 132 of this title.
Classes of Arbitrary Detention:
a. By detaining a person without legal ground
b. Delay in the delivery of detained persons to the proper judicial authorities
c. Delaying release

Article 124
ARBITRARY DETENTION

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

10
Elements and Notes in Criminal Law Book II by RENE CALLANTA

b.

That he detains a person (actual restraint).

c.

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

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

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

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

In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains another was held to be guilty of
the crime of arbitrary detention. This is because he is a person in authority vested with the jurisdiction to maintain
peace and order within his barangay. In the maintenance of such peace and order, he may cause the arrest and
detention of troublemakers or those who disturb the peace and order within his barangay. But if the legal basis for the
apprehension and detention does not exist, then the detention becomes arbitrary.

Legal grounds for the detention of any person:


a. commission of a crime
b.

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

c.

escaped prisoner

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

Without legal grounds:


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

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

Grounds for warrantless arrest:


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

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

For escaped prisoner no need for warrant

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

Arbitrary detention can be committed thru simple imprudence or negligence. (People vs. Misa)
Periods of Detention penalized:
1. Detention not exceeding three days;
2. Detention for more than three days but not more than 15 days;
3. Detention for more than 15 days but not more than 6 months; and
4. Detention for more than 6 months.

Continuing crime is different from a continuous crime

Ramos v. Enrile: Rebels later on retire. According to the SC, once you have committed rebellion and have not
been punished or amnestied, then the rebels continue to engage in rebellion, unless the rebels renounce his
affiliation. Arrest can be made without a warrant because this is a continuing crime.
Distinction between arbitrary detention and illegal detention
1.

In arbitrary detention -The principal offender must be a public officer. Civilians cannot commit the crime of arbitrary detention
except when they conspire with a public officer committing this crime, or become an accomplice or
accessory to the crime committed by the public officer; and
The offender who is a public officer has a duty which carries with it the authority to detain a person.

2.

In illegal detention -The principal offender is a private person. But a public officer can commit the crime of illegal detention
when he is acting in a private capacity or beyond the scope of his official duty, or when he becomes an
accomplice or accessory to the crime committed by a private person.
The offender, even if he is a public officer, does not include as his function the power to arrest and detain a
person, unless he conspires with a public officer committing arbitrary detention.

11
Elements and Notes in Criminal Law Book II by RENE CALLANTA
Whether the crime is arbitrary detention or illegal detention, it is necessary that there must be an actual restraint of
liberty of the offended party. If there is no actual restraint, as the offended party may still go to the place where he
wants to go, even though there have been warnings, the crime of arbitrary detention or illegal detention is not
committed. There is either grave or light threat.
However, if the victim is under guard in his movement such that there is still restraint of liberty, then the crime of
either arbitrary or illegal detention is still committed.
Distinction between arbitrary detention and unlawful arrest
(1)

As to offender
In arbitrary detention, the offender is a public officer possessed with authority to make arrests.
In unlawful arrest, the offender may be any person.

(2)

As to criminal intent
In arbitrary detention, the main reason for detaining the offended party is to deny him of his liberty.
In unlawful arrest, the purpose is 1) to accuse the offended party of a crime he did not commit; 2) to deliver
the person to the proper authority; and 3) to file the necessary charges in a way trying to incriminate him.

When a person is unlawfully arrested, his subsequent detention is without legal grounds.
Article 125
DELAY IN THE DELIVERY OF DETAINED PERSONS

ELEMENTS:
a. That the offender is a public officer or employee
b.

That he has detained a person for some legal grounds

c.

That he fails to deliver such person to the proper judicial authority within:
1. 12 hours, if detained for crimes/offenses punishable by light penalties, or their equivalent
2. 18 hours, for crimes/offenses punishable by correctional penalties, or their equivalent or
3. 36 hours, for crimes/offenses punishable by capital punishment or afflictive penalties, or their
equivalent
Article 125 covers situations wherein the person detained has been arrested without a warrant but his arrest is
nonetheless lawful. It is a felony committed by omission because of the failure of the offender to deliver the detained
person to the proper judicial authority within 12 hours, 18 hours and 36 hours as the case may be.
At the beginning, the detention is legal since it is in the pursuance of a lawful arrest. However, the detention becomes
arbitrary when the period thereof exceeds 12, 18 or 36 hours, as the case may be, depending on whether the crime is
punished by light, correctional or afflictive penalty or their equivalent.

Really means delay in filing necessary information or charging of person detained in court.
May be waived if a preliminary investigation is asked for.

Under the Revised Rules of Court, when the person arrested is arrested for a crime which gives him the right to
preliminary investigation and he wants to avail his right to a preliminary investigation, he would have to waive in
writing his rights under Article 125 so that the arresting officer will not immediately file the case with the court that
will exercise jurisdiction over the case. If he does not want to waive this in writing, the arresting officer will have to
comply with Article 125 and file the case immediately in court without preliminary investigation. In such case, the
arrested person, within five days after learning that the case has been filed in court without
preliminary
investigation, may ask for preliminary investigation. In this case, the public officer who made the arrest will no longer
be liable for violation of Article 125.

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

Delivery of detained person consists in making charge of filing a compliant against the prisoner with the proper judicial
authority. It does not involve the physical delivery of the prisoner before the judge (Sayo vs. Chief of Police).

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

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

What is length of waiver? Light offense 5 days. Serious and less serious offenses 7 to 10 days. (Judge
Pimentel)

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

Q. Within what period should a police officer who has arrested a person under a warrant of arrest turn over
the arrested person to the judicial authority?
A. There is no time limit specified except that the return must be made within a reasonable time. The
period fixed by law under Article 125 does not apply because the arrest was made by virtue of a warrant of arrest.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

If offender is a private person, crime is illegal detention

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

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

Arbitrary Detention (124)


Detention is illegal from the beginning.

Delay in Delivery of Detained (125)


Detention is legal in the beginning, but illegality starts from
the expiration of the specified periods without the persons
detained having been delivered to the proper judicial
authority.

Article 126
DELAYING RELEASE
ELEMENTS:
a. That the offender is a public officer or employee

b.

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

c.

That the offender without good reason delays:


1.

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

2.
3.

the performance of such judicial or executive order for the release of the prisoner, or
the proceedings upon a petition for the release of such person

Three acts are punishable:


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

delaying the service of notice of such order to said prisoner

c.

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

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

Provision does not include legislation

Article 127
EXPULSION
ELEMENTS:
a. That the offender is a public officer or employee

b.

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

c.

That the offender is not authorized to do so by law

2 acts punishable:
a. by expelling a person from the Philippines
b.

by compelling a person to change his residence

The essence of this crime is coercion but the specific crime is expulsion when committed by a public officer. If
committed by a private person, the crime is grave coercion.
In the Philippines, only the President of the Republic has the power to deport aliens whose continued stay in the
country constitutes a menace to the peace and safety of the community.
In the case of Filipino citizens, only the court, by final judgment, can order a person to change his residence.
In Villavicencio v. Lukban, 39 Phil 778, the mayor of the City of Manila wanted to make the city free from
prostitution. He ordered certain prostitutes to be transferred to Davao, without observing due processes since they
have not been charged with any crime at all. It was held that the crime committed was expulsion.

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


Questions & Answers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
1.
Certain aliens were arrested and they were just put on the first aircraft which brought them to the
country so that they may be out without due process of law. Was there a crime committed?
Yes. Expulsion.
2.

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

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

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

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

Article 128
VIOLATION OF DOMICILE
ELEMENTS:
a. That the offender is a public officer or employee

b.

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

c.

That he commits any of the following acts:


1.

entering any dwelling against the will of the owner thereof

2.

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

3.

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

Aggravating Circumstance (medium and maximum of penalty imposed):


a. Offense committed at nighttime
b.

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

In order to commit this crime, the entry must be against the will of the owner. If the entry is only without the consent
of the owner, the crime of violation of domicile is not committed.
The prohibition may be expressed or implied. If the signs Do not enter and Strangers keep out are posted in front
of the house or dwelling, then the prohibition is express. If the door is locked, or even if it is open but these are
barriers to indicate the manifest intention of the owner to bar strangers from entering, there is implied prohibition.
The primary object of the law is to preserve the privacy of abode of the offended party. Hence, if the privacy is
already lost, as when the offender has been allowed by the owner to enter the dwelling together with other persons,
any subsequent change of attitude will not restore the privacy which was already lost. When privacy is waived, trespass
to dwelling or violation of domicile cannot be committed.

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

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

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

Under Rule 113(sec. 11) of the Revised Rules of Court, when a person to be arrested enters a premise and closes
it thereafter, the public officer, after giving notice of an arrest, can break into the premise. He shall not be
liable for violation of domicile.

3 acts punishable:
a. person enters dwelling w/o consent or against the will
In the plain view doctrine, public officer should be legally entitled to be in the place where the effects were
found. If he entered the place illegally and he saw the effects, doctrine inapplicable; thus, he is liable for
violation of domicile.
b.

person enters and searches for papers and effects


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

c.

person entered secretly and refuses to leave after being asked to


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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

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

There are only three recognized instances when search without a warrant is considered valid, and, therefore, the
seizure of any evidence done is also valid. Outside of these, search would be invalid and the objects seized would not
be admissible in evidence.
(1)

Search made incidental to a valid arrest;

(2)

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

(3)

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

Papers and effects need not be part of a crime.

Article 129
SEARCH WARRANTS MALICIOUSLY OBTAINED
ELEMENTS:
a. That the offender is a public officer or employee

b.

That he procures a search warrant

c.

That there is no just cause

In order that a search warrant may be issued, it must be based on probable cause in connection with one offense,
to be determined by a judge after examination under oath of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized.

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

Although void, the search warrant is entitled to respect because of presumption of regularity. One remedy is a
motion to quash the search warrant, not refusal to abide by it. The public officer may also be prosecuted for
perjury, because for him to succeed in obtaining a search warrant without a probable cause, he must have
perjured himself or induced someone to commit perjury to convince the court.
The true test of lack of just cause is whether the sworn statement filed in support of the application for search
warrant has been done in such a manner that perjury could be charged and the affiant can be held liable for making
such false statement. The oath required refers to the truth of the facts within the personal knowledge of the applicant
and his witnesses.
ABUSE IN THE SERVICE OF WARRANT OR EXCEEDING AUTHORITY OR USING UNNECESSARY SEVERITY IN EXECUTING A
SEARCH WARRANT LEGALLY PROCURED
ELEMENTS:
a. That the offender is a public officer or employee
b.

That he has legally procured a search warrant

c.

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

Search warrant is valid for 10 days from its date

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

No just cause warrant is unjustified

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

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

Malicious warrant. Example. X was a respondent of a search warrant for illegal possession of firearms. A return
was made. The gun did not belong to X and the witness had no personal knowledge that there is a gun in that
place.

Abuse examples:
a. X owner was handcuffed while search was going-on.
b.

Tank was used to ram gate prior to announcement that a search will be made
The search warrant is not a license to commit destruction.

15
Elements and Notes in Criminal Law Book II by RENE CALLANTA
c.

Persons who were not respondents were searched

Article 130
SEARCHING DOMICILE WITHOUT WITNESSES

ELEMENTS :
a. That the offender is a public officer or employee
b.

That he is armed with a search warrant legally procured

c.

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

d.

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

Order of those who must witness the search:


a.

Homeowner

b.

Members of the family of sufficient age and discretion

c.

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

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

Article 130 has no application to search and seizure made on moving vehicles because the application of this law is
limited to dwelling and personal properties such as papers and effects found therein.
There are searches and seizures which are authorized by law and which can be done without the attendance of
witnesses. For instance, the Tariff and Customs Code authorizes persons with police authority under Sec. 2203, to
enter; pass through or search any land, enclosure, warehouse, store or building, not being used as a dwelling house;
and to inspect, search and examine any vessel or aircraft, and any trunk, package, box or envelope, or any person on
board, or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable
or prohibited article introduced into the Philippines contrary to law.
Article 131
PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL MEETINGS

ELEMENTS:
a. Offender is a public officer or employee
b.

He performs any of the ff. acts:


1.

prohibiting or interrupting, without legal ground the holding of a peaceful meeting, or dissolving
the same (e.g. denial of permit in arbitrary manner).

2.

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

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

Two criteria to determine whether Article 131 would be violated:


(1)

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

(2)

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

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

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

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

Meeting is subject to regulation

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

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

Interrupting and dissolving a meeting of the municipal council by a public officer is a crime against the legislative
body, not punishable under this article

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

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

Prohibition must be without lawful cause or without lawful authority

Those holding peaceful meetings must comply with local ordinances. Example: Ordinance requires permits for
meetings in public places. But if police stops a meeting in a private place because theres no permit, officer is
liable for stopping the meeting.

Distinctions between prohibition, interruption, or dissolution of peaceful meetings under Article 131, and tumults and
other disturbances, under Article 153
(1)

As to the participation of the public officer


In Article 131, the public officer is not a participant. As far as the gathering is concerned, the public officer
is a third party.
If the public officer is a participant of the assembly and he prohibits, interrupts, or dissolves the same,
Article 153 is violated if the same is conducted in a public place.

(2)

As to the essence of the crime


In Article 131, the offender must be a public officer and, without any legal ground, he prohibits, interrupts,
or dissolves a peaceful meeting or assembly to prevent the offended party from exercising his freedom of
speech and that of the assembly to petition a grievance against the government.
In Article 153, the offender need not be a public officer. The essence of the crime is that of creating a
serious disturbance of any sort in a public office, public building or even a private place where a public
function is being held.

Article 132
INTERRUPTION OF RELIGIOUS WORSHIP

ELEMENTS:
a. That the officer is a public officer or employee
b.

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

c.

That the offender prevents or disturbs the same

Circumstance qualifying the offense: if committed with violence or threats

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

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

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

When priest is solemnizing marriage, he is a person in authority, although in other cases, hes not.

Article 133
OFFENDING RELIGIOUS FEELINGS

ELEMENTS:
a. That the acts complained of were performed
1.
2.

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

b.

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

c.

The offender is any person

d.

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

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

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

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

There must be deliberate intent to hurt the feelings of the faithful, mere arrogance or rudeness is not enough

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
In determining whether an act is offensive to the feelings of the faithful, the same must be viewed or judged from the
standpoint of the offended religion and not from the point of view of the offender (People vs. Baes, 68 Phil. 203).

CRIME
Prohibition,
Interruption
and
Dissolution
of
Peaceful
Meeting
(131)
Interruption
of
Religious
Worship
(132)

Nature of Crime
Crime
against
the
fundamental law of the
state

Who are Liable


Public
officers,
Outsiders

If Element Missing
If not by public officer = tumults

Crime
against
the
fundamental law of the
state

Public
Outsiders

officers,

Offending
Religious
(133)

Crime against public order

Public
private
outsiders

officers,
persons,

If by insider = unjust vexation


If not religious = tumult or alarms
If not notoriously offensive = unjust
vexation
If not tumults = alarms and scandal
If meeting illegal at onset =
inciting to sedition or rebellion

the
Feeling

TITLE THREE
CRIMES AGAINST PUBLIC ORDER
Crimes against public order
1.

Rebellion or insurrection (Art. 134);


Coup d etat (Art. 134-A)

2.

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

3.

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

4.

Inciting to rebellion (Art. 138);

5.

Sedition (Art. 139);

6.

Conspiracy to commit sedition (Art. 141);

7.

Inciting to sedition (Art. 142);

8.

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

9.

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

10.

Violation of parliamentary immunity (Art. 145);

11.

Illegal assemblies (Art. 146);

12.

Illegal associations (Art. 147);

13.

Direct assaults (Art. 148);

14.

Indirect assaults (Art. 149);

15.

Disobedience to summons issued by Congress, its committees, etc., by the constitutional commissions, its
committees, etc. (Art. 150);

16.

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
17.

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

18.

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

19.

Alarms and scandals (Art. 155);

20.

Delivering prisoners from jails (Art. 156);

21.

Evasion of service of sentence (Art. 157);

22.

Evasion on occasion of disorders (Art. 158);

23.

Violation of conditional pardon (Art. 159); and

24.

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

Article 134
REBELLION OR INSURRECTION

ELEMENTS:
a. That there be

b.

1.

public uprising and

2.

taking arms against the government (force/violence)

That the purpose of the uprising or movement is either


1. to remove from the allegiance to said government or its laws
4
5
i. the territory of the Philippines or any part thereof, or
6
7
ii. any body of land, naval or other armed forces, or
2

To deprive the chief executive or congress, wholly or partially, of any of their powers or
prerogatives

Persons liable for rebellion


a. Any person who:
1. promotes
2. maintains, or
3. heads a rebellion or insurrection; or
b.

Any person who, while holding any public office or employment, takes part therein by:
1. engaging in war against the forces of the government
2.

destroying property or committing serious violence

3.

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

4.

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

The essence of this crime is a public uprising with the taking up of arms. It requires a multitude of people. It aims to
overthrow the duly constituted government. It does not require the participation of any member of the military or
national police organization or public officers and generally carried out by civilians. Lastly, the crime can only be
committed through force and violence.
The crime of rebellion cannot be committed by a single individual. Invariably, it is committed by several persons for
the purpose of overthrowing the duly constituted or organized government. In the Philippines, what is known to the
ordinary citizen as a symbol of Government would be the barangay, represented by its officials; the local government
represented by the provincial and municipal officials; and the national government represented by the President, the
Chief Justice and the Senate President and the Speaker of the House of Representatives.

Success is immaterial, purpose is always political

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

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

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

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

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

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

Actual clash of arms w/ the forces of the govt, not necessary to convict the accused who is in conspiracy w/
others actually taking arms against the govt

Purpose of the uprising must be shown but it is not necessary that it be accomplished

A change of government w/o external participation

RISING PUBLICLY and TAKING ARMS AGAINST GOVERNMENT actual participation. If there is no public uprising, the
crime is of direct assault.

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

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

There must be a public apprising and taking up of arms for the specified purpose or purposes mentioned in
Article 134. The acts of the accused who is not a member of the Hukbalahap organization of sending cigarettes and
food supplies to a Huk leader; the changing of dollars into pesos for a top level communist; and the helping of Huks in
opening accounts with the bank of which he was an official, do not constitute Rebellion. (Carino vs. People, et al., 7
SCRA 900).

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

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

Rebellion cannot be complexed with any other crime.

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

20
Elements and Notes in Criminal Law Book II by RENE CALLANTA
the amendment, common crimes involving killings, and/or destructions of property, even though committed by rebels
in furtherance of rebellion, shall bring about complex crimes of rebellion with murder/homicide, or rebellion with
robbery, or rebellion with arson as the case may be.
To reiterate, before Article 135 was amended, a higher penalty is imposed when the offender engages in war against
the government. "War" connotes anything which may be carried out in pursuance of war. This implies that all acts of
war or hostilities like serious violence and destruction of property committed on occasion and in pursuance of rebellion
are component crimes of rebellion which is why Article 48 on complex crimes is inapplicable. In amending Article135,
the acts which used to be component crimes of rebellion, like serious acts of violence, have been deleted. These are
now distinct crimes. The legal obstacle for the application of Article 48, therefore, has been removed. Ortega says
legislators want to punish these common crimes independently of rebellion. Ortega cites no case overturning Enrile
v. Salazar.

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

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

Furthermore, it is a continuing crime such along with the crime of conspiracy or proposal to commit such
A private crime may be committed during rebellion. Examples: killing, possessions of firearms, illegal association
are absorbed. Rape, even if not in furtherance of rebellion cannot be complexed

If killing, robbing were done for private purposes or for profit, without any political motivation, the crime would
be separately be punished and would not be embraced by rebellion (People v. Fernando)

Person deemed leader of rebellion in case he is unknown:


Any person who in fact:
a. directed the others
b. spoke for them
c. signed receipts and other documents issued in their name
d. performed similar acts on behalf of the rebels

Distinctions between rebellion and sedition


(1)

As to nature
In rebellion, there must be taking up or arms against the government.
In sedition, it is sufficient that the public uprising be tumultuous.

(2)

As to purpose
In rebellion, the purpose is always political.

In sedition, the purpose may be political or social. Example: the uprising of squatters against Forbes park
residents. The purpose in sedition is to go against established government, not to overthrow it.
Article 134-A
COUP D ETAT

a.

ELEMENTS:
Swift attack

b.

Accompanied by violence, intimidation, threat, strategy or stealth

c.

Directed against:
1.

duly constituted authorities

2.

any military camp or installation

3.

communication networks or public utilities


4.

other facilities needed for the exercise and continued possession of power

d. Singly or simultaneously carried out anywhere in the Philippines


d.

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

e.

With or without civilian support or participation

f.

Purpose of seizing or diminishing state power

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

The objective may not be to overthrow the government but only to destabilize or paralyze the government
through the seizure of facilities and utilities essential to the continued possession and exercise of governmental
powers. It requires as principal offender a member of the AFP or of the PNP organization or a public officer with

21
Elements and Notes in Criminal Law Book II by RENE CALLANTA
or without civilian support. Finally, it may be carried out not only by force or violence but also through stealth,
threat or strategy.
How do you distinguish between coup detat and rebellion?
Rebellion is committed by any person whether a private individual or a public officer whereas in coup detat, the
offender is a member of the military or police force or holding a public office or employment.
In rebellion, the object is to alienate the allegiance of a people in a territory, whether wholly or partially, from the
duly constituted government; in coup detat, the object or purpose is to seize or diminish state power.
In both instances, the offenders intend to substitute themselves in place of those who are in power.

Nature
of
Crime
Overt Acts

Purpose of
objective

Treason (114)

Rebellion (134)

Crime against National


Security
levying war against the
govt;
OR
adherence and giving
aid or comfort to
enemies
Deliver the govt to
enemy during war

Crime against Public


Order
Public uprising
AND
Taking up arms against
the govt
See article.

Coup
detat
(134-A)
Crime
against
Public Order
See article.

Sedition (139)

Seizing
or
diminishing state
power.

See
enumeration
article.

Crime against Public Order


Rising
publicly
or
tumultuously (caused by
more than 3 armed men or
provided with means of
violence)
in

Article 135
PENALTIES

Who are liable?


a. Any person who:
1. Promotes
2. Maintains
3. heads a rebellion or insurrection
b.

c.

Any person who, while holding any public office or employment, takes part therein
1. engaging in war against the forces of the govt
2.

destroying property or committing serious violence

3.

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

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

When conspiracy is present in the commission of the crime, the act of one is the act of all. In committing rebellion and
coup detat, even if conspiracy as a means to commit the crime is established, the principal of criminal liability under
Article 17 of the Revised Penal Code is not followed.
In Government Service
Not in Government Service
Anyone who leads, directs, commands others to undertake a Anyone who participates or in an manner, supports, finances,
coup.
abets, aids in a coup.

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

Diverting public funds is malversation absorbed in rebellion


NOTES:
a. Public officer must take active part because mere silence or omission not punishable in rebellion
b.

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

c.

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

Subversion, just like the crimes of rebellion, conspiracy or proposal to commit the crimes of rebellion or subversion and
crimes or offenses committed in furtherance thereof constitute direct assaults against the State and are in the nature
of continuing crimes ( Umil vs. Ramos).
d.

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

Article 136
CONSPIRACY TO COMMIT COUP D ETAT, REBELLION OR INSURRECTION

ELEMENTS:
a. 2 more persons come to an agreement to rise publicly and take arms against the government

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
b.

For any of the purposes of rebellion

c.

They decide to commit it

PROPOSAL TO COMMIT COUP D ETAT, REBELLION OR INSURRECTION (136)

ELEMENTS:
a.

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

b.

For any of the purposes of rebellion

c.

Proposes its execution to some other person/s

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

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

Conspiracy must be immediately prior to rebellion

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

Article 137
DISLOYALTY OF PUBLIC OFFICERS AND EMPLOYEES

ACTS PUNISHED:
a. Failing to resist rebellion by all the means in their power
b.

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

c.

Accepting appointment to office under rebels

Presupposes existence of rebellion

Must not be in conspiracy with rebels or coup plotters

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

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

The collaborator must not have tried to impose the wishes of the rebels on the people.

Disloyalty as a crime is not limited to rebellion alone but should now include the crime of coup detat. Rebellion is
essentially a crime committed by private individuals while coup detat is a crime that should be classified as a crime
committed by public officers like malversation, bribery, dereliction of duty and violations of the anti-Graft and Corrupt
Practices Act.
If the public officer or employee, aside from being disloyal, does or commits acts constituting the crime of rebellion or
coup detat, he will no longer be charged for the simple crime of disloyalty but he shall be proceeded against for the
grave offense of rebellion or coup detat.
Article 138
INCITING TO REBELLION OR INSURRECTION

ELEMENTS:
a. That the offender does not take arms or is not in open hostility against the government
b.

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

c.

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

Intentionally calculated to seduce others to rebellion

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

One who promotes, maintains or heads a rebellion and who act at the same time incites or influences others to join
him in his war efforts against the duly constituted government cannot be held criminally liable for the crime of inciting
to rebellion because, as the principal to the crime of rebellion, the act of inciting to commit a rebellion is inherent to
the graver crime of rebellion.
Proposal to Commit Rebellion (136)
The person who proposes has decided to commit
rebellion.

Inciting to Rebellion (138)


Not required that the offender has decided to commit
rebellion.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
The person who proposes the execution of the crime
uses secret means.

The inciting is done publicly.

Article 139
SEDITION

ELEMENTS:
a. That the offenders rise
1.

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

2.

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

b.

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

c.

That the offenders employ any of those means to attain any of the following objects:
1.

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

2.

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

3.

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

4.

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

5.

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

Sedition: raising of commotion or disturbances in the State. Its ultimate object is a violation of the public peace
or at least such measures that evidently engenders it.

The crime of sedition is committed by rising publicly and tumultuously. The two elements must concur.

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

Difference from rebellion object or purpose of the uprising.

For sedition sufficient that uprising is tumultuous. In rebellion there must be


government.

taking up of arms against the

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


Tumultuous is a situation wherein the disturbance or confusion is caused by at least four persons. There is no
requirement that the offenders should be armed.

Preventing public officers from freely exercising their functions

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

Public uprising and the object of sedition must concur

Q: Are common crimes absorbed in sedition?

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

Preventing election through legal means NOT sedition

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

Persons liable for sedition:


a. leader of the sedition, and
b.

other persons participating in the sedition

The objective of the law in criminalizing sedition is to put a limit to the freedom of expression or the right of the
people to assemble and petition the government for redress of grievance.

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

24
Elements and Notes in Criminal Law Book II by RENE CALLANTA
Article 141.
Conspiracy to Commit Sedition
In this crime, there must be an agreement and a decision to rise publicly and tumultuously to attain any of the objects
of sedition.
There is no proposal to commit sedition.
The conspiracy must be to prevent the promulgation or execution of any law or the holding of any popular election. It
may also be a conspiracy to prevent national and local public officials from freely exercising their duties and functions,
or to prevent the execution of an administrative order.
Article 142
INCITING TO SEDITION

ELEMENTS:
a. That the offender does not take a direct part in the crime of sedition
b.

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

c.

That the inciting is done by means of speeches, proclamations, writing, emblems, cartoons, banners,
or other representations tending to the same end (purpose: cause commotion not exactly against the
government; actual disturbance not necessary)
Different acts of inciting to sedition:
a. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches,
proclamations, writings, emblems etc.
b.

Uttering seditious words or speeches which tend to disturb the public peace or writing, publishing, or
circulating scurrilous [vulgar, mean, libelous] libels against the government or any of the duly constituted
authorities thereof, which tend to disturb the public peace

c.

Knowingly concealing such evil practices

When punishable:
a. when they tend to disturb or obstruct any lawful officer in executing the functions of his office; or
b.

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

c.

when they suggest or incite rebellious conspiracies or riots; or

d.

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

Only non-participant in sedition may be liable.


Inciting to sedition is an element of sedition. It cannot be treated as a separate offense against one who is a part of a
group that rose up publicly and tumultuously and fought the forces of government.
Considering that the objective of sedition is to express protest against the government and in the process creating hate
against public officers, any act that will generate hatred against the government or a public officer concerned or a
social class may amount to Inciting to sedition. Article 142 is, therefore, quite broad.
The mere meeting for the purpose of discussing hatred against the government is inciting to sedition. Lambasting
government officials to discredit the government is Inciting to sedition. But if the objective of such preparatory
actions is the overthrow of the government, the crime is inciting to rebellion.
CRIMES AGAINST POPULAR REPRESENTATION
Article 143
ACTS TENDING TO PREVENT THE MEETING OF CONGRESS AND SIMILAR BODIES

ELEMENTS:
a. That there be a projected or actual meeting of Congress or any of its committees or subcommittees,
constitutional commissions or committees or division thereof, or of any provincial board or city or
municipal council or board
b.

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

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

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

Article 144
DISTURBANCE OF PROCEEDINGS

25
Elements and Notes in Criminal Law Book II by RENE CALLANTA

ELEMENTS:
a. That there be a meeting of Congress or any of its committees, constitutional commissions or
committees or divisions thereof, or of any provincial board or city or municipal council or board
b.

That the offender does any of the following acts


1.

He disturbs any of such meetings

2.

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

The disturbance can be in the form of utterances, speeches or any form of expressing dissent which is not done
peacefully but implemented in such a way that it substantially interrupts the meeting of the assembly or adversely
affects the respect due to the assembly of its members.

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

Article 145
VIOLATION OF PARLIAMENTARY IMMUNITY

Acts punishable:
a. By using force, intimidation, threats, or frauds to prevent any member of Congress from

b.

1.

attending the meeting of the assembly or any of its committees, constitutional commissions or
committees or divisions thereof, or from

2.

expressing his opinions or

3.

casting his vote

By arresting or searching any member thereof while Congress is in a regular or special session, except
in case such member has committed a crime punishable under the code by a penalty higher than prision
mayor ( 6 years up )
Elements:
1. That the offender is a public officer or employee
2.

That he arrests or searches any member of Congress

3.

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

4.

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

Under Section 11, Article VI of the Constitution, a public officer who arrests a member of Congress who has committed
a crime punishable by prision mayor (six years and one day, to 12 years) is not liable Article 145.
According to Reyes, to be consistent with the Constitution, the phrase "by a penalty higher than prision mayor" in
Article 145 should be amended to read: "by the penalty of prision mayor or higher."
The offender is any person and the offended party who is a member of Congress, has not committed any crime to
justify the use of force, threat, intimidation or fraud to prevent him from attending the meeting of Congress.

ILLEGAL ASSEMBLIES AND ASSOCIATIONS


Article 146
ILLEGAL ASSEMBLIES

Two (2) Types of illegal assemblies:


a. Meeting of the first form
1.

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

2.

purpose : to commit any of crimes punishable under the code

3.

meeting attended by armed persons

b. Meeting of the second form


1.

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

2.

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

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

Persons liable for illegal assembly

26
Elements and Notes in Criminal Law Book II by RENE CALLANTA

a.

the organizers or leaders of the meeting

b.

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

Responsibility of persons merely present at the meeting

a.

if they are not armed, penalty is arresto mayor

b.

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

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


a.

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

b.

considered as leader or organizer of the meeting

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

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

Two forms of illegal assembly


(1)

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

(2)

Armed men attending the gathering If the illegal purpose is other than those mentioned above, the
presence of armed men during the gathering brings about the crime of illegal assembly.
Example: Persons conspiring to rob a bank were arrested. Some were with firearms. Liable for illegal
assembly, not for conspiracy, but for gathering with armed men.

Distinction between illegal assembly and illegal association


In illegal assembly, the basis of liability is the gathering for an illegal purpose which constitutes a crime under the
Revised Penal Code.
In illegal association, the basis is the formation of or organization of an association to engage in an unlawful purpose
which is not limited to a violation of the Revised Penal Code. It includes a violation of a special law or those against
public morals. Meaning of public morals: inimical to public welfare; it has nothing to do with decency., not acts of
obscenity.
Article 147
ILLEGAL ASSOCIATIONS

ELEMENTS:
a. Organized totally or partially for the purpose of committing any of the crimes in RPC
Or
b. For some purpose contrary to public morals

Persons liable:
a. founders, directors and president of the association
b. mere members of the association
Illegal Assembly (146)
Must be an actual meeting of armed persons to commit any
of the crimes punishable under the RPC, or of individuals
who, although not armed, are incited to the commission of
treason, rebellion, sedition or assault upon a person in
authority of his agent.
It is the meeting and the attendance at such that are
punished
Persons liable: leaders and those present

Illegal Association (147)


No need for such

Act of forming or organizing and membership in the


association
Founders, directors, president and members

Public morals refers to crimes punished under Title Six of the Revised Penal Code, namely, gambling, grave scandal,
prostitution and vagrancy.
ASSAULT, RESISTANCE AND DISOBEDIENCE
Article 148
DIRECT ASSAULT

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

ELEMENTS OF THE 1ST FORM OF DIRECT ASSAULT


a. That the offender employs force or intimidation.
b.

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

c.

That there is no public uprising.

Example of the first form of direct assault:


Three men broke into a National Food Authority warehouse and lamented sufferings of the people. They called on
people to help themselves to all the rice. They did not even help themselves to a single grain.
The crime committed was direct assault. There was no robbery for there was no intent to gain. The crime is direct
assault by committing acts of sedition under Article 139 (5), that is, spoiling of the property, for any political or social
end, of any person municipality or province or the national government of all or any its property, but there is no
public uprising.

ELEMENTS OF THE 2ND FORM OF DIRECT ASSAULT:


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

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

c.

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

d.

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

e.

That there is no public uprising.

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

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

The crime is not based on the material consequence of the unlawful act. The crime of direct assault punishes the
spirit of lawlessness and the contempt or hatred for the authority or the rule of law.
To be specific, if a judge was killed while he was holding a session, the killing is not the direct assault, but murder.
There could be direct assault if the offender killed the judge simply because the judge is so strict in the fulfillment
of his duty. It is the spirit of hate which is the essence of direct assault.
So, where the spirit is present, it is always complexed with the material consequence of the unlawful act. If the
unlawful act was murder or homicide committed under circumstance of lawlessness or contempt of authority, the
crime would be direct assault with murder or homicide, as the case may be. In the example of the judge who was
killed, the crime is direct assault with murder or homicide.
The only time when it is not complexed is when material consequence is a light felony, that is, slight physical injury.
Direct assault absorbs the lighter felony; the crime of direct assault can not be separated from the material result of
the act. So, if an offender who is charged with direct assault and in another court for the slight physical Injury which
is part of the act, acquittal or conviction in one is a bar to the prosecution in the other.

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

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

The intimidation or resistance must be serious whether the offended party is an agent only or a person in
authority (ex. Pointing a gun)

Person in Authority
Agent

Force Employed
Need not be serious
Must be of serious character

Intimidation/Resistance
Serious
Serious

Person in authority: any person directly vested with jurisdiction (power or authority to govern and execute the
laws) whether as an individual or as a member of some court or governmental corporation, board or commission

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


Division and a teacher

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

Agent: is one who, by direct provision of law or by election or by appointment by competent authority, is charged
with the maintenance of public order and the protection and security of life and property. ( Example. Barrio

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
councilman and any person who comes to the aid of the person in authority, policeman, municipal treasurer,
postmaster, sheriff, agents of the BIR, Malacaang confidential agent)

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

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

The offended party in assault must not be the aggressor. If there is unlawful aggression employed by the public officer,
any form of resistance which may be in the nature of force against him will be considered as an act of legitimate
defense. (People vs. Hernandez, 59 Phil. 343)

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

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

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

In direct assault of the first form, the stature of the offended person is immaterial. The crime is manifested by the
spirit of lawlessness.
In the second form, you have to distinguish a situation where a person in authority or his agent was attacked while
performing official functions, from a situation when he is not performing such functions.

If attack was done during the exercise of official functions, the crime is always direct assault. It is enough that
the offender knew that the person in authority was performing an official function whatever may be the reason
for the attack, although what may have happened was a purely private affair.
On the other hand, if the person in authority or the agent was killed when no longer performing official functions,
the crime may simply be the material consequence of he unlawful act: murder or homicide. For the crime to be
direct assault, the attack must be by reason of his official function in the past. Motive becomes important in this
respect. Example, if a judge was killed while resisting the taking of his watch, there is no direct assault.
In the second form of direct assault, it is also important that the offended knew that the person he is attacking is a
person in authority or an agent of a person in authority, performing his official functions. No knowledge, no
lawlessness or contempt.
For example, if two persons were quarreling and a policeman in civilian clothes comes and stops them, but one of the
protagonists stabs the policeman, there would be no direct assault unless the offender knew that he is a policeman.
In this respect it is enough that the offender should know that the offended party was exercising some form of
authority. It is not necessary that the offender knows what is meant by person in authority or an agent of one
because ignorantia legis non excusat.

Circumstances qualifying the offense (Qualified Assault):


a. when the assault is committed with a weapon
b.

when the offender is a public officer or employee

c.

when the offender lays hand upon a person in authority

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

If the crime of direct assault is committed with the use of force and it resulted in the infliction of slight physical
injuries, the latter shall not be considered as a separate offense. It shall be absorbed by the greater crime of direct
assault. (People vs. Acierto, 57 Phil. 614)

Direct assault cannot be committed during rebellion.

May direct assault be committed upon a private individual? Yes. When a private person comes to the aid of a
person in authority, and he is likewise assaulted. Under Republic Act No. 1978,

a private person who comes to the aid of a person in authority is by fiction of law deemed or is considered an
agent of a person in authority.
Article 149
INDIRECT ASSAULT

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

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

c.

That the offender makes use of force or intimidation upon such person coming to the aid of the
authority or his agent.

Indirect assault can be committed only when a direct assault is also committed

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

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

The victim in indirect assault should be a private person who comes in aid of an agent of a person in authority. The
assault is upon a person who comes in aid of the agent of a person in authority. The victim cannot be the person in
authority or his agent.
Take note that under Article 152, as amended, when any person comes in aid of a person in authority, said person at
that moment is no longer a civilian he is constituted as an agent of the person in authority. If such person were the
one attacked, the crime would be direct assault
Article 150
DISOBEDIENCE TO SUMMONS

a.

Acts punishable:
refusing without legal excuse to obey summons

b.

refusing to be sworn or placed under affirmation

c.

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

d.

restraining another from attending as witness in such body

e.

inducing disobedience to a summons or refusal to be sworn

The act punished is refusal, without legal excuse, to obey summons issued by the House of Representatives or the
Senate. If a Constitutional Commission is created, it shall enjoy the same privilege.
The exercise by the legislature of its contempt power is a matter of self-preservation, independent of the judicial
branch. The contempt power of the legislature is inherent and sui generis.
The power to punish is not extended to the local executive bodies. The reason given is that local legislative bodies are
but a creation of law and therefore, for them to exercise the power of contempt, there must be an express grant of
the same.
Article 151
RESISTANCE/DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENT OF SUCH PERSON (par. 1)

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

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

c.

That the act of the offender is not included in the provisions of arts. 148, 149 and 150.

SIMPLE DISOBEDIENCE (par. 2)

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

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

c.

That such disobedience is not of a serious nature.

US vs. Ramayrat, 22 Phil. 183


The Supreme Court held that: the

violation does not refer to resistance or disobedience to the legal provisions of the law, nor to judicial decisions
defining or declaring the rights and obligations of the parties for the same give reliefs only in the form of civil
actions. Rather, the disobedience or resistance is to the orders directly issued by the authorities in the exercise
of their official duties.
Direct Assault (148)
PIA or his agent must be engaged in the performance
of official duties or that he is assaulted
Direct assault is committed in 4 ways by attacking,
employing force, and seriously resisting a PIA or his
agent.
Use of force against an agent of PIA must be serious
and deliberate.

Resistant and Disobedience to a Person in Authority or


Agents of such Person (151)
PIA or his agent must be in the actual performance of his
duties.
Committed by resisting or seriously disobeying a PIA or his
agent.
Use of force against an agent of a PIA is not so serious; no
manifest intention to defy the law and the officers
enforcing it.

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
The attack or employment of force which gives rise to the crime of direct assault must be serious and deliberate;
otherwise, even a case of simple resistance to an arrest, which always requires the use of force of some kind, would
constitute direct assault and the lesser offense of resistance or disobedience in Article 151 would entirely disappear.
But when the one resisted is a person in authority, the use of any kind or degree of force will give rise to direct
assault.
If no force is employed by the offender in resisting or disobeying a person in authority, the crime committed is
resistance or serious disobedience under the first paragraph of Article 151.
Article 152
PERSONS IN AUTHORITY/AGENTS OF PERSONS IN AUTHORITY:

Persons in Authority any person directly vested with jurisdiction, whether as an individual or as a member of
some court or governmental corporation, board or commission.

Examples of Persons in Authority :


a. Barangay captain
b. Barangay chairman
c. Municipal mayor
d. Provincial fiscal
e. Justice of the peace
f.
Municipal councilor
g. Teachers
h. Professors
i.
Persons charged with the supervision of public or duly recognized private schools, colleges and universities
j.
Lawyers in the actual performance of their professional duties or on the occasion of such performance

Agent of Person in Authority any person who, by direct provision of law or by election or by appointment by
competent authority, is charged with the maintenance of public order and the protection and security of life and
property.

Examples of agents of PIA :


a. Barrio councilman
b. Barrio policeman
c. Barangay leader
d. Any person who comes to the aid of persons in authority

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

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

Article 153
TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER

TYPES:
a. Causing any serious disturbance in a public place, office or establishment
b.

Interrupting or disturbing public performances, functions, gatherings or peaceful meetings, if the act is
not included in Art 131 and 132 (Public Officers interrupting peaceful meetings or religious worship).

c.

Making any outcry tending to incite rebellion or sedition in any meeting, association or public place

d.

Displaying placards or emblems which provoke a disturbance of public order in such place

e.

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

If the act of disturbing or interrupting a meeting or religious ceremony is NOT committed by public officers, or if
committed by public officers who are not participants therein, this article applies. Art 131 and 132 punishes the
same acts if committed by public officers who are NOT participants in the meeting

The outcry is merely a public disorder if it is an unconscious outburst which, although rebellious or seditious in
nature, is not intentionally calculated to induce others to commit rebellion or sedition, otherwise, its inciting to
rebellion or sedition.

This article should be distinguished from inciting to rebellion or sedition as discussed under Article 138 and 142. In
the former, the meeting is legal and peaceful. It becomes unlawful only because of the outcry made, which tends
to incite rebellion or sedition in the meeting. In the latter case, the meeting is unlawful from the beginning and
the utterances made are deliberately articulated to incite others to rise publicly and rebel against the

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
government. What makes it inciting to rebellion or sedition is the act of inciting the audience to commit rebellion
or sedition.

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

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

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

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

If the speaker, even before he delivered his speech, already had the criminal intent to incite the listeners to rise
to sedition, the crime would be inciting to sedition. However, if the offender had no such criminal intent, but in
the course of his speech, tempers went high and so the speaker started inciting the audience to rise in sedition
against the government, the crime is disturbance of the public order.
The disturbance of the pubic order is tumultuous and the penalty is increased if it is brought about by armed men.
The term armed does not refer to firearms but includes even big stones capable of causing grave injury.

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

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

Article 154
UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES

TYPES:
a.
Publishing or causing to be published, by means of printing, lithography or any other means of
publication as news any false news which may endanger the public order, or cause damage to the
interest or credit of the State.
b.

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


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

c.

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


proper authority, or before they have been published officially

d.

Printing, publishing or distributing or (causing the same) books, pamphlets, periodicals or leaflets
which do not bear the real printers name or which are classified as anonymous.

The purpose of the law is to punish the spreading of false information which tends to cause panic, confusion, distrust
and divide people in their loyalty to the duly constituted authorities.
Actual public disorder or actual damage to the credit of the State is not necessary.
Republic Act No. 248 prohibits the reprinting, reproduction or republication of government publications and official
documents without previous authority
The article also punishes any person who knowingly publishes official acts or documents which are not officially
promulgated.
Article 155
ALARMS AND SCANDALS

TYPES:
a. Discharging any firearm, rocket, firecracker, or other explosive within any town or public place,
calculated to cause alarm or danger
b.

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

c.

Disturbing the public peace while wandering about at night or while engaged in any other nocturnal
amusement

d.

Causing any disturbance or scandal in public places while intoxicated or otherwise, provided the act is
not covered by Art 153 (tumult).

Understand the nature of the crime of alarms and scandals as one that disturbs public tranquility or public peace.
If the annoyance is intended for a particular person, the crime is unjust vexation.

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
When a person discharges a firearm in public, the act may constitute any of the possible crimes under the Revised
Penal Code:
(1)

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

(2)

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

(3)

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

In this connection, understand that it is not necessary that the offended party be wounded or hit. Mere discharge of
firearm towards another with intent to kill already amounts to attempted homicide or attempted murder or
attempted parricide. It can not be frustrated because the offended party is not mortally wounded.
In Araneta v. Court of Appeals, it was held that if a person is shot at and is wounded, the crime is automatically
attempted homicide. Intent to kill is inherent in the use of the deadly weapon.
(4)
(5)

Grave Threats If the weapon is not discharged but merely pointed to another
Other Light Threats If drawn in a quarrel but not in self defense
What governs is the result, not the intent

CRIME
Tumults and other Disturbances (153)
Alarms and Scandals (155)

Nature of Crime
Crime against Public Order
Crime against Public Order

Who are Liable


Private persons, outsider
Private persons, outsider

Article 156
DELIVERING PRISONERS FROM JAILS

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

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

c.

Offender is a private individual

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

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

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

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

It may be committed through negligence

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

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

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

Do not think that infidelity in the custody of prisoners can only be committed by a public officer and delivering
persons from jail can only be committed by private person. Both crimes may be committed by public officers as
well as private persons.
In both crimes, the person involved may be a convict or a mere detention prisoner.
The only point of distinction between the two crimes lies on whether the offender is the custodian of the prisoner or
not at the time the prisoner was made to escape.

If the offender is the custodian at that time, the crime is infidelity in the custody of prisoners. But if the
offender is not the custodian of the prisoner at that time, even though he is a public officer, the crime he
committed is delivering prisoners from jail.
Liability of the prisoner or detainee who escaped When these crimes are committed, whether infidelity in the
custody of prisoners or delivering prisoners from jail, the prisoner so escaping may also have criminal liability and this
is so if the prisoner is a convict serving sentence by final judgment. The crime of evasion of service of sentence is
committed by the prisoner who escapes if such prisoner is a convict serving sentence by final judgment.
If the prisoner who escapes is only a detention prisoner, he does not incur liability from escaping if he does not know
of the plan to remove him from jail. But if such prisoner knows of the plot to remove him from jail and cooperates
therein by escaping, he himself becomes liable for delivering prisoners from jail as a principal by indispensable
cooperation.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
If three persons are involved a stranger, the custodian and the prisoner three crimes are committed:
(1)

Infidelity in the custody of prisoners;

(2)

Delivery of the prisoner from jail; and

(3)

Evasion of service of sentence.

It is possible that several crimes may be committed in one set of facts. For instance, assuming that Pedro, the jail
warden, agreed with Juan to allow Maria to escape by not locking the gate of the city jail. Provided that Juan comes
across with P5,000.00 pesos as bribe money. The arrangement was not known to Maria but when she noticed the
unlocked gate of the city jail she took advantage of the situation and escaped. From the facts given, there is no
question that Pedro, as the jail warden, is liable for the crime of infidelity in the custody of the prisoner. He will also
be able for the crime of bribery. Juan will be liable for the crime of delivering a prisoner from jail and for corruption of
public official under Art. 212. If Maria is a sentenced prisoner, she will be liable for evasion of service of sentence
under Article 157. if she is a detention prisoner, she commits no crime.
EVASION OF SENTENCE OR SERVICE
Evasion of service of sentence has three forms:
(1)

By simply leaving or escaping from the penal establishment under Article 157;

(2)

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

(3)

Violating the condition of conditional pardon under Article 159.

Article 157
EVASION OF SERVICE OF SENTENCE

ELEMENTS :
a. That the offender is a convict by final judgment.
b.

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

c.

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

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

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

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

A continuing offense.

Offenders not minor delinquents nor detention prisoners

If escaped within the 15 day appeal period no evasion

No applicable to deportation as the sentence

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

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

Circumstances qualifying the offense (done thru):


a. unlawful entry (by scaling)
b.

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

c.

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

d.

connivance with other convicts or employees of the penal institution

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Article 158
EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES OR OTHER
CALAMITIES

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

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


2. earthquake, or
3. explosion, or
4. similar catastrophe, or
5. mutiny , not
participated.

c.

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

d.

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

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

Offender must escape to be entitled to allowance

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

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

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

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

Disarming the guards is not mutiny

Violation attributed to the accused is no longer referred to the court for judicial inquiry or resolution. The law has
provided sufficient guidelines for the jail warden to follow.
This disquisition will not apply if the offender who escapes taking advantage of the calamities enumerated herein is
apprehended by the authorities after 48 hours from the declaration that the calamity is over. It is only extended to one
who returns but made inside the 48 hours delimited by the proclamation. At this stage, the violation is not substantive
but administrative in nature.

Article 159
VIOLATION OF CONDITIONAL PARDON

ELEMENTS:
a. That the offender was a convict.
b.

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

c.

That he violated any of the conditions of such pardon.

Condition extends to special laws violation of illegal voting


The condition imposed upon the prisoner not to be guilty of another crime is not limited to those punishable under the
Revised Penal Code. It includes those punished under Special Law. (People vs. Corral, 74 Phil. 357).
In violation of conditional pardon, as a rule, the violation will amount to this crime only if the condition is violated
during the remaining period of the sentence.
If the condition of the pardon is violated, the remedy against the accused may be in the form of prosecution under
Article 159. it may also be an administrative action by referring the violation to the court of origin and praying for the
issuance of a warrant of arrest justified under Section 64 of the Revised Administrative Code.

The administrative liability of the convict under the conditional pardon is different and has nothing to do with his
criminal liability for the evasion of service of sentence in the event that the condition of the pardon has been
violated. Exception: where the violation of the condition of the pardon will constitute evasion of service of
sentence, even though committed beyond the remaining period of the sentence. This is when the conditional

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

pardon expressly so provides or the language of the conditional pardon clearly shows the intention to make the
condition perpetual even beyond the unserved portion of the sentence. In such case, the convict may be required
to serve the unserved portion of the sentence even though the violation has taken place when the sentence has
already lapsed.
Offender must have been found guilty of the subsequent offense before he can be prosecuted under this Article.
But if under Revised Admin Code, no conviction necessary. President has power to arrest, reincarnate offender
without trial

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

ORDINARY EVASION
To evade the penalty given by the courts disturbs the
public order

Two penalties provided:


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

the unexpired portion of his original sentence if the penalty remitted is higher than 6 years
COMMISSION OF ANOTHER CRIME

Article 160
COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSEPENALTY: (quasi-recidivism)

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

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

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

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

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

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

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

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

Quasi-recidivism is a special aggravating circumstance which directs the court to impose the maximum period of the
penalty prescribed by law for the new felony. The court will do away or will ignore mitigating and aggravating
circumstances in considering the penalty to be imposed. There will be no occasion for the court to consider imposing
the minimum, medium or maximum period of the penalty. The mandate is absolute and is justified by the finding that
the accused is suffering from some degree of moral perversity if not total incorrigibility. (People vs. Alicia, et al., 95
SCRA 227)
Quasi-recidivism is an aggravating circumstance which cannot be offset by any mitigating circumstance . To be
appreciated as a special aggravating circumstance, it must be alleged in the information. (People vs. Bautista, 65
SCRA 460)

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


TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST

Crimes against public interest


1.

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

2.

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

3.

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

4.

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

5.

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

6.

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

7.

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

8.

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

9.

Falsification of legislative documents (Art. 170);

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
10.

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

11.

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

12.

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

13.

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

14.

Using false certificates (Art. 175);

15.

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

16.

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

17.

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

18.

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

19.

False testimony against a defendant (Art. 180);

20.

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

21.

False testimony in civil cases (Art. 182);

22.

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

23.

Offering false testimony in evidence (Art. 184);

24.

Machinations in public auction (Art. 185);

25.

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

26.

Importation and disposition of falsely marked articles or merchandise made of gold, silver, or other precious
metals or their alloys (Art. 187);

27.

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

28.

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

The crimes in this title are in the nature of fraud or falsity to the public. The essence of the crime under this title is
that which defraud the public in general. There is deceit perpetrated upon the public. This is the act that is being
punished under this title.
Article 161
COUNTERFEITING GREAT SEAL OF GOVERNMENT

TYPES:
a.

Forging the great seal of the Government

b.

Forging the signature of the President

c.

Forging the stamp of the President

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

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

Article 162
USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP
ELEMENTS:
a.

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

b.

That the offender knew of the counterfeiting or forgery.

c.

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

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

Article 163
MAKING AND IMPORTING AND UTTERING FALSE COINS

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

b.

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

c.

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

Coin is counterfeit if it is forged, or if it is not an article of the government as legal tender, regardless if it is of
no value

Kinds of coins the counterfeiting of which is punished


1.

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

2.

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

3.

Coin of the currency of a foreign country.

Counterfeiting imitation of legal or genuine coin (may contain more silver, different design) such as to deceive
an ordinary person in believing it to be genuine

Utter to pass counterfeited coins, deliver or give away

Import to bring to port the same

Both Philippine and foreign state coins

Applies also to coins withdrawn from circulation

Essence of article: making of coins without authority

Acts punished
1.

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

2.

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

The first acts of falsification or falsity are


(1)

Counterfeiting refers to money or currency;

(2)

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

(3)

Falsification can only be committed in respect of documents.

In so far as coins in circulation are concerned, there are two crimes that may be committed:
(1)

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

In the crime of counterfeiting, the law is not concerned with the fraud upon the public such that even though the coin
is no longer legal tender, the act of imitating or manufacturing the coin of the government is penalized. In punishing
the crime of counterfeiting, the law wants to prevent people from trying their ingenuity in their imitation of the
manufacture of money.
(2)

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

Requisites of mutilation under the Revised Penal Code


(1)

Coin mutilated is of legal tender;

(2)

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

(3)

It has to be a coin.

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

Mutilation of coins is a crime only if the coin mutilated is legal tender. If it is not legal tender anymore, no one will
accept it, so nobody will be defrauded. But if the coin is of legal tender, and the offender minimizes or decreases the
precious metal dust content of the coin, the crime of mutilation is committed.
The offender must deliberately reduce the precious metal in the coin. Deliberate intent arises only when the offender
collects the precious metal dust from the mutilated coin. If the offender does not collect such dust, intent to
mutilate is absent, but Presidential Decree No. 247 will apply.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Article 164

MULTILATION OF COINS IMPORTATION AND UTTERANCE:


This has been repealed by PD 247. (Defacement, Mutilation, Tearing, Burning or Destroying Central Bank Notes
and Coins)
Under this PD, the acts punishable are:
a.
b.
c.
d.
e.

willful defacement
mutilation
tearing
burning
destruction of Central Bank notes and coins

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

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

Must be intention to mutilate.

Mutilation under the Revised Penal Code is true only to coins. It cannot be a crime under the Revised Penal Code to
mutilate paper bills because the idea of mutilation under the code is collecting the precious metal dust. However,
under Presidential Decree No. 247, mutilation is not limited to coins.
Questions & Answers
1.
The people playing cara y cruz, before they throw the coin in the air would rub the money to the
sidewalk thereby diminishing the intrinsic value of the coin. Is the crime of mutilation committed?
Mutilation, under the Revised Penal Code, is not committed because they do not collect the precious metal
content that is being scraped from the coin. However, this will amount to violation of Presidential Decree No. 247.
2.
When the image of Jose Rizal on a five-peso bill is transformed into that of Randy Santiago, is there
a violation of Presidential Decree No. 247?
Yes. Presidential Decree No. 247 is violated by such act.
4.
An old woman who was a cigarette vendor in Quiapo refused to accept one-centavo coins for
payment of the vendee of cigarettes he purchased. Then came the police who advised her that she has no right to
refuse since the coins are of legal tender. On this, the old woman accepted in her hands the one-centavo coins and
then threw it to the face of the vendee and the police. Was the old woman guilty of violating Presidential Decree No.
247?
She was guilty of violating Presidential Decree No. 247 because if no one ever picks up the coins, her act
would result in the diminution of the coin in circulation.
5.
A certain customer in a restaurant wanted to show off and used a P 20.00 bill to light his cigarette.
Was he guilty of violating Presidential Decree No. 247?
He was guilty of arrested for violating of Presidential Decree No. 247. Anyone who is in possession of
defaced money is the one who is the violator of Presidential Decree No. 247. The intention of Presidential Decree No.
247 is not to punish the act of defrauding the public but what is being punished is the act of destruction of money
issued by the Central Bank of the Philippines.
Note that persons making bracelets out of some coins violate Presidential Decree No. 247.
The primary purpose of Presidential Decree No. 247 at the time it was ordained was to stop the practice of people
writing at the back or on the edges of the paper bills, such as "wanted: pen pal".
So, if the act of mutilating coins does not involve gathering dust like playing cara y cruz, that is not mutilation under
the Revised Penal Code because the offender does not collect the metal dust. But by rubbing the coins on the
sidewalk, he also defaces and destroys the coin and that is punishable under Presidential Decree No. 247.
Article 165
SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE

2 Types
a. Possession of coin, counterfeited or mutilated by another person, with intent to utter the same,
knowing that it is false or mutilated.
ELEMENTS:
1. possession

b.

2.

with intent to utter, and

3.

knowledge

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
1.

actually uttering, and

2.

knowledge.

Possession does not require legal tender in foreign coins

Includes constructive possession

On counterfeiting coins, it is immaterial whether the coin is legal tender or not because the intention of the law is to
put an end to the practice of imitating money and to discourage anyone who might entertain the idea of imitating
money (People vs. Kong Leon).
Article 166
FORGING TREASURY OR BANK NOTES IMPORTING AND UTTERING

Acts punishable:
a. Forging or falsity of treasury/bank notes or documents payable to bearer
b.

Importing of such notes

c.

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

Forging by giving a treasury or bank note or document payable to bearer/order an appearance of a true and
genuine document

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

E.g. falsifying lotto or sweepstakes ticket. Attempted estafa through falsification of an obligation or security of
the Phil

PNB checks not included here its falsification of commercial document under Article 172

Obligation or security includes: bonds, certificate of indebtedness, bills, national bank notes, coupons, treasury
notes, certificate of deposits, checks, drafts for money, sweepstakes money

If the falsification is done on a document that is classified as a government security, then the crime is punished under
Article 166. On the other hand, if it is not a government security, then the offender may either have violated Article
171 or 172.

Article 167
COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER

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

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

c.

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

Article 168
ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENT OF CREDIT

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

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

c.

That he performs any of these acts


1. using any of such forged or falsified instrument, or
2. possessing with intent to use any of such forged or falsified instrument.

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

Article 169
FORGERY

How forgery is committed:


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

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

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Forgery under the Revised Penal Code applies to papers, which are in the form of obligations and securities issued by
the Philippine government as its own obligations, which is given the same status as legal tender. Generally, the word
counterfeiting is not used when it comes to notes; what is used is forgery. Counterfeiting refers to money,
whether coins or bills.
Notice that mere change on a document does not amount to this crime. The essence of forgery is giving a document
the appearance of a true and genuine document. Not any alteration of a letter, number, figure or design would
amount to forgery. At most, it would only be frustrated forgery.
When what is being counterfeited is obligation or securities, which under the Revised Penal Code is given a status of
money or legal tender, the crime committed is forgery.
Questions & Answers
1.
committed?

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

No. Forgery was not committed. The forged instrument and currency note must be given the appearance of
a true and genuine document. The crime committed is a violation of Presidential Decree No. 247. Where the
currency note, obligation or security has been changed to make it appear as one which it purports to be as genuine,
the crime is forgery. In checks or commercial documents, this crime is committed when the figures or words are
changed which materially alters the document.
2.
An old man, in his desire to earn something, scraped a digit in a losing sweepstakes ticket, cut out
a digit from another ticket and pasted it there to match the series of digits corresponding to the winning sweepstakes
ticket. He presented this ticket to the Philippine Charity Sweepstakes Office. But the alteration is so crude that even
a child can notice that the supposed digit is merely superimposed on the digit that was scraped. Was the old man
guilty of forgery?
NO Because of the impossibility of deceiving whoever would be the person to whom that ticket is presented,
the Supreme Court ruled that what was committed was an impossible crime. Note, however, that the decision has
been criticized. In a case like this, the Supreme Court of Spain ruled that the crime is frustrated. Where the
alteration is such that nobody would be deceived, one could easily see that it is a forgery, the crime is frustrated
because he has done all the acts of execution which would bring about the felonious consequence but nevertheless did
not result in a consummation for reasons independent of his will.
3.
A person has a twenty-peso bill. He applied toothache drops on one side of the bill. He has a
mimeograph paper similar in texture to that of the currency note and placed it on top of the twenty-peso bill and put
some weight on top of the paper. After sometime, he removed it and the printing on the twenty-peso bill was
reproduced on the mimeo paper. He took the reverse side of the P20 bill, applied toothache drops and reversed the
mimeo paper and pressed it to the paper. After sometime, he removed it and it was reproduced. He cut it out,
scraped it a little and went to a sari-sari store trying to buy a cigarette with that bill. What he overlooked was that,
when he placed the bill, the printing was inverted. He was apprehended and was prosecuted and convicted of forgery.
Was the crime of forgery committed?
The Supreme Court ruled that it was only frustrated forgery because although the offender has performed
all the acts of execution, it is not possible because by simply looking at the forged document, it could be seen that it
is not genuine. It can only be a consummated forgery if the document which purports to be genuine is given the
appearance of a true and genuine document. Otherwise, it is at most frustrated.
Five classes of falsification:
(1)

Falsification of legislative documents;

(2)

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

(3)

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

(4)

Falsification of a private document by any person;

(5)

Falsification of wireless, telegraph and telephone messages.

The crime of falsification must involve a writing that is a document in the legal sense. The writing must be complete
in itself and capable of extinguishing an obligation or creating rights or capable of becoming evidence of the facts
stated therein. Until and unless the writing has attained this quality, it will not be considered as document in the legal
sense and, therefore, the crime of falsification cannot be committed in respect thereto.
Distinction between falsification and forgery:
Falsification is the commission of any of the eight acts mentioned in Article 171 on legislative (only the act of making
alteration), public or official, commercial, or private documents, or wireless, or telegraph messages.
The term forgery as used in Article 169 refers to the falsification and counterfeiting of treasury or bank notes or any
instruments payable to bearer or to order.
Note that forging and falsification are crimes under Forgeries.
Article 170
FALSIFICATION OF LEGISLATIVE DOCUMENTS

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

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

That the offender (any person) alters the same.

c.

That he has no proper authority therefor.

d.

That the alteration has changed the meaning of the document.

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

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

The falsification must be committed on a genuine, true and authentic legislative document. If committed on a
simulated, spurious or fabricated legislative document, the crime is not punished under this article but under Article
171 or 172.

Article 171
FALSIFICATION OF DOCUMENTS BY PUBLIC OFFICER, EMPLOYEE, OR NOTARY OR ECCLESTASTICAL MINISTER

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

That he takes advantage of his official position.

c.

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


1.

Counterfeiting or imitating any handwriting, signature or rubric.


Requisites:
i.
ii.

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

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

(lack of similitude/imitation of a genuine signature will not be a ground for conviction under
par. 1 but such is not an impediment to conviction under par. 2)

2.

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

3.

Attributing to persons who have participated in an act or proceeding statements other than those
in fact made by them.
Requisites:
i.
That the offender caused it to appear in a document that a person/s participated in an
act or a proceeding; and
ii.

4.

That such person/s did not in fact so participate in the act or proceeding

Making untruthful statements in a narration of facts;


Requisites:
i.

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

ii.

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

iii.

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

iv.

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

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

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

5.

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

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

Altering true dates.


date must be essential

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
For falsification to take place under this paragraph, the date of the document must be material to the right created or
to the obligation that is extinguished.
6.

7.

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

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

ii.

That it was made on a genuine document

iii.

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

iv.

That the change made the document speak something false.

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


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

The acts of falsification mentioned in this paragraph are committed by a public officer or by a notary public who takes
advantage of his official position as custodian of the document. It can also refer to a public officer or notary who
prepared and retained a copy of the document. The falsification can be done in two ways. It can be a certification
purporting to show that the document issued is a copy of the original on record when no such original exists. It can also
be in the form of a certification to the effect that the document on file contains statements or including in the copy
issued, entries which are not found on contrary to, or different from the original genuine document on file.
8.
d.

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

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

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

Alteration or changes to make the document speak the truth do not constitute falsification. (US vs. Mateo, 25 Phil.
324)

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

Either he has duty to intervene in the preparation of the document or it may be a situation wherein the public officer
has official custody of the document.

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

Document: Any written instrument which establishes a right or by which an obligation is extinguished. A deed or
agreement executed by a person setting forth any disposition or condition wherein rights and obligations may arise.
Writing may be on anything as long as it is a product of the handwriting, it is considered a document.

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

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

Counterfeiting imitating any handwriting, signature or rubric

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

It does not require that the writing be genuine. Even if the writing was through and through false, if it appears to be
genuine, the crime of falsification is nevertheless committed.
There are four kinds of documents:
(1)

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

(2)

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

(3)

Commercial document or any document recognized by the Code of Commerce or any commercial law; and

(4)

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

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Under Republic Act 7975, when a public officer who holds a position classified as Grade 27 or higher, commits a crime
in relation to the performance of his official functions, the case against him will fall under the jurisdiction of the
Sandiganbayan. If a private person is included in the accusation because of the existence of conspiracy in the
commission of the crime, the Sandiganbayan shall maintain jurisdiction over the person of the co-accused,
notwithstanding the fact that said co-accused is a private individual. If the public officer is found guilty, the same
liability and penalty shall be imposed on the private individual. (U.S. vs. Ponce, 20 Phil. 379)
Article 172
FALSIFICATION OF PUBLIC, OFFICIAL, OR COMMERCIAL DOCUMENT BY A PRIVATE INDIVIDUAL (par 1)

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

c.

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


1.

Counterfeiting or imitating any handwriting, signature or rubric.

2.

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

3.

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

4.

Making untruthful statements in a narration of facts;

5.

Altering true dates.

6.

Making any alteration or intercalation in a genuine document which changes its meaning.
That the falsification was committed in any public or official or commercial document.

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

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

Defense: lack of malice or criminal intent

The following writings are public:


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

Public records kept in the Philippines.

Examples of commercial documents warehouse receipts, airway bills, bank checks, cash files, deposit slips and
bank statements, journals, books, ledgers, drafts, letters of credit and other negotiable instruments

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

Cash disbursement vouchers or receipts evidencing payments are not commercial documents

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

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

FALSIFICATION UNDER PARAGRAPH 2 OF ART. 172. OF PRIVATE DOCUMENT

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

That the falsification was committed in any private document (must affect the truth or integrity of the
document)

c.

That the falsification caused damage (essential element; hence, no crime of estafa thru falsification of
private document) to a third party or at least the falsification was committed with intent to cause such
damage.

Not necessary that the offender profited or hoped to profit from the falsification

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Falsification of a private document is consummated when such document is actually falsified with the intent to
prejudice a third person whether such falsified document is or is not thereafter put to illegal use for which it is
intended. (Lopez vs. Paras, 36 Phil. 146)
What is emphasized at this point is the element of falsification of private document. There must be intent to cause
damage or damage is actually caused. The intention is therefore must be malicious or there is deliberate intent to
commit a wrong. Reckless imprudence is incompatible with malicious intent.

Falsification is not a continuing offense

There is no falsification through reckless imprudence if the document is a private document.

Falsification by omission

Mere falsification of a private document is not enough to commit crime under paragraph 2 of Article 172. Two acts must
be done by the offender. 1) He must have performed in the private document the falsification contemplated under
Article 171. 2) He must have performed an independent act which operates to cause damage or prejudice to a third
person. The third person mentioned herein may include the government. Damage is not limited to money or pecuniary
prejudice. Damage to ones honor, reputation or good name is included.

A document falsified as a necessary means to commit another crime must be public, official or commercial

There is no complex crime of estafa through falsification of a private document because the immediate effect of
the latter is the same as that of estafa

If a private document is falsified to cause damage to the offended party, the crime committed is falsification of a
private document. Remember that in estafa, damage or intent to cause damage is an indispensable element of the
crime. The same element is necessary to commit the crime of falsification of private document. Since they have a
common element, such element cannot be divided into the two parts and considered as two separate offenses.
There is no complex crime of estafa with falsification because deceit is a common element of both. One and the same
deceit or damage cannot give rise to more than one crime. It is either estafa or falsification.
Criteria to determine whether the crime is estafa only or falsification only :
IF the falsification of the private document was essential in the commission of estafa because the falsification, estafa
cannot be committed, the crime is falsification; estafa becomes the consequence of the crime.
IF the estafa can be committed even without resorting to falsification, the latter being resorted only to facilitate
estafa, the main crime is estafa; falsification is merely incidental, since even without falsification, estafa can be
committed.

If the estafa was already consummated at the time of the falsification of a private document was committed for
the purpose of concealing the estafa, the falsification is not punishable, because as regards the falsification of the
private document there was no damage or intent to cause damage.

A private document which is falsified to obtain money from offended party is a falsification of private document only.

A private document may acquire the character of a public document when it becomes part of an official record
and is certified by a public officer duly authorized by law

The crime is falsification of public documents even if falsification took place before the private document
becomes part of the public records

Examples:
An employee of a private company who punches the bundy clock on behalf on a co-employee is guilty of falsification of
a private document.
One who will take the civil service examination for another and makes it appear that he is the examinee is guilty of
falsification of a public document.
USE OF FALSIFIED DOCUMENT (par. 3, art. 172)

ELEMENTS:
a.

b.

Introducing in a judicial proceeding:


1. That the offender knew that a document was falsified by another person.
2.

That the false document is embraced in art. 171 or in any subdivisions nos. 1 and 2 of art. 172.

3.

That he introduced said document in evidence in any judicial proceeding. (intent to cause damage
not necessary)

Use in any other transaction:


1. That the offender knew that a document was falsified by another person.
2.

That the false document is embraced in art. 171 or in any of subdivisions nos. 1 and 2 of art. 172.

3.

That he used such documents (not in judicial proceedings).

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
4.

That the use of the documents caused damage to another or at least was used with intent to cause
such damage.

The user of the falsified document is deemed the author of falsification, if:
a. the use is so closely connected in time with the falsification
b.

the user had the capacity of falsifying the document

Falsification of Private Documents


Prejudice to third party is an element of the
offense.

Falsification of Public/Official Documents


Prejudice to third persons is immaterial, what is punished is the
violation of public faith and perversion of truth which the
document proclaims.

Rules to observe in the use of a falsified document.


1. It is a crime when knowingly introduced in a judicial proceeding even if there is not intent to cause damage to
another. Knowingly introducing a falsified document in a judicial proceeding, the use alone is not a crime. The
mere introduction of the forged document is the crime itself. But when the falsified document is knowingly
introduced in an administrative proceeding, the use alone is not a crime. There must be intent to cause damage
or damage is actually inflicted.
2. Falsification of document is a separate and distinct offense from that of the use of falsified documents. So if the
falsification of document was done or performed because it was necessary to the use of the same and in the
commission of the crime, then we may have a complex crime defined and punished under Article 48 of the Revised
Penal Code.
3. Good faith is a defense in falsification of public document.
Article 173
FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH, AND TELEPHONE MESSAGES, AND USE OF SAID FALSIFIED
MESSAGES

Acts punishable:
1. Uttering fictitious, wireless, telegraph or telephone message
Requisites:
a. That the offender is an officer or employee of the government or an officer or employee of a
private corporation, engaged in the service of sending or receiving wireless, cable or telephone
message.
b.

2.

Falsifying wireless, telegraph or telephone message


Requisites:
a. That the offender is an officer or employee of the government or an officer or employee of a
private corporation, engaged in the service of sending or receiving wireless, cable or telephone
message.
b.

3.

That the accused commits any of the following acts:


uttering fictitious wireless, cable, telegraph, or telephone message, or
falsifying wireless, cable, telegraph, or telephone message

That the accused commits any of the following acts:


uttering fictitious wireless, cable, telegraph, or telephone message, or
falsifying wireless, cable, telegraph, or telephone message

Using such falsified message


Requisites:
a. That the accused knew that wireless, cable, telegraph, or telephone message was falsified by any
of the person specified in the first paragraph of art. 173.
b.

That the accused used such falsified dispatch.

c.

That the use of the falsified dispatch resulted in the prejudice of a third party, or that the use
thereof was with intent to cause such prejudice.

The public officer, to be liable must be engaged in the service of sending or receiving wireless, cable and
telegraph or telephone message

Article 174
FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFCATES OF MERIT OR SERVICE AND THE LIKE:

Persons liable:
a. Physician or surgeon who, in connection with the practice of his profession, issued a false certificate (note:
such certificate must refer to the illness or injury of a person)
b.

Public officer who issued a false certificate of merit of service, good conduct or similar circumstances

c.

Private individual who falsified a certificate under (1) and (2)

Article 175
USING FALSE CERTIFICATES

ELEMENTS:
a. That a physician or surgeon has issued a false medical certificate, or a public officer has issued a
false certificate of merit or service, good conduct, or similar circumstances, or a private person
had falsified any of said certificates.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
b.

That the offender knew that the certificate was false.

c.

That he used the same.

Article 176
MANUFACTURING AND POSSESSION OF INTRUMENTS OR IMPLEMENTS FOR FALSIFICATION:

Acts punishable:
a. Making or introducing into the Philippines any stamps, dies or marks or other instruments or
implements for counterfeiting or falsification
b.

Possessing with intent to use the instruments or implements for counterfeiting or falsification
made in or introduced into the Philippines by another person

The implement confiscated need not form a complete set

Constructive possession is also punished


OTHER FALSITIES

Article 177
USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS:

2 ways of committing the crime:


a. By knowingly and falsely representing oneself to be an officer, agent or representative of any
department or agency of the Philippine govt or any foreign govt.
b.

By performing an act pertaining to any person in authority or public officer of the Phil govt or
foreign govt under the pretense of such official position, and without being lawfully entitled to
do so.

In usurpation of authority: The mere act of knowingly and falsely representing oneself
necessary that he performs an act pertaining to a public officer.

is sufficient. Not

Elements

1.

Offender knowingly and falsely represents himself;

2.

As an officer, agent or representative of any department or agency of the Philippine


government or of any foreign government.

In usurpation of official functions: It is essential that the offender should have performed an act pertaining to a
person in authority

Elements

1.

Offender performs any act;

2.

Pertaining to any person in authority or public officer of the Philippine government or any
foreign government, or any agency thereof;

3.

Under pretense of official position;

4.

Without being lawfully entitled to do so.

A public officer may also be an offender


The act performed without being lawfully entitled to do so must pertain:
a. to the govt
b. to any person in authority
c. to any public office

Foreign government adverted to in this article refers to public officers duly authorized to perform governmental duties
in the Philippines. The law cannot refer to other foreign governments as its application may bring us to legal problems
which may infringe on constitutional boundaries.
If the offender commits the acts of usurpation as contemplated herein, and he does it because he is a rebel and
pursuant to the crime of rebellion or insurrection or sedition, he will not be liable under this article because what is
attributed against him as a crime of usurpation is in fact one of the elements of committing rebellion.
The elements of false pretense is necessary to commit the crime of usurpation of official function.
Article 178
USING FICTITIOUS NAME AND CONCEALING TRUE NAME

ELEMENTS (using fictitious name) :


a. That the offender uses a name other than his real name.
b.

That he uses that fictitious name publicly.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
c.

That the purpose of the offender is


1. To conceal a crime,
2. To evade the execution of a judgment, or
3. To cause damage to public interest. (ex. Signing fictitious name for a passport)

The name of a person is what appears in his birth certificate. The name of a person refers to his first name, surname,
and maternal name. Any other name which a person publicly applies to himself without authority of law is a fictitious
name.

ELEMENTS (concealing true name):


a. that the offender conceals
1.

his true name, and

2.

all other personal circumstances.

b.

that the purpose is only to conceal his identity.

What the offender does to violate or commit this act is for him to conceal his true name and other personal
circumstances. His only motive in doing so is to conceal his identity. In concealment of true name, the deception is
done momentarily, just enough to conceal the name of the offender. In the use of fictitious name, the offender
presents himself before the public with another name.
A person under investigation by the police who gives a false name and false personal circumstances, upon being
interrogated, is guilty of this crime.
Use of Fictitious Name (178)
Element of publicity must be present
Purpose is to conceal a crime, to evade the execution of a
judgement, or to cause damage

Concealing True Name (178)


Publicity not necessary
Purpose is to conceal identity

Commonwealth Act No. 142 (Regulating the Use of Aliases)


No person shall use any name different from the one with which he was registered at birth in the office of the local
civil registry, or with which he was registered in the bureau of immigration upon entry; or such substitute name as may
have been authorized by a competent court.
Exception: Pseudonym solely for literary, cinema, television, radio, or other entertainment and in athletic events
where the use of pseudonym is a normally accepted practice.
Article 179
ILLEGAL USE OF UNIFORM OR INSIGNIA

ELEMENTS:
a. That the offender makes use of insignia, uniform or dress.
b.

That the insignia, uniform or dress pertains to an office not held by the offender or to a class of
persons of which he is not a member.

c.

That said insignia, uniform or dress is used publicly and improperly.

The wearing of a uniform, or insignia of a non-existing office or establishment is not a crime. It is necessary that the
uniform or insignia represents an office which carries authority, respect, dignity, or influence which the public looks up
to.
So also, an exact imitation of a uniform or dress is unnecessary; a colorable resemblance calculated to deceive the
common run of people is sufficient.
The wearing of insignia, badge or emblem of rank of the members of the armed forced of the Philippines or
constabulary (now PNP) is punished by Republic Act No. 493.
When the uniform or insignia is used to emphasize the pageantry of a play or drama or in moving picture films, the
crime is not committed.
Three forms of false testimony
1.
2.
3.

False testimony in criminal cases under Article 180 and 181;


False testimony in civil case under Article 182;
False testimony in other cases under Article 183.

False testimony, defined


It is the declaration under oath of a witness in a judicial proceeding which is contrary to what is true, or to
deny the same, or to alter essentially the truth.
Nature of the crime of false testimony.
1. It cannot be committed through reckless imprudence because false testimony requires criminal intent or intent to
violate the law is an essential element of the crime.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
2. If the false testimony is due to honest mistake or error or there was good faith in making the false testimony, no
crime is committed.
Article 180
FALSE TESTIMONY AGAINST A DEFENDANT

ELEMENTS:
a.
That there be a criminal proceeding.
b.

That the offender testifies falsely under oath against the defendant therein.

c.

That the offender who gives false testimony knows that it is false.

d.

That the defendant against whom the false testimony is given is either acquitted or convicted in a
final judgment (prescriptive period starts at this point)
Requires criminal intent, cant be committed through negligence. Need not impute guilt upon the accused

The defendant must at least be sentenced to a correctional penalty or a fine or must have been acquitted

The witness who gave false testimony is liable even if the court did not consider his testimony

The probative value of the testimonial evidence is subject to the rules of evidence. It may not be considered at all by
the judge. But whether the testimony is credible or not or whether it is appreciated or not in the context that the false
witness wanted it to be, the crime of false testimony is still committed, since it is punished not because of the effect
it produces, but because of its tendency to favor the accused. (People vs. Reyes)

Penalty is dependent upon sentence imposed on the defendant

Article 181
FALSE TESTIMONY IN FAVOR OF DEFENDANT in a criminal case:
Elements:
1.
A person gives false testimony;
2.

In favor of the defendant;

3.

In a criminal case.

False testimony by negative statement is in favor of the defendant

False testimony need not in fact benefit the defendant

A statement of a mere opinion is not punishable

Conviction or acquittal is not necessary (final judgement is not necessary).


influence the acquittal

A defendant who voluntarily goes up on the witness stand and falsely imputes the offense to another person the
commission of the offense is liable under this article. If he merely denies the commission of the offense, he is not
liable.

Basis of penalty: gravity of the felony charged against the defendant

The false testimony need not

Article 182
FALSE TESTIMONY IN CIVIL CASES
a.

ELEMENTS:
That the testimony must be given in a civil case.

b.

That the testimony must relate to the issues presented in said case.

c.

That the testimony must be false.


d.
e.

That the false testimony must be given by the defendant knowing the same to be false.
That the testimony must be malicious and given with an intent to affect the issues presented in
the said case

Not applicable when testimony given in a special proceeding (in this case, the crime is perjury)

Basis of penalty: amount involved in the civil case

Distinctions between perjury and false testimony:


PERJURY
1. Non-judicial proceedings.
2. Statement or testimony is required by law.
3. Amount involved is not material.
4. immaterial whether statement or testimony is
favorable or not to the accused.

FALSE TESTIMONY
1. Given in a judicial proceeding.
2. Testimony need not be required by law.
3. Amount involved in civil cases is material.
4. It is always material in criminal cases.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Article183
FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION
ELEMENTS:
a.

That an accused made a statement under oath or made an affidavit upon a material matter.

b.

That the statement or affidavit was made before a competent officer, authorized to receive and
administer oath.

c.

That in that statement or affidavit, the accused made a willful and deliberate assertion of a
falsehood, and

d.

That the sworn statement or affidavit containing the falsity is required by law.

2 ways of committing perjury:


a. by falsely testifying under oath
b. by making a false statement

Subornation of perjury: procures another to swear falsely.

Solemn affirmation: refers to non-judicial proceedings and affidavits

A false affidavit to a criminal complaint may give rise to perjury

Two contradictory sworn statements are not sufficient to convict the affiant for the crime of perjury. There must be
evidence to show which is false. The same must be established or proved from sources other than the two
contradictory statements. (People vs. Capistrano, 40 Phil. 902)

A matter is material when it is directed to prove a fact in issue

The test of materiality is whether a false statement can influence the court (People vs. Bnazil).

A competent person authorized to administer an oath means a person who has a right to inquire into the
questions presented to him upon matters under his jurisdiction

There is no perjury if the accused signed and swore the statement before a person not authorized to administer oath
(People vs. Bella David).

There is no perjury through negligence or imprudence since the assertion of falsehood must be willful and
deliberate

Because of the nature of perjury, which is the willful and corrupt assertion of a falsehood, there is no perjury
committed through reckless imprudence or simple negligence under Article 365. Since admittedly perjury can only be
committed by means of dolo, then good faith or lack of malice is a good defense when one is indicted for the crime of
perjury.

Even if there is no law requiring the statement to be made under oath, as long as it is made for a legal purpose,
it is sufficient

If there is no requirement of law to place the statement or testimony under oath, there is no Perjury
considering the phrases oath in cases in which the law so requires in Article 183.
The affidavit or sworn statement must be required by law like affidavit of adverse claim to protect ones interest on
real property; or an affidavit of good moral character to take the bar examination. So if the affidavit was made but
the same is not required by law, even if the allegations are false, the crime of perjury is not committed. (Diaz vs.
People, 191 SCRA 86)

Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings

False testimony before the justice of the peace during the P.I. may give rise to the crime of perjury because false
testimony in judicial proceedings contemplates an actual trial where a judgment of conviction or acquittal is
rendered

A person who knowingly and willfully procures another to swear falsely commits subornation of perjury and the
witness suborned does testify under circumstances rendering him guilty of perjury.

The false testimony is not in a judicial proceeding

False testimony vs. Perjury


When one testifies falsely before the court, the crime committed is false testimony. If one testifies falsely in a nonjudicial proceeding, the crime committed is perjury. In false testimony, it is not required that the offender asserts a
falsehood on a material matter. It is enough that he testifies falsely with deliberate intent. In perjury, the witness
must testify or assert a fact on a material matter with a full knowledge that the information given is essentially
contrary to the truth. Material matter means the main fact which is the subject or object of the inquiry.
Article 184
OFFERING FALSE TESTIMONY IN EVIDENCE

ELEMENTS:
a
That the offender offered in evidence a false witness or false testimony.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

That he knew the witness or the testimony was false.

That the offer was made in a judicial or official proceeding.

The false witness need not be convicted of false testimony. The mere offer is sufficient.

The offender in this article knows that the witness to be presented is a false witness or that the witness will lie while
testifying. The proceedings is either judicial or official. There is a formal offer of testimonial evidence in the
proceedings. The witness is able to testify and the offender, knowing the testimony is given by the witness to be false,
nevertheless offers the same in evidence. In this case, the person offering the false testimony must have nothing to do
in the making of the false testimony. He knows that the witness is false and yet he asks him to testify and thereafter
offers the testimony in evidence. So if the offeror, aside from being such, is also the person responsible in inducing or
convincing the false witness to lie, Article 184 will not apply. The applicable article will be Article 180, 181, 182, or 183
as the case may be. The offenders in this case will be charged with perjury; the inducer as principal by inducement and
the induced party as the principal by direct participation.
It is for this reason that subornation of perjury is no longer treated as a specific felony with a separate article of its
own. Nevertheless, it is a crime defined and punished under the Revised Penal Code. The crime committed by one who
induces another to testify falsely and the person who agrees and in conspiracy with the inducer, testifies falsely, is
perjury. (People vs. Padol, 66 Phil. 365)
FRAUDS
Article 185
MACHINATIONS IN PUBLIC AUCTION

ELEMENTS:
a
That there be a public auction.
b

That the accused solicited any gift or a promise from any of the bidders.

That such gifts or promise was the consideration for his refraining from taking part in that public
auction.

That the accused had the intent to cause the reduction of the price of the thing auctioned.

ELEMENTS OF ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY:


a
That there be a public auction.
b

That the accused attempted to cause the bidders to stay away from that public auction

That it was done by threats, gifts, promises, or any other artifice.

That the accused had the intent to cause the reduction of the price of the thing auctioned.

Article 186
MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE:

Acts punished:
a.

Combination to prevent free competition in the market


Elements
1.

Entering into any contract or agreement or taking part in any conspiracy or combination in
the form of a trust or otherwise;

2.

In restraint of trade or commerce or to prevent by artificial means free competition in the


market.

b.

By entering into a contract or agreement or taking part in any conspiracy or combination in the form
of a trust or otherwise, in restraint of trade or commerce or prevent by artificial means free
competition in the market (It is enough that initial steps are taken. It is not necessary that there be actual
restraint of trade)

c.

Monopoly to restrain free competition in the market


Elements
1.

By monopolizing any merchandise or object of trade or commerce, or by combining with any


other person or persons to monopolize said merchandise or object;

2.

In order to alter the prices thereof by spreading false rumors or making use of any other
artifice;

3.

To restrain free competition in the market

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
d.

Manufacturer, producer or processor or importer combining, conspiring or agreeing with any person to
make transactions prejudicial to lawful commerce or to increase the market price of the merchandise.
Elements
1.

Manufacturer, producer, processor or importer of any merchandise or object of commerce;

2.

Combines, conspires or agrees with any person;

3.

Purpose is to make transactions prejudicial to lawful commerce or to increase the market


price of any merchandise or object of commerce manufactured, produced, processed,
assembled or imported into the Philippines.

Person/s liable:
a. manufacturer
b. producer
c. processor
d. importer

Crime is committed by:


a. combining
b. conspiring
c. agreeing with another person

The purpose is:


a. to make transactions prejudicial to lawful commerce
b. to increase the market price of any merchandise or object of commerce manufactured, produced, processed,
assembled or imported into the Phil

Also liable as principals:


a. corporation/association
b. agent/representative
c. director/manager who willingly permitted or failed to prevent commission of above offense

Aggravated if items are:


a. food substance
b. motor fuel or lubricants
c. goods of prime necessity

Article 187
IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER
PRECIOUS METALS OR THEIR ALLOYS

ELEMENTS:
a
That the offender imports, sells or disposes of any of those articles or merchandise.
b

That the stamps, brands, or marks or those articles or merchandise fails to indicate the actual
fineness or quality of said metals or alloys.

That the offender knows that the said stamp, brand, or mark fails to indicate the actual fineness or
quality of the metals or alloys.

To be criminally liable, it is important to establish that the offender knows the fact that the imported merchandise
fails to indicate the actual fineness or quality of the precious metal. If the importer has no expertise on the matter
such that he has no way of knowing how the fraud was committed, the existence of such fact may be seriously
considered as a defense.
What the law punishes herein is the selling of misbranded goods made of gold, silver and other precious metals.
Therefore, it must be shown that the seller knows that the merchandise is misbranded. Hence, dishonesty is an
essential element of the crime.
Article 188
SUBSTITUTING ALTERING TRADE-MARK, TRADENAME, OR SERVICE MARK

Acts punishable:
a
By (a) substituting the trade name (t/n) or trademark (t/m) of some other manufacturer or dealer or a
colorable imitation thereof, for the t/n or t/m of the real manufacturer or dealer upon any article of
commerce and (b) selling the same.
b

By selling or by offering for sale such article of commerce, knowing that the t/n or t/m has been
fraudulently used

By using or substituting the service mark of some other person, or a colorable imitation of such marks,
in the sale or advertising of services

By printing, lithographing or reproducing t/n, t/m or service mark of one person, or a colorable
limitation thereof, to enable another person to fraudulently use the same, knowing the fraudulent
purpose for which it is to be used.

If a particular person is defrauded by the offender; as in the case of locally manufactured goods, which the
offender, by altering the label, are made to appear as imported articles and sold to a particular person, the crime

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
committed is undoubtedly estafa as far as the particular person is concerned. But if the falsely mislabeled goods
are displayed in a store and offered for sale to the public in general, the crime committed is punished under
Article 188. So, if the deception is isolated and is confined to a particular person or group of persons, estafa is
committed. If the fraud is employed against the public, Article 188 is violated.

Must not be another manufacturer otherwise unfair competition

Take note that after making the substitution the goods are displayed in the store or market for sale, Article 188 is
already committed even if no customer comes to buy any of the goods on display. The mere offer for sale to the public
consummates the crime.
The pendency of the administrative aspect of the case is not a prejudicial question in the resolution of the criminal
case.
Article 189
UNFAIR COMPETITION, FRAUDULENT REGISTRATION OF TRADENAME, TRADEMARK SERVICE MARK, FRAUDULENT
DESIGNATION OF ORIGIN, AND FALSE DESCRIPTION

Acts punished:
a
Unfair competition by selling his goods, giving them the general appearance of the goods of another
manufacturer or dealer
b

Fraudulent designation of origin; false description by (a) affixing to his goods or using in connection with
his services a false designation of origin; or any false description or representation, and (b) selling such goods
or services

Fraudulent registration by procuring fraudulently from the patent office the registration of t/m, t/m or
service mark.

ELEMENTS:
a
That the offender gives his goods the general appearance of the goods of another manufacturer or
dealer
b

That the general appearance is shown in the (a) goods themselves, or in the (b) wrapping of their
packages, or in the (c) device or words therein, or in (d) any other feature of their appearance

That the offender offers to sell or sells those goods or gives other persons a chance or opportunity to
do the same with a like purpose.

That there is actual intent to deceive the public or defraud a competitor.

Under Republic Act No. 166, Section 29, paragraph 2, unfair competition is defined as follows: It consists in employing
deception or any other means contrary to good faith by which any person shall pass off the goods manufactured by him
or in which he deals, or his business, or services for those of the one having established goodwill, or committing any
acts calculated to produce such result.
The true test of unfair competition is whether certain goods have been clothed with an appearance which is likely to
deceive the ordinary purchaser exercising ordinary care. (U.S. vs. Manuel, 7 Phil. 221)
For unfair competition to take place, it must be the manufacturer of the goods who will cloth or label his goods with
the trade name or trademark of another manufacturer, who has established a good name or good will in the mind of
the public because of the quality of the merchandise manufactured by him. The imitator is also a manufacturer of the
same kind of product but of inferior quality. By labeling his product with the trademark or trade name of said
manufacturer, he profits from the goodwill of another.
If the labeling or clothing of the goods is not done by another manufacturer, the crime committed is not unfair
competition but substitution of trademark or trade name under Article 188.
When the honorable Supreme Court declared that unfair competition is broader and more inclusive than infringement
of trade name or trademark. In infringement of trade name or trademark, the offended party has a peculiar symbol or
mark on his goods which is considered a property right which must therefore be protected. In unfair competition, the
offended party has identified in the mind of the public the goods he manufactures to distinguish it from the goods of
the other manufacturers. In infringement of trade name or trademark, the offender uses the trade name or trademark
of another in selling his goods, while in unfair competition, the offender gives his goods the general appearance of the
goods of another manufacturer and sells the same to the public. (E. Spinner & Co. vs. New Hesslein Corp., 54 Phil.
224)
TITLE FIVE
CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS (190-194)
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
(RA No. 9165)
I.

Acts Punishable:
a. importation of prohibited drugs
b. sale, administration, delivery, distribution and transportation of prohibited drugs
c. maintenance of a den, dive or resort for prohibited drug users
d. being employees or visitors of drug den
e. manufacture of prohibited drugs
f.
possession or use
g. cultivation of plants
h. failure to comply with provisions relative to keeping of records of prescription
i.
unnecessary prescription
j.
possession of opium pipe and other paraphernalia

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
k.

Importation, sale, etc. of regulated drugs

DRUG SYNDICATE any organized group of two(2) or more persons forming or joining together with the intention of
committing any offense prescribed under the act.
PLANTING OF EVIDENCE the willful act by any person of maliciously and surreptitiously inserting, placing, adding or
attaching directly or indirectly, through any overt or covert act, whatever quantity of any dangerous drug and/or
controlled precursor and essential chemical in the person, house, effects, or in the immediate vicinity of an
innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of
this Act.
P D E A Philippine Drug Enforcement Unit

Importation of prohibited/regulated drugs.


PENALTY : Life to death & fine of 500,000 to 10 million regardless of the Quantity
MAXIMUM PENALTY :
1) Use of diplomatic Passport
2) Financier

and purity involved

Sale, administration, delivery, distribution and transaction of prohibited/regulated drugs.

- NOT BAILABLE
PENALTY : Life to death & fine of 500,000 to 10 million regardless of the Quantity
and purity involved
( includes BROKER )
Qualifying Circumstances
1) if the victim of the offense is a minor or should a prohibited/regulated drug involve in any offense under this
section be the proximate cause of the death of a victim thereof, the maximum penalty herein shall be imposed.
2) Financier
3) Sale made within 100m from school

Maintenance of a den, dive, or resort for prohibited/regulated drug users.


** Property escheated in favor of the government
Qualifying Circumstance where a prohibited/regulated drug is administered, delivered, or sold to a minor who
is allowed to use the same in such place, or should a prohibited drug be the proximate cause of the death of the
person using the same in such den, dive or resort, the maximum of the penalty shall be imposed.

Manufacture of prohibited/regulated drugs.

Possession of prohibited/regulated drugs.


PENALTY :
a. Life to death & fine of 500,000 to 10 million
10 gms. Opium, morphine, heroine, cocaine, marijuana resin and Ecstasy.
50 gms. Shabu
500 gms. Marijuana
b. Life Imprisonment and a fine of P400,000.00-P500,000.00
10-50 gms. Shabu
c. 20 years to Life and a fine of 400,000.00-500,000.00
5-10 gms. Shabu
d. 12 20 years and a fine of 300,000.00-400,000.00
Less than 5 gms. Of any dangerous drugs

Possession of paraphernalia
6 mos. 4 yrs. & fine of 10,000 50,000
Use of Dangerous Drugs A person apprehended or arrested, who is found to be positive for use of any dangerous
drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a
government center for the first offense, subject to the provisions of Article VIII of this Act.
If apprehended using any dangerous drug act for the second time, he/she shall suffer the penalty of
imprisonment ranging from six (6) years and one (1) day to twelve(12) years and a fine ranging from Fifty thousand
pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00);
Provided, That this section shall not be applicable where the person tested is also found to have in his/her
possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the
provisions stated therein shall apply.

Cultivation of plants which are sources of prohibited drugs.


Penalty - Life to death and a fine of P500,000.00 to P10 Million
a

Note: The land/portions thereof and/or greenhouses in which any of the said plants is cultivated or cultured
shall be confiscated and escheated to the State, unless the owner thereof can prove that he did not know of
such cultivation or culture despite the exercise of due diligence on his part.

b
Qualifying Circumstance
1. If the land involved is part of the public domain, the maximum of the penalty herein provided shall be imposed.
2. Maximum penalty imposed on financier

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

Failure to keep records


prohibited/regulated drugs

of

prescription,

sales,

purchases,

acquisitions

and/or

deliveries

of

Persons liable:
Pharmacist, Physician, Dentist, Veterinarian, Manufacturer, Wholesaler, Importer, Distributor, Dealer, Retailer

Unlawful prescription of prohibited/regulated drugs


Penalty life to death and a fine of P500,000 to P10 Million

Unnecessary prescription of prohibited/regulated drugs


Penalty 12 to 20 years and fine of P100,000 to P500,000 plus revocation of license
Persons Liable: Physician or dentist who shall prescribe any prohibited/regulated drug for any person whose
physical/physiological condition does not require the use of thereof.

Confiscation and forfeiture of the proceeds or instruments of the unlawful act, including the properties of the
proceeds derived from the illegal trafficking of
dangerous drugs.
Forfeited infavor of the government
After the conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately
schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and
properties of the accused either owned or held by him or in the name of some other persons if the same shall be found
to be manifestly out of proportion of his/her income; Provided, however, That if the forfeited property is a vehicle,
the same shall be auctioned off not later than five (5) days upon order of confiscation or forfeiture.
During the pendency of the case in the Regional Trial Court, no property, or income derived therefrom, which may be
confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodia legis and no
bond shall be admitted for the release of the same.
Custody and disposition of confiscated, seized and/or surrendered dangerous drugs
PDEA in charge and custody for proper disposition
Procedure in Disposal
1. Apprehending team immediately after seizure shall make physical inventory and photograph the seized drugs in the
presence of the accused or his counsel, a representative of the media and DOJ and any elected public official who shall
sign the copies of the inventory.
2. Within 24 hours upon confiscation/seizure of dangerous drugs, such drug shall be submitted to the PDEA forensic
laboratory for a qualitative and quantitative examination.
3. Certification of the forensic examination results shall be issued within 24 hours.
4. After the filing of the criminal case, the proper court shall conduct and ocular inspection within 72 hours of the
confiscated, seized and/or surrendered dangerous drugs.
5. After ocular inspection by the court, PDEA shall destroy or burn the confiscated, seized and/or surrendered
dangerous drugs within 24 hours in the presence of the accused or his counsel, representative of the media and the
DOJ, civil society groups and any elected public officer.
6. PDEA shall issue a certification of such destruction and samples of the dangerous drugs shall be submitted to the
court.
Plea-Bargaining
Any person charged under any commission of this act regardless of the imposable penalty shall not be allowed to avail
of the provision on plea-bargaining.
Probation Law
Any person convicted for drug trafficking regardless of the penalty imposed cannot avail of the privilege granted by the
probation law.
Qualifying Aggravating Circumstance
A positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a
crime by an offender and the application of the penalty provided for in the RPC.

Possession of opium pipe, equipment, apparatus or any paraphernalia fit or intended for smoking, consuming,
administering, injecting, ingesting, or otherwise using opium or any other prohibited drug, shall be prima facie
evidence that the possessor has smoked, consumed, administered to himself, injected or used a prohibited drug.

Attempt and conspiracy to commit the following offenses:


a
Importation of dangerous drugs
b

Sale, administration, delivery, distribution and transportation of dangerous drugs

Maintenance of a den, dive or resort for prohibited drugs

Manufacture of dangerous drugs

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
e

Cultivation or culture of plants which are sources of prohibited drugs

Other persons liable:


a

If the violation of the Act is committed by a partnership, corporation, association or any judicial person, the
partner, president, director, or manager who consents to or knowingly tolerates such violation shall be held
criminally liable as co-principal.

Partner, president, director, manager, officer or stockholder, who knowingly authorizes, tolerates, or consents
to the use of a vehicle, vessel, or aircraft as an instrument in the importation, sale, delivery, distribution or
transportation of dangerous drugs, or to the use of their equipment, machines or other instruments in the
manufacture of any dangerous drugs, if such vehicle, vessel, aircraft, equipment, or other instrument, is
owned or under the control and supervision of the partnership, corporation, association or judicial entity to
which they are affiliated.

Criminal liability of a public officer or employee for misappropriation, misapplication or failure to account for
the confiscated, seized and/or surrendered dangerous drugs
Penalty - life to death and a fine of P500,000.00 to P10 Million in addition to absolute perpetual disqualification
from any public office.
Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous
drugs or have received any financial or material contributions from persons found guilty of drug trafficking
dangerous drugs, shall be removed from office and perpetually disqualified from holding any elective or
appointive positions in the government.
Planting of Evidence
Any person who is found guilty of planting any dangerous drug regardless of the quantity and purity, shall suffer
the penalty of death.
Drug Testing
1. Applicants for drivers license - mandatory
2. Applicants for firearms license and for permit to carry - mandatory
3. Students of secondary and tertiary schools random (school shall shoulder expenses)
4. Officers and employees of private and public offices random (employer shall shoulder expenses)
Any officer or employee found positive for use of dangerous drug shall be dealt with administratively which shall
be a ground for suspension or termination subject to Art. 282 of the Labor Code and pertinent provisions of the
Civil Service Law.
5. Officers and members of the military, police and other law enforcement agencies annual mandatory
6. All persons charged before the prosecutors office with a criminal offense having an impossible penalty of
imprisonment of not less than six (6) years and one (1) day shall have to undergo a mandatory drug test
7. All candidates for public office whether appointed or elected both in the national or local government shall
undergo a mandatory drug test.
Issuance of False or fraudulent drug test results (whether willfully or through gross negligence)
Penalty 6 to 12 years and fine P100,000.00 to P500,000.00
Additional penalty revocation of license to practice and closure of the drug testing center
II.

For the purpose of enforcing the provisions of this Act, all school heads, supervisors and teachers shall be
deemed to be persons in authority and, as such, are vested with the power to apprehend, arrest, or cause
the apprehension or arrest of any person who shall violate any of the said provision.

III.

a.

NOTE: They shall be considered as persons in authority if they are in the school or within its immediate
vicinity, or beyond such immediate vicinity if they are in attendance in any school or class function in
their official capacity as school heads, supervisors or teachers.

b.

Any teacher or school employee who discovers or finds that any person in the school or within its
immediate vicinity is violating this Act shall have the duty to report the violation to the school head or
supervisor who shall, in turn, report the matter to the proper authorities. Failure to report in either
case shall, after hearing, constitute sufficient cause for disciplinary action.

Rules regarding rehabilitation of drug dependents

Voluntary submission
a. Voluntary submission of a drug dependent to confinement, treatment and rehabilitation by the drug
dependent himself or through his parent, guardian or relative within the 4 th civil degree of consanguinity or
affinity, in a center and compliance with such conditions therefor as the Dangerous Drugs Board may
prescribe shall exempt from criminal liability for possession or use of the prohibited/regulated drug.
(Applicable only to those liable for use of dangerous drugs and not to possession and sale)
b.

Should the drug dependent escape from the center, he may submit himself for confinement within 1 week
from the date of his escape, of his parent guardian or relative may, within the same period surrender him for
confinement.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
c.

Upon application of the Board, the Court shall issue an order for recommitment if the drug dependent does
not resubmit himself for confinement or if he is not surrendered for recommitment.

d.

If, subsequent to such recommitment, he should escape again, he shall no longer be exempt from criminal
liability for the use or possession of any dangerous drug.

e.

If a person charged with an offense is found by the fiscal or by the Court at any stage of the proceedings, to
be a drug dependent, the fiscal or court as the case may be, shall suspend all further proceedings and
transmit records of the case to the Board.

f.

After his rehabilitation, he shall be prosecuted for such violation. In case of conviction, the judgement shall,
if the accused is certified by the treatment and rehabilitation center to have maintained good behavior,
indicate that he shall be given full credit for the period he was confined in the center.
NOTE: When the offense is use of dangerous drugs and the accused is not a recidivist, the penalty thereof
shall be deemed to have been served in the center upon his release therefrom.

g.

The period of prescription of the offense charged shall not run during the time that the respondent/accused
is under detention or confinement in a center.

h.

Requisites of suspension of sentence for first offense in a minor:


1.

If accused is a minor (under 18 years of age at the time of the commission of the offense but not more
than 21 years of age when the judgement should have been promulgated.

2.

He has not been previously convicted of violating any provision of this Act or of the RPC or placed on
probation.

Sentence shall be deferred and the accused shall be placed on probation under the supervision of
the Board.

In case of violation of conditions of pardon, court shall pronounce judgment of conviction and he
shall serve sentence.

If accused did not violate conditions of probation, case shall be dismissed upon expiration of the
designated period.

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

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Prosecution and punishment under this Section shall be without prejudice to any liability for violation of any existing
law.
Section 92. Delay and Bungling in the Prosecution of Drug Cases. - Any government officer or employee tasked with
the prosecution of drug-related cases under this Act, who, through patent laxity, inexcusable neglect, unreasonable
delay or deliberately causes the unsuccessful prosecution and/or dismissal ranging from 12 years and 1 day to 20 years
without prejudice to his/her prosecution under the pertinent provisions of the Revised Penal Code.
a

Buy Bust Operation no law or rule to require policemen to adopt a uniform way of identifying BUY MONEY
(P v. Abedes)

Absence of ultraviolet powder is not fatal in the prosecution

Transportation/importation of MJ immaterial whether there may or may not be a distinction for the MJ

Distinguish Entrapment and Instigation:


1.

If prosecution can prove the crime without presenting the informer or asset not necessary because
their testimonies are merely corroborative. Poseur buyer it depends on whether the prosecution can
prove the crime without their testimonies (P v. Rosalinda Ramos)

2.

Under the RA, special aggravating circumstance if a crime has been committed while the accused was
high on drugs (P v. Anthony Belgar)

3.

Delivery or Sale of Prohibited Drugs the accused must be aware that what he is selling or delivering
was prohibited drug. But the moment the fact of sale or delivery is proved by prosecution, the burden
to prove that the accused is not aware that drugs are prohibited falls on the defense (P v. Aranda)

4.

P v. Angelito Manalo burden of proving the authority to possess shabu is a matter of defense

5.

P v. Hilario Moscaling court may take judicial notice of the word shabu

6.

Criminal liabilities of a policeman who sold the drugs confiscated from a pusher: violation of RA 9165
and malversation under RPC.

Planting evidence to implicate another

Buy Bust Operation form of entrapment (P v. Alberto) not necessary to have prior police surveillance (P
v. Carlos Franca)

Possession constructive or actual not necessary to adduce the marked money as evidence (P v. Romeo
Macara)

Separate crimes sale/possession of MJ found in his possession after he was frisked but he cant be
convicted for possession of MJ that he sold

If victim is minor or drug is proximate cause of death max penalty is imposed


1.

First offense of a minor suspension of sentence


CONDITIONS:

under 18 at time of commission but not more than 21 at time when judgment was
promulgated

found guilty of possession or use of prohibited or regulated drugs

not been previously convicted of violating any provision of this Act or the RPC

not been placed on probation

defer sentence, place on probation for 6 months to 1 year

violation of probation pronounce sentence convict and serve sentence

no violation discharge him and dismiss the proceeding

if minor is drug dependent commit to a center for treatment and rehabilitation

TITLE SIX
CRIMES AGAINST PUBLIC MORALS
Crimes against public morals
Gambling (Art. 195);

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Importation, sale and possession of lottery tickets or advertisements (Art. 196);
Betting in sport contests (Art. 197);
Illegal betting on horse races (Art. 198);
Illegal cockfighting (Art. 199);
Grave scandal (Art. 200);
Immoral doctrines, obscene publications and exhibitions (Art. 201); and
Vagrancy and prostitution (Art. 202).
Article 195. What Acts Are Punishable in Gambling
Acts punished
1.

Taking part directly or indirectly in


a.

any game of monte, jueteng, or any other form of lottery, policy, banking, or percentage game,
dog races, or any other game or scheme the results of which depend wholly or chiefly upon chance
or hazard; or wherein wagers consisting of money, articles of value, or representative of value are
made; or

b.

the exploitation or use of any other mechanical invention or contrivance to determine by chance
the loser or winner of money or any object or representative of value;

2.

Knowingly permitting any form of gambling to be carried on in any place owned or controlled by the
offender;

3.

Being maintainer, conductor, or banker in a game of jueteng or similar game;

4.

Knowingly and without lawful purpose possessing lottery list, paper, or other matter containing letters,
figures, signs or symbol which pertain to or are in any manner used in the game of jueteng or any similar
game.

What is gambling?
It is a game or device or method, the result of which depends wholly or chiefly upon chance or hazard. So, if
the game depends wholly upon skill or ability of the players, there is no gambling.
The manner of determining whether the game played is prohibited or not is whether the result will depend wholly or
chiefly upon chance or hazard.
Significantly, if the game has been identified and declared as a form of gambling by express provision of law, there will
be no need or requirement to go into the methods upon how the game is played.
What is lottery?
It is a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a
valuable consideration for a chance to obtain a prize. (US vs. Filart, et al., 30 Phil. 80)
Pinball machines or slot machines are considered gambling devices because the result depends upon chance or hazard.
If the prizes do not come out of the funds or contributions of the participants, there is no lottery. (Uy vs. Palomar, 27
SCRA 287)
Article 196.
IMPORTATION, SALE AND POSSESSION OF LOTTERY TICKETS OR ADVERTISEMENTS
Acts punished
1. Importing into the Philippines from any foreign place or port any lottery ticket or advertisement; or
2. Selling or distributing the same in connivance with the importer;
3. Possessing, knowingly and with intent to use them, lottery tickets or advertisements; or
4.

Selling or distributing the same without connivance with the importer of the same.

Note that possession of any lottery ticket or advertisement is prima facie evidence of an intent to sell, distribute or
use the same in the Philippines.
Article 197.
BETTING IN SPORT CONTESTS

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
This article has been repealed by Presidential Decree No. 483 (Betting, Game-fixing or Point-shaving and
Machinations in Sport Contests):
PENALIZING BETTING, GAME-FIXING OR POINT-SHAVING AND
MACHINATIONS IN SPORTS CONTESTS
PD 483

Acts Punishable:
a.
Betting: Betting money or any object or article of value of representative value upon the result of any
game, races and other sports contests.
b.

Game-fixing: any arrangement, combination, scheme or agreement by which the result of any game,
races, or sports contests shall be predicated and/or known other than on the basis of the honest playing skill
or ability of the players or participants.

c.

Point-shaving: any such arrangement combination, scheme or agreement by which the skill or ability of
any player or participant in a fame, races, or sports contests to make points of scores shall be limited
deliberately in order to influence the result thereof in favor of one or other team, player or participant.

d.

Game Machination: any other fraudulent, deceitful, unfair or dishonest means, method, manner or
practice employed for the purpose of influencing the result of any game, races or sports contest.
Article 198.
ILLEGAL BETTING ON HORSE RACE
Acts punished
Betting on horse races during periods not allowed by law;
Maintaining or employing a totalizer or other device or scheme for betting on races or realizing profit therefrom during
the periods not allowed by law.
When horse races not allowed:
July 4 (Republic Act No. 137);
December 30 (Republic Act No. 229);
Any registration or voting days (Republic Act No. 180, Revised Election Code); and
Holy Thursday and Good Friday (Republic Act No. 946).
Article 199.
ILLEGAL COCKFIGHTING
This article has been modified or repealed by Presidential Decree No. 449 (The Cockfighting Law of 1974):
COCKFIGHTING LAW OF 1974
PD 449
I.

Scope This law shall govern the establishment, operation, maintenance and ownership of cockpits.

II.

Rules:
A.

Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own, manage and
operated cockpits.

B.

Only one cockpit shall be allowed in each city or municipality with a population of 100,000 or less.

C.

Cockpits shall be constructed and operated within the appropriate areas as prescribed in the Zoning Law
or ordinance.

D.

When allowed:
1.

Cockfighting shall be allowed only in licensed cockpits during Sundays and legal holidays and during
local fiestas for not more than 3 days; or

2.

During provincial, city or municipal, agricultural, commercial or industrial fair, carnival or


exposition for a similar period of 3 days upon resolution of the province, city or municipality where
such fair, carnival or exposition is to be held, subject to the approval of the Chief of Constabulary
or his authorized representative.

Limitations:
a) No cockfighting on the occasion of such fair, carnival or exposition shall be allowed within the
month of the local fiesta or for more than 2 occasions a year in the same city of municipality.
b)

No cockfighting shall be held on December 30, June 12,November 30, Holy Thursday, Good Friday,
Election Day and during registration days for such election/referendum.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
3.

If the purpose is for the entertainment of foreign dignitaries or for tourists, or for returning
balikbayans, or for the support of national fund-raising campaigns for charitable purposes as may
be authorized by the Office of the President upon resolution of a provincial board, city or municipal
council, in licensed cockpits or in playgrounds or parks.
Limitations: This privilege shall be extended for only one time, for a period not exceeding 3 days,
within a year to a province, city or municipality.

E.

No gambling of any kind shall be permitted on the premises of the cockpit or place of cockfighting
during cockfights.

F.

City or municipal mayors are authorized to issue licenses for the operation and maintenance of cockpits.

Presidential Decree No. 1602 (Simplifying and Providing Stiffer Penalties for Violations of Philippine Gambling
Laws)
Section 1. Violations and Penalties. -- The penalty of prision mayor in its medium degree or a fine ranging
from Five Hundred Pesos to Two Thousand Pesos and in case of recidivism the penalty of prision correccional in its
medium degree or a fine of ranging from One Thousand Pesos to Six Thousand Pesos shall be imposed upon:
(a)
Any person other than those referred to in the succeeding subsection who in any manner, shall
directly or indirectly take part in any game of cockfighting, jueteng, bookies (jai- alai or horse racing to include game
fixing) and other lotteries, cara y cruz or pompiang and the like, black jack, lucky nine, pusoy or Russian Poker,
monte, baccarat and other card games, palk que, domino, mahjong, high and low, slot machines, roulette, pinball and
other mechanical inventories or devices, dog racing, boat racing, car raising and other races, basketball, volleyball,
boxing, seven-eleven dice games and the like and other contests to include game fixing, point shaving and other
machinations banking or percentage game, or any other game or scheme, whether upon chance or skill, which do not
have a franchise from the national government, wherein wagers consisting of money, articles of value of representative
of value are made;
(b)
Any person who shall knowingly permit any form of gambling referred to in the preceding
subdivision to be carried on in inhabited or uninhabited places or any building, vessel or other means of transportation
owned or controlled by him. If the place where gambling is carried on has a reputation of a gambling place or that
prohibited gambling is frequently carried on therein or the place is a public or government building or barangay hall,
the culprit shall be punished by the penalty provided for in its maximum period and a fine of Six Thousand Pesos.
The penalty of prision correccional in its maximum degree and a fine of Six Thousand Pesos shall be imposed
upon the maintainer, conductor of the above gambling schemes.
The penalty of prision mayor in its medium degree and temporary absolute disqualification and a fine of Six
Thousand Pesos shall be imposed if the maintainer, conductor or banker is a government official, or if a player,
promoter, referee, umpire, judge or coach in cases of game-fixing, point-shaving and other game machination.
The penalty of prision correccional in its medium degree and a fine ranging from Five Hundred pesos to Two
Thousand Pesos shall be imposed upon any person who shall knowingly and without lawful purpose in any hour of any
day shall have in his possession any lottery list, paper, or other matter containing letter, figures, signs or symbols which
pertain to or in any manner used in the game of jueteng, jai-alai or horse racing bookies and similar game or lottery
which has taken place or about to take place.
Section 2.
Barangay Official. Any barangay official in whose jurisdiction such gambling house is
found and which house has the reputation of a gambling place shall suffer the penalty of prision correccional in its
medium period and a fine ranging from Five Hundred to Two Thousand Pesos and temporary absolute disqualifications.
While the acts under the Revised Penal Code are still punished under the new law, yet the concept of gambling under it
has been changed by the new gambling law.
Before, the Revised Penal Code considered the skill of the player in classifying whether a game is gambling or not. But
under the new gambling law, the skill of the players is immaterial.
Any game is considered gambling where there are bets or wagers placed with the hope to win a prize therefrom.
Under this law, even sports contents like boxing, would be gambling insofar as those who are betting therein are
concerned. Under the old penal code, if the skill of the player outweighs the chance or hazard involved in
winning the game, the game is not considered gambling but a sport. It was because of this that betting in boxing
and basketball games proliferated.
Unless authorized by a franchise, any form of gambling is illegal. So said the court in the recent resolution of the
case against the operation of jai-alai.
There are so-called parlor games which have been exempted from the operation of the decree like when the games are
played during a wake to keep the mourners awake at night. Pursuant to a memorandum circular issued by the
Executive Branch, the offshoot of the exemption is the intentional prolonging of the wake of the dead by gambling
lords.
As a general rule, betting or wagering determines whether a game is gambling or not. Exceptions: These are games
which are expressly prohibited even without bets. Monte, jueteng or any form of lottery; dog races; slot machines;
these are habit-forming and addictive to players, bringing about the pernicious effects to the family and economic life
of the players.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Mere possession of lottery tickets or lottery lists is a crime punished also as part of gambling. However, it is necessary
to make a distinction whether a ticket or list refers to a past date or to a future date.
Illustration:
X was accused one night and found in his possession was a list of jueteng. If the date therein refers to the past, X
cannot be convicted of gambling or illegal possession of lottery list without proving that such game was indeed played
on the date stated. Mere possession is not enough. If the date refers to the future, X can be convicted by the mere
possession with intent to use. This will already bring about criminal liability and there is no need to prove that the
game was played on the date stated. If the possessor was caught, chances are he will not go on with it anymore.
There are two criteria as to when the lottery is in fact becomes a gambling game:
1.

If the public is made to pay not only for the merchandise that he is buying, but also for the chance to win a
prize out of the lottery, lottery becomes a gambling game. Public is made to pay a higher price.

2.

If the merchandise is not saleable because of its inferior quality, so that the public actually does not buy
them, but with the lottery the public starts patronizing such merchandise. In effect, the public is paying for
the lottery and not for the merchandise, and therefore the lottery is a gambling game. Public is not made to
pay a higher price.

Illustrations:
(1)

A certain supermarket wanted to increase its sales and sponsored a lottery where valuable prices are offered
at stake. To defray the cost of the prices offered in the lottery, the management increased their prices of
the merchandise by 10 cents each. Whenever someone buys from that supermarket, he pays 10 cents more
for each merchandise and for his purchase, he gets a coupon which is to be dropped at designated drop boxes
to be raffled on a certain period.
The increase of the price is to answer for the cost of the valuable prices that will be covered at stake. The
increase in the price is the consideration for the chance to win in the lottery and that makes the lottery a
gambling game.
But if the increase in prices of the articles or commodities was not general, but only on certain items and the
increase in prices is not the same, the fact that a lottery is sponsored does not appear to be tied up with the
increase in prices, therefore not illegal.
Also, in case of manufacturers, you have to determine whether the increase in the price was due to the
lottery or brought about by the normal price increase. If the increase in price is brought about by the normal
price increase [economic factor] that even without the lottery the price would be like that, there is no
consideration in favor of the lottery and the lottery would not amount to a gambling game.
If the increase in the price is due particularly to the lottery, then the lottery is a gambling game. And the
sponsors thereof may be prosecuted for illegal gambling under Presidential Decree No. 1602.

(2)

The merchandise is not really saleable because of its inferior quality. A certain manufacturer, Bhey Company,
manufacture cigarettes which is not saleable because the same is irritating to the throat, sponsored a lottery
and a coupon is inserted in every pack of cigarette so that one who buys it shall have a chance to participate.
Due to the coupons, the public started buying the cigarette. Although there was no price increase in the
cigarettes, the lottery can be considered a gambling game because the buyers were really after the coupons
not the low quality cigarettes.
If without the lottery or raffle, the public does not patronize the product and starts to patronize them only
after the lottery or raffle, in effect the public is paying for the price not the product.

Under this decree, a barangay captain who is responsible for the existence of gambling dens in their own locality will
be held liable and disqualified from office if he fails to prosecute these gamblers. But this is not being implemented.
Gambling, of course, is legal when authorized by law.
Fund-raising campaigns are not gambling. They are for charitable purposes but they have to obtain a permit from
Department of Social Welfare and Development. This includes concerts for causes, Christmas caroling, and the like.
OFFENSES AGAINST DECENCY AND GOOD CUSTOMS
Article 200
GRAVE SCANDAL

ELEMENTS:
a. Offender performs an act
b.

Act is highly scandalous as offending against decency or good customs

c.

Highly scandalous conduct does not expressly fall within any other article of the RPC

d.

Committed in a public place or within the public knowledge or view. ( The public view is not
required, it is sufficient if in public place. For public knowledge, it may occur even in a private place;
the number of people who sees it is not material).

Grave scandal: consists of acts which are offensive to decency and good customs. They are committed publicly
and thus, give rise to public scandal to persons who have accidentally witnessed the acts

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
The crime of grave scandal is a crime against public morals. Necessarily, the offender must commit the crime in a
public place or within the view of the public.
In grave scandal, the scandal involved refers to moral scandal offensive to decency, although it does not disturb public
peace. But such conduct or act must be open to the public view.
In alarms and scandals, the scandal involved refers to disturbances of the public tranquility and not to acts offensive
to decency.

Decency: means properly observing the requirements of modesty, good taste etc

Customs: refers to established usage, social conventions carried on by tradition and enforced by social
disapproval in case of violation

If the acts complained of are punishable under another provision of the RPC, Art 200 is not applicable

Any act which is notoriously offensive to decency may bring about criminal liability for the crime of grave scandal
provided such act does not constitute some other crime under the Revised Penal Code. Grave scandal is a crime of last
resort.

The essence of grave scandal is publicity and that the acts committed are not only contrary to morals and good
customs but must likewise be of such character as to cause public scandal to those witnessing it.

Distinction should be made as to the place where the offensive act was committed, whether in the public place or in a
private place:
(1)

In public place, the criminal liability arises irrespective of whether the immoral act is open to the public
view. In short public view is not required.

(2)

When act offensive to decency is done in a private place, public view or public knowledge is required.

Public view does not require numerous persons. Even if there was only one person who witnessed the offensive act for
as long as the third person was not an intruder, grave scandal is committed provided the act does not fall under any
other crime in the Revised Penal Code.
Illustrations:
(1)

A man and a woman enters a movie house which is a public place and then goes to the darkest part of the
balcony and while there the man started performing acts of lasciviousness on the woman.
If it is against the will of the woman, the crime would be acts of lasciviousness. But if there is mutuality,
this constitutes grave scandal. Public view is not necessary so long as it is performed in a public place.

(2)

A man and a woman went to Luneta and slept there. They covered themselves their blanket and made the
grass their conjugal bed.
This is grave scandal.

(3)

In a certain apartment, a lady tenant had the habit of undressing in her room without shutting the blinds.
She does this every night at about eight in the evening. So that at this hour of the night, you can expect
people outside gathered in front of her window looking at her silhouette. She was charged of grave scandal.
Her defense was that she was doing it in her own house.
It is no defense that she is doing it in her private home. It is still open to the public view.

(4)

In a particular building in Makati which stands right next to the house of a young lady who goes sunbathing in
her poolside. Every morning several men in the upper floors would stick their heads out to get a full view of
said lady while in her two-piece swimsuit. The lady was then charged with grave scandal. Her defense was
that it is her own private pool and it is those men looking down at her who are malicious.
This is an act which even though done in a private place is nonetheless open to public view.

Article 201
IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS:

Persons liable:
a. Those who publicly expound or proclaim doctrines that are contrary to public morals
b.

Authors of obscene literature, published with their knowledge in any form

c.

Editors publishing such obscene literature

d.

Owners or operators of establishments selling obscene literature

e.

Those who exhibit indecent or immoral plays, scenes, acts or shows ion theaters, fairs, cinemas or
any other place

f.

Those who sell, distribute, or exhibit prints, engraving, sculptures or literature which are
offensive to morals

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

Morals: implies conformity to generally accepted standards of goodness or rightness in conduct or character

Test of obscenity: whether the matter has a tendency to deprave or corrupt the minds of those who are open to
immoral influences. A matter can also be considered obscene if it shocks the ordinary and common sense of men
as indecency.

The test is objective. It is more on the effect upon the viewer and not alone on the conduct of the performer.
If the material has the tendency to deprave and corrupt the mind of the viewer then the same is obscene and where
such obscenity is made publicly, criminal liability arises.
The law is not concerned with the moral of one person. As long as the pornographic matter or exhibition is made
privately, there is no crime committed under the Revised Penal Code because what is protected is the morality of the
public in general.
In committing this crime, there must be publicity. It means the act or acts done must come to the knowledge of third
persons.

However, Art 201 enumerates what are considered as obscene literature or immoral or indecent plays,
scenes or acts:
a. those w/c glorify criminals or condone crimes
b.

those w/c serve no other purpose but to satisfy the market for violence, lust or pornography

c.

those w/c offend against any race or religion

d.

those w/c tend to abet the traffic in and the use of prohibited drugs

e.

those that are contrary to law, public order, morals, good customs, established policies, lawful orders,
decrees and edicts

Mere nudity in paintings and pictures is not obscene

Pictures w/ a slight degree of obscenity having no artistic value and intended for commercial purposes fall within
this article

Publicity is an essential element

Sexual indulgence is not in itself immoral if done within the bounds of privacy and performed normally. The moment
the parties carry their private rights and privileges to public view, they expose themselves to public scrutiny.
Article 202
VAGRANTS AND PROSTITUTES:

Who are considered vagrants:


a.

Those who have no apparent means of subsistence and who have the physical ability to work yet
neglect to apply themselves to some useful calling

b.

Persons found loitering around public and semi-public places without visible means of support

c.

Persons tramping or wandering around the country or the streets with no visible means of support

d.

Idle or dissolute persons lodging in houses of ill-fame

e.

Ruffians or pimps and those who habitually associate with prostitutes (may include even the rich)

f.

Persons found loitering in inhabited or uninhabited places belonging to others, without any lawful
or justifiable reason provided the act does not fall within any other article of the RPC

If fenced and with prohibition of entry

Trespass to dwelling

If fenced and entered to hunt/fish

Attempted theft

If not fenced and with no prohibition of entry

Vagrancy

Who are considered prostitutes - refer to women who habitually indulge in sexual intercourse or lascivious
conduct for money or profit (if a man indulges in the same conduct: vagrancy)

In law the mere indulging in lascivious conduct habitually because of money or gain would amount to prostitution, even
if there is no sexual intercourse. Virginity is not a defense. Habituality is the controlling factor; it has to be more
than one time.
There cannot be prostitution by conspiracy. One who conspires with a woman in the prostitution business like pimps,
taxi drivers or solicitors of clients are guilty of the crime under Article 341 for white slavery.
TITLE SEVEN
CRIMES COMMITTED BY PUBLIC OFFICERS
Crimes committed by public officers

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
1.

Knowingly rendering unjust judgment (Art. 204);

2.

Judgment rendered through negligence (Art. 205);

3.

Unjust interlocutory order (Art. 206);

4.

Malicious delay in the administration of justice (Art. 207);

5.

Prosecution of offenses; negligence and tolerance (Art. 208);

6.

Betrayal of trust by an attorney or solicitor Revelation of secrets (Art. 209);

7.

Direct bribery (Art. 210);

8.

Indirect bribery (Art. 211);

9.

Qualified bribery (Art. 211-A);

10.

Corruption of public officials (Art. 212);

11.

Frauds against the public treasury and similar offenses (Art. 213);

12.

Other frauds (Art. 214);

13.

Prohibited transactions (Art. 215);

14.

Possession of prohibited interest by a public officer (Art. 216);

15.

Malversation of public funds or property Presumption of malversation (Art. 217)

16.

Failure of accountable officer to render accounts (Art. 218);

17.

Failure of a responsible public officer to render accounts before leaving the country (Art. 219);

18.

Illegal use of public funds or property (Art. 220);

19.

Failure to make delivery of public funds or property (Art. 221);

20.

Conniving with or consenting to evasion (Art. 223);

21.

Evasion through negligence (Art. 224);

22.

Escape of prisoner under the custody of a person not a public officer (Art. 225);

23.

Removal, concealment or destruction of documents (Art. 226);

24.

Officer breaking seal (Art. 227);

25.

Opening of closed documents (Art. 228);

26.

Revelation of secrets by an officer (Art. 229);

27.

Public officer revealing secrets of private individual (Art. 230);

28.

Open disobedience (Art. 231);

29.

Disobedience to order of superior officer when said order was suspended by inferior officer (Art. 232);

30.

Refusal of assistance (Art. 233);

31.

Refusal to discharge elective office (Art. 234);

32.

Maltreatment of prisoners (Art. 235);

33.

Anticipation of duties of a public office (Art. 236);

34.

Prolonging performance of duties and powers (Art. 237);

35.

Abandonment of office or position (Art. 238);

36.

Usurpation of legislative powers (Art. 239);

37.

Usurpation of executive functions (Art. 240);

38.

Usurpation of judicial functions (Art. 241);

39.

Disobeying request for disqualification (Art. 242);

40.

Orders or requests by executive officers to any judicial authority (Art. 243);

41.

Unlawful appointments (Art. 244); and

42.

Abuses against chastity (Art. 245).

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

The designation of the title is misleading. Crimes under this title can be committed by public officers or a non-public
officer, when the latter become a conspirator with a public officer, or an accomplice, or accessory to the crime. The
public officer has to be the principal.
In some cases, it can even be committed by a private citizen alone such as in Article 275 (infidelity in the custody of a
prisoner where the offender is not a public officer) or in Article 222 (malversation).
Article 203

WHO ARE PUBLIC OFFICERS:


a. Takes part in the performance of public functions in the Government, or
b.

Notes:
a.

Performs public duties as an employee, agent or subordinate official in the govt or any of its
branches

Public officer must derive his authority from:


1. direct provision of law
2. popular election
3.appointment by competent authority

In defining the term public officers, the law makes the reference to the manner by which he is appointed to public
office. He thus becomes a public officer because of his appointment by competent authority or because he is elected
to public office.
b.

Public officers: embraces every public servant from the lowest to the highest rank

Under Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act), the term public officer is broader and more
comprehensive because it includes all persons whether an official or an employee, temporary or not, classified or not,
contractual or otherwise. Any person who receives compensation for services rendered is a public officer.
c.

A government laborer is not a public officer. However, temporary performance by a laborer of public
functions makes him a public officer

Crimes committed by public officers are nothing but corruption in public service.
Breach of oath of office partakes of three forms:
d.

Misfeasance: means improper performance of an act which might be properly be performed

e.

Malfeasance: means performance of an act which ought not to be done

f.

Nonfeasance: means omission of an act which ought to be done

Malfeasance

Doing of an act which a public officer should not have done

Misfeasance

Improper doing of an act which a person might lawfully do

Nonfeasance

Failure of an agent to perform his undertaking for the principal

Article 204:
KNOWINGLY RENDERING AN UNJUST JUDGMENT

ELEMENTS:
a. Offender is a judge
b.

Renders a judgment in the case submitted to him for judgment

c.

Judgment is unjust

d.

Knowledge that the decision is unjust

Notes:
a.

Judgment: is a final consideration and determination by a court of competent jurisdiction of the issues
submitted to it in an action or proceeding

The law requires that the judgment must be written in the official language, personally and directly prepared by the
judge, and signed by him. It must contain a clear and distinct statement of facts proved or admitted by the defendant
and upon which the judgment is based.
b.

Unjust judgment: one which is contrary to law, or not supported by the evidence, or both

c.
1.
2.
3.

An unjust judgment may result from:


error (with bad faith)
ill-will or revenge
bribery

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
d.

There must be evidence that the decision rendered is unjust. It is not presumed

To be liable for the above crime, not only must the judgment be proved to be unjust .it must likewise be established to
have been knowingly rendered. There must be a conscious and deliberate intent to do an injustice. This usually occurs
when the judge entertains hatred, envy, revenge, or greed against one of the parties.
e.

Abuse of discretion or mere error of judgment cannot likewise serve as basis for rendering an unjust
judgment in the absence of proof or even an allegation of bad faith (motive or improper consideration).

Article 205
JUDGMENT RENDERED THROUGH NEGLIGENCE

ELEMENTS:
a. Offender is a judge
b.

Renders a judgment in a case submitted to him for decision

c.

Judgment is manifestly unjust

d.

Due to inexcusable negligence or ignorance

Manifestly unjust judgment: one that is so contrary to law that even a person having meager knowledge of the
law cannot doubt the injustice

The unjust judgment is merely the result of inexcusable negligence or ignorance of the law. The ignorance may refer to
substantive or procedural law. There must be an apparent and notorious manifestation of lack of logic and false
interpretation of the law. (Cortes vs. Catral, 279 SCRA 1)
Article 206
UNJUST INTERLOCUTORY ORDER

ELEMENTS:
a. That the offender is a judge.
b.

That he performs any of the following acts:


1. knowingly renders unjust interlocutory order or decree, or
2.

renders a manifestly unjust interlocutory order or decree through inexcusable negligence or


ignorance.

Interlocutory order: one issued by the court deciding a collateral or incidental matter. It is not a final
determination of the issues of the action or proceeding

The crime of knowingly rendering an unjust judgment, or knowingly issuing an unjust interlocutory order, may be
committed only by a judge of a trial court and never of an appellate court . The reason for this is that in appellate
court, not only one magistrate renders or issues the interlocutory order. An appellate court functions as a division and
the resolutions thereof are handed down only after deliberations among the members of a division so that it cannot be
said that there is malice or inexcusable negligence or ignorance in the rendering of a judgment or order that is
supposedly unjust as held by the Supreme Court in one administrative case.
Article 207
MALICIOUS DELAY IN THE ADMINISTRATION OR JUSTICE

ELEMENTS:
a. That the offender is a judge.
b.

That there is a proceeding in his court.

c.

That he delays the administration of justice.

d.

That the delay is malicious, that is, the delay is caused by the judge with deliberate intent to
inflict damage on either party in the case.

Mere delay without malice is not punishable

Malice must be proven. Malice is present where the delay is sought to favor one party to the prejudice of the other.
These have been interpreted by the Supreme Court to refer only to judges of the trial court.
The Constitution provides that cases submitted for decision before the Supreme Court must be resolved within two
years. Before the Court of Appeals, such cases must be resolved within 1 year; and before the Regional Trial Court and
Metropolitan Trial Court, such cases must be decided within a period of three months or ninety days.

Article 208
PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Acts Punished
1.

Maliciously refraining from instituting prosecution against violators of the law;

2.

Maliciously tolerating the commission of offenses.

ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES:


a. That the offender is a public officer or officer of the law who has a duty to cause the prosecution
of, or to prosecute offenses.
b.

That there is dereliction of the duties of his office, that is, knowing the commission of the crime,
he does not cause (a) the prosecution of the criminal (People vs. Rosales, G.R. no. 42648) or (b)
knowing that a crime is about to be committed he tolerates its commission (if gift/promise is a
consideration for his conduct: direct bribery)

c.

That the offender acts with malice and deliberate intent to favor the violator of the law.

PREVARICACION: negligence and tolerance in the prosecution of an offense

A public officer engaged in the prosecution of offenders shall maliciously tolerate the commission of crimes or refrain
from prosecuting offenders or violators of the law.
This crime can only be committed by a public officer whose official duty is to prosecute offenders, that is, state
prosecutors. Hence, those officers who are not duty bound to perform these obligations cannot commit this crime in
the strict sense.

There must be a duty on the part of the public officer to prosecute or move for the prosecution of the offender.
Note however, that a fiscal is under no compulsion to file an information based upon a complaint if he is not
convinced that the evidence before him does not warrant filing an action in court

When a policeman tolerates the commission of a crime or otherwise refrains from apprehending the offender, such
peace officer cannot be prosecuted for this crime but they can be prosecuted as:
(1)

An accessory to the crime committed by the principal in accordance with Article 19, paragraph 3; or

(2)

He may become a fence if the crime committed is robbery or theft, in which case he violates the AntiFencing Law; or

(3)

He may be held liable for violating the Anti-Graft and Corrupt Practices Act.

Illustration:
The offender was caught for white slavery. The policeman allowed the offender to go free for some consideration.
The policeman does not violate Article 208 but he becomes an accessory to the crime of white slavery.
But in the crime of theft or robbery, where the policeman shared in the loot and allowed the offender to go free, he
becomes a fence. Therefore, he is considered an offender under the Anti-Fencing Law.
However, in distant provinces or municipalities where there are no municipal attorneys, the local chief of police is the
prosecuting officer. If he is the one who tolerates the violations of laws or otherwise allows offenders to escape, he
can be prosecuted under this article.
This is also true in the case of a barangay chairman. They are supposed to prosecute violators of laws within their
jurisdiction. If they do not do so, they can be prosecuted for this crime.

The crime must be proved first before an officer can be convicted of dereliction of duty

A public officer who harbors, conceals, or assists in the escape of an offender, when it is his duty to prosecute him
is liable as principal in the crime of dereliction of duty in the prosecution of offenses. He is not an accessory

Article not applicable to revenue officers

Relative to this crime under Article 208, consider the crime of qualified bribery. Among the amendments made by
Republic Act No. 7659 on the Revised Penal Code is a new provision which reads as follows:
Article. 211-A. Qualified Bribery If any public officer is entrusted with law
enforcement and he refrains from arresting or prosecuting an offender who has committed a
crime punishable by Reclusion Perpetua and/or death in consideration of any offer, promise, gift,
or present, he shall suffer the penalty for the offense which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he shall suffer the
penalty of death.
Actually the crime is a kind of direct bribery where the bribe, offer, promise, gift or present has a consideration on the
part of the public officer, that is refraining from arresting or prosecuting the offender in consideration for such offer,
promise, gift or present. In a way, this new provision modifies Article 210 of the Revised Penal Code on direct bribery.
However, the crime of qualified bribery may be committed only by public officers entrusted with enforcement
whose official duties authorize then to arrest or prosecute offenders. Apparently, they are peace officers and public
prosecutors since the nonfeasance refers to arresting or prosecuting. But this crime arises only when the offender
whom such public officer refrains from arresting or prosecuting, has committed a crime punishable by reclusion

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
perpetua and/or death. If the crime were punishable by a lower penalty, then such nonfeasance by the public officer
would amount to direct bribery, not qualified bribery.
If the crime was qualified bribery, the dereliction of the duty punished under Article 208 of the Revised Penal Code
should be absorbed because said article punishes the public officer who maliciously refrains from instituting
prosecution for the punishment of violators of the law or shall tolerate the commission of offenses. The dereliction
of duty referred to is necessarily included in the crime of qualified bribery.
On the other hand, if the crime was direct bribery under Article 210 of the Revised Penal Code, the public officer
involved should be prosecuted also for the dereliction of duty, which is a crime under Article 208 of the Revised Penal
Code, because the latter is not absorbed by the crime of direct bribery. This is because in direct bribery, where the
public officer agreed to perform an act constituting a crime in connection with the performance of his official duties,
Article 210 expressly provides that the liabilty thereunder shall be in addition to the penalty corresponding to the
crime agreed upon, if the crime shall have been committed.
Illustration:
A fiscal, for a sum of money, refrains from prosecuting a person charged before him. If the penalty for the crime
involved is reclusion perpetua, the fiscal commits qualified bribery. If the crime is punishable by a penalty lower than
reclusion perpetua, the crime is direct bribery.
In the latter situation, three crimes are committed: direct bribery and dereliction of duty on the part of the fiscal;
and corruption of a public officer by the giver.
Article 209
BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR
(NOT NECESSARILY A PUBLIC OFFICER ALTHOUGH ALL LAWYERS ARE OFFICERS OF THE COURT)

ACTS PUNISHED:
a. Causing damage to client (prejudice is essential) either
1. by any malicious breach of professional duty, or
2.

by inexcusable negligence or ignorance.

b.

Revealing any of the secrets of his client learned by him in his professional capacity (damage not
necessary)

c.

Undertaking the defense of the opposing party of the 1 st client and/or having received confidential
information from the latter and without the latters consent (damage not necessary)

Note: When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there
must be damage to his client.
Under the rules on evidence, communications made with prospective clients to a lawyer with a view to engaging his
professional services are already privileged even though the client-lawyer relationship did not eventually materialize
because the client cannot afford the fee being asked by the lawyer. The lawyer and his secretary or clerk cannot be
examined thereon.
That this communication with a prospective client is considered privileged, implies that the same is confidential.
Therefore, if the lawyer would reveal the same or otherwise accept a case from the adverse party, he would already be
violating Article 209. Mere malicious breach without damage is not violative of Article 209; at most he will be liable
administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility.
Illustration:
B, who is involved in the crime of seduction wanted A, an attorney at law, to handle his case. A received confidential
information from B. However, B cannot pay the professional fee of A. C, the offended party, came to A also and the
same was accepted.
A did not commit the crime under Article 209, although the lawyers act may be considered unethical. The clientlawyer relationship between A and B was not yet established. Therefore, there is no trust to violate because B has not
yet actually engaged the services of the lawyer A. A is not bound to B. However, if A would reveal the confidential
matter learned by him from B, then Article 209 is violated because it is enough that such confidential matters were
communicated to him in his professional capacity, or it was made to him with a view to engaging his professional
services.
Here, matters that are considered confidential must have been said to the lawyer with the view of engaging his
services. Otherwise, the communication shall not be considered privileged and no trust is violated.
Illustration:
A went to B, a lawyer/notary public, to have a document notarized. A narrated to B the detail of the criminal case.
If B will disclose what was narrated to him there is no betrayal of trust since B is acting as a notary public and not as a
counsel. The lawyer must have learned the confidential matter in his professional capacity.
Several acts which would make a lawyer criminally liable:
(1)

Maliciously causing damage to his client through a breach of his professional duty. The breach of professional
duty must be malicious. If it is just incidental, it would not give rise to criminal liability, although it may be
the subject of administrative discipline;

(2)

Through gross ignorance, causing damage to the client;

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
(3)

Inexcusable negligence;

(4)

Revelation of secrets learned in his professional capacity;

(5)

Undertaking the defense of the opposite party in a case without the consent of the first client whose defense
has already been undertaken.

Note that only numbers 1, 2 and 3 must approximate malice.


A lawyer who had already undertaken the case of a client cannot later on shift to the opposing party. This cannot be
done.
Under the circumstances, it is necessary that the confidential matters or information was confided to the lawyer in
the latters professional capacity.
It is not the duty of the lawyer to give advice on the commission of a future crime. It is, therefore, not privileged in
character. The lawyer is not bound by the mandate of privilege communication if he reports such commission of a
future crime. It is only confidential information relating to crimes already committed that are covered by the crime of
betrayal of trust if the lawyer should undertake the case of opposing party or otherwise divulge confidential
information of a client.
Under the law on evidence on privileged communication, it is not only the lawyer who is protected by the matter of
privilege but also the office staff like the secretary.
The nominal liability under this article may be constituted either from breach of professional duties in the handling of
the case or it may arise out of the confidential relation between the lawyer and the client.
Breach of professional duty
Tardiness in the prosecution of the case for which reason the case was dismissed for being non-prosecuted; or tardiness
on the part of the defense counsel leading to declaration of default and adverse judgment.
Professional duties Lawyer must appear on time. But the client must have suffered damage due to the breach of
professional duty. Otherwise, the lawyer cannot be held liable.
If the prosecutor was tardy and the case was dismissed as non-prosecuted, but he filed a motion for reconsideration
which was granted, and the case was continued, the lawyer is not liable, because the client did not suffer damage.
If lawyer was neglectful in filing an answer, and his client declared in default, and there was an adverse judgment, the
client suffered damages. The lawyer is liable.
Breach of confidential relation
Revealing information obtained or taking advantage thereof by accepting the engagement with the adverse party.
There is no need to prove that the client suffered damages. The mere breach of confidential relation is punishable.
In a conjugal case, if the lawyer disclosed the confidential information to other people, he would be criminally liable
even though the client did not suffer any damage.
The client who was suing his wife disclosed that he also committed acts of unfaithfulness. The lawyer talked about this
to a friend. He is, thus, liable.
Article 210
DIRECT BRIBERY

ELEMENTS:
a. That the offender be a public officer within the scope of Art 203
b.

That the offender accepts an offer or promise or receives a gift or present by himself or through
another

c.

That such offer or promise be accepted or gift/present received by the public officer ( mere
agreement consummates the crime)

d.

1.

with a view to committing some crime (delivery of consideration is not necessary) or

2.

in consideration of an execution of an act which does not constitute a crime, but the act must
be unjust (delivery of consideration is necessary), or

3.

to refrain from doing something which is his official duty to do

That the act which the offender agrees to perform or which he executes be connected with the
performance of his official duties

Bribery refers to the act of the receiver and the act of the giver is corruption of public official.

For purposes of this article, temporary performance of public functions is sufficient to constitute a person a
public officer.

A private person may commit this crime only in the case in which custody of prisoners is entrusted to him

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

Applicable also to assessors, arbitrators, appraisal and claim commissioners, experts or any other person
performing public duties

Cannot be frustrated, only attempted or consummated.

Direct bribery may be committed only in the attempted and consummated stages because, in frustrated felony, the
offender must have performed all the acts of execution which would produce the felony as a consequence . In direct
bribery, it is possible only if the corruptor concurs with the offender. Once there is concurrence, the direct bribery is
already consummated. In short, the offender could not have performed all the acts of execution to produce the
felony without consummating the same.
Actually, you cannot have a giver unless there is one who is willing to receive and there cannot be a receiver unless
there is one willing to give. So this crime requires two to commit. It cannot be said, therefore, that one has
performed all the acts of execution which would produce the felony as a consequence but for reasons independent of
the will, the crime was not committed.
It is now settled, therefore, that the crime of bribery and corruption of public officials cannot be committed in the
frustrated stage because this requires two to commit and that means a meeting of the minds.
Illustrations:
(1)

If the public official accepted the corrupt consideration and turned it over to his superior as evidence of the
corruption, the offense is attempted corruption only and not frustrated. The official did not agree to be
corrupted.
If the public officer did not report the same to his superior and actually accepted it, he allowed himself to
be corrupted. The corruptor becomes liable for consummated corruption of public official. The public
officer also becomes equally liable for consummated bribery.

(2)

If a public official demanded something from a taxpayer who pretended to agree and use marked money
with the knowledge of the police, the crime of the public official is attempted bribery. The reason is that
because the giver has no intention to corrupt her and therefore, he could not perform all the acts of
execution.
Be sure that what is involved is a crime of bribery, not extortion. If it were extortion, the crime is not
bribery, but robbery. The one who yielded to the demand does not commit corruption of a public officer
because it was involuntary.

Bribery exists when the gift is:


a. voluntarily offered by a private person
b.

solicited by the public officer and voluntarily delivered by the private person

c.

solicited by the public officer but the private person delivers it out of fear of the consequences should the
public officer perform his functions (here the crime by giver is not corruption of public officials due to
involuntariness)

Actual receipt of the gift is not only if acts constitutes a crime necessary. An accepted offer or promise of a gift
is sufficient. However, if the offer is not accepted, only the person offering the gift is liable for attempted
corruption of a public officer

The gift must have a value or capable of pecuniary estimation. It could be in the form of money, property or
services

If the act required of the public officer amounts to a crime and he commits it, he shall be liable for the penalty
corresponding to the crime in addition to the penalty for bribery

In direct bribery, consider whether the official act, which the public officer agreed to do, is a crime or not.
If it will amount to a crime, it is not necessary that the corruptor should deliver the consideration or the doing of
the act. The moment there is a meeting of the minds, even without the delivery of the consideration, even without
the public officer performing the act amounting to a crime, bribery is already committed on the part of the public
officer. Corruption is already committed on the part of the supposed giver. The reason is that the agreement is a
conspiracy involving the duty of a public officer. The mere agreement is a felony already.
If the public officer commits the act which constitutes the crime, he, as well as the corruptor shall be liable also for
that other crime.
Illustrations:
(1)

If the corruptor offers a consideration to a custodian of a public record to remove certain files, the mere
agreement, without delivery of the consideration, brings about the crime of direct bribery and corruption
of public official.
If the records were actually removed, both the public officer and the corruptor will in addition to the two
felonies above, will also be liable for the crime committed, which is infidelity in the custody of the public
records for which they shall be liable as principals; one as principal by inducement, the other as principal by
direct participation.

(2)

A party litigant approached the courts stenographer and proposed the idea of altering the transcript of
stenographic notes. The court stenographer agreed and he demanded P 2,000.00.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Unknown to them, there were law enforcers who already had a tip that the court stenographer had been
doing this before. So they were waiting for the chance to entrap him. They were apprehended and they
said they have not done anything yet.
Under Article 210, the mere agreement to commit the act, which amounts to a crime, is already bribery.
That stenographer becomes liable already for consummated crime of bribery and the party who agreed to
give that money is already liable for consummated corruption, even though not a single centavo is delivered
yet and even though the stenographer had not yet made the alterations.
If he changed the transcript, another crime is committed: falsification.
The same criterion will apply with respect to a public officer who agrees to refrain from performing his official
duties. If the refraining would give rise to a crime, such as refraining to prosecute an offender, the mere agreement to
do so will consummate the bribery and the corruption, even if no money was delivered to him. If the refraining is not a
crime, it would only amount to bribery if the consideration be delivered to him.
If it is not a crime, the consideration must be delivered by the corruptor before a public officer can be prosecuted
for bribery. Mere agreement, is not enough to constitute the crime because the act to be done in the first place is
legitimate or in the performance of the official duties of the public official.
Unless the public officer receives the consideration for doing his official duty, there is no bribery. It is necessary that
there must be delivery of monetary consideration. This is so because in the second situation, the public officer
actually performed what he is supposed to perform. It is just that he would not perform what he is required by law to
perform without an added consideration from the public which gives rise to the crime.
The idea of the law is that he is being paid salary for being there. He is not supposed to demand additional
compensation from the public before performing his public service. The prohibition will apply only when the money is
delivered to him, or if he performs what he is supposed to perform in anticipation of being paid the money.
Here, the bribery will only arise when there is already the acceptance of the consideration because the act to be done
is not a crime. So, without the acceptance, the crime is not committed.

The third type of bribery and prevaricacion (art 208) are similar offenses, both consisting of omissions to do an act
required to be performed. In direct bribery however, a gift or promise is given in consideration of the omission.
This is not necessary in prevaricacion

Distinction between direct bribery and indirect bribery


Bribery is direct when a public officer is called upon to perform or refrain from performing an official act in exchange
for the gift, present or consideration given to him.
If he simply accepts a gift or present given to him by reason of his public position, the crime is indirect bribery. Bear
in mind that the gift is given "by reason of his office", not "in consideration" thereof. So never use the term
consideration. The public officer in Indirect bribery is not to perform any official act.
Note however that what may begin as an indirect bribery may actually ripen into direct bribery.
Illustration:
Without any understanding with the public officer, a taxi operator gave an expensive suiting material to a BLT
registrar. Upon receipt by the BLT registrar of his valuable suiting material, he asked who the giver was. He found
out that he is a taxi operator. As far as the giver is concerned, he is giving this by reason of the office or position of
the public officer involved. It is just indirect bribery
If the BLT registrar calls up his subordinates and said to take care of the taxis of the taxi operator so much so that the
registration of the taxis is facilitated ahead of the others, what originally would have been indirect bribery becomes
direct bribery.
Bribery (210)
When the victim has committed a crime and gives
money/gift to avoid arrest or prosecution.

Robbery (294)
When the victim did not commit a crime and he is intimidated
with arrest and/or prosecution to deprive him of his personal
property.
Victim parts with his money or property voluntarily.
Victim is deprived of his money or property by force or
intimidation.
Robbery should be distinguished from Bribery where a law enforcer, say a policeman, extorts money from a
person, employing intimidation and threatening to arrest the latter if he will not come across with money may be
guilty of Robbery (Article 294, par. 5) or Bribery (Article 210). If the victim actually committed a crime, and the
policeman demanded money so he will not be arrested, the crime is Bribery. But if no crime has been committed and
the policeman is falsely charging him of having committed one, threatening to arrest him if he will not come across
with some consideration, the crime is Robbery.
Article 211
INDIRECT BRIBERY

ELEMENTS:
a. That the offender is a public officer.
b.

That he accepts gifts.

c.

That the said gifts are offered to him by reason of his office.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

The gift is given in anticipation of future favor from the public officer
Indirect bribery, the public officer receives or accepts gifts, money or anything of value by reason of his office. If there
is only a promise of a gift or money, no crime is committed because of the language of the law which uses the phrase
shall accept gifts.

There must be clear intention on the part of the public officer to take the gift offered and consider the property
as his own for that moment. Mere physical receipt unaccompanied by any other sign, circumstance or act to show
such acceptance is not sufficient to convict the officer

The Supreme Court has laid down the rule that for indirect bribery to be committed, the public officer must have
performed an act of appropriating of the gift for himself, his family or employees. It is the act of appropriating that
signifies acceptance. Merely delivering the gift to the public officer does not bring about the crime. Otherwise it
would be very easy to remove a public officer: just deliver a gift to him.

There is no attempted or frustrated indirect bribery

The principal distinction between direct and indirect bribery is that in the former, the officer agrees to perform
or refrain from doing an act in consideration of the gift or promise. In the latter case, it is not necessary that the
officer do any act. It is sufficient that he accepts the gift offered by reason of his office

Public officers receiving gifts and private persons giving gifts on any occasion, including Christmas are liable under
PD 46.

The criminal penalty or imprisonment is distinct from the administrative penalty of suspension from the service

Article 211-A
QUALIFIED BRIBERY

ELEMENTS:
a. Public officer entrusted with law enforcement
b.

Refrains from arresting/prosecuting offender for crime punishable by reclusion perpetua and/or
death
(if lower penalty than stated above, the crime is direct bribery)

c. In consideration of any offer, promise or gift


Note that the penalty is DEATH if the public officer is the one who asks or demands such present.
He need not receive the gift or present because a mere offer or promise is sufficient.
Article 212
CORRUPTION OF PUBLIC OFFICIALS

ELEMENTS:
a. That the offender makes offers or promises or gives gifts or present to a public officer.
b.

That the offers or promises are made or the gifts or presents given to a public officer, under
circumstances that will make the public officer liable for direct bribery or indirect bribery

The offender is the giver of the gift or the offeror of the promise. The act may or may not be accomplished

Presidential Decree No. 46


Presidential Decree No. 46 prohibits giving and acceptance of gifts by a public officer or to a public officer, even during
anniversary, or when there is an occasion like Christmas, New Year, or any gift-giving anniversary. The Presidential
Decree punishes both receiver and giver.
The prohibition giving and receiving gifts given by reason of official position, regardless of whether or not the same is
for past or future favors.
The giving of parties by reason of the promotion of a public official is considered a crime even though it may call for a
celebration. The giving of a party is not limited to the public officer only but also to any member of his family.
Presidential Decree No. 749
The decree grants immunity from prosecution to a private person or public officer who shall voluntarily give
information and testify in a case of bribery or in a case involving a violation of the Anti-graft and Corrupt Practices
Act.
It provides immunity to the bribe-giver provided he does two things:
(1)

He voluntarily discloses the transaction he had with the public officer constituting direct or indirect bribery,
or any other corrupt transaction;

(2)

He must willingly testify against the public officer involved in the case to be filed against the latter.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Before the bribe-giver may be dropped from the information, he has to be charged first with the receiver. Before
trial, prosecutor may move for dropping bribe-giver from information and be granted immunity. But first, five
conditions have to be met:
(1)

Information must refer to consummated bribery;

(2)

Information is necessary for the proper conviction of the public officer involved;

(3)

That the information or testimony to be given is not yet in the possession of the government or known to the
government;

(4)

That the information can be corroborated in its material points;

(5)

That the informant has not been convicted previously for any crime involving moral turpitude.

These conditions are analogous to the conditions under the State Witness Rule under Criminal Procedure.
The immunity granted the bribe-giver is limited only to the illegal transaction where the informant gave voluntarily
the testimony. If there were other transactions where the informant also participated, he is not immune from
prosecution. The immunity in one transaction does not extend to other transactions.
The immunity attaches only if the information given turns out to be true and correct. If the same is false, the public
officer may even file criminal and civil actions against the informant for perjury and the immunity under the decree
will not protect him.
Republic Act No. 7080 (Plunder)
Plunder is a crime defined and penalized under Republic Act No. 7080, which became effective in 1991. This crime
somehow modified certain crimes in the Revised Penal Code insofar as the overt acts by which a public officer amasses,
acquires, or accumulates ill-gotten wealth are felonies under the Revised Penal Code like bribery (Articles 210, 211,
211-A), fraud against the public treasury [Article 213], other frauds (Article 214), malversation (Article 217), when the
ill-gotten wealth amounts to a total value of P50,000,000.00. The amount was reduced from P75,000,000.00 by
Republic Act No. 7659 and the penalty was changed from life imprisonment to reclusion perpetua to death.
Short of the amount, plunder does not arise. Any amount less than P50,000,000.00 is a violation of the Revised Penal
Code or the Anti-Graft and Corrupt Practices Act.
Under the law on plunder, the prescriptive period is 20 years commencing from the time of the last overt act.
Plunder is committed through a combination or series of overt acts:
(1)

Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;

(2)

By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in connection with any government contract or project by
reason of the office or position of the public officer;

(3)

By illegal or fraudulent conveyance or disposition of asset belonging to the national government or any of its
subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their
subsidiaries;

(4)

By obtaining, receiving, or accepting directly or indirectly any shares of stock, equity or any other form of
interest or participation including the promise of future employment in any business or undertaking;

(5)

By establishing agricultural, industrial, or commercial monopolies or other combinations and/or


implementations of decrees and orders intended to benefit particular persons or special interests; or

(6)

By taking undue advantage of official position, authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people, and the
Republic of the Philippines.

While the crime appears to be malum prohibitum, Republic Act No. 7080 provides that in the imposition of
penalties, the degree of participation and the attendance of mitigating and aggravating circumstances shall be
considered by the court.

ANTI-GRAFT AND CORRUPT PRACTICES ACT


RA 3019

a.

Persons Liable:
Any public officer who shall perform any of the following acts:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
1.

Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules
and regulations duly promulgated by competent authority or an offense in connection with the official duties
of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or
offense.

2.

Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit for himself or
for any other person in connection with any contract or transaction between the government and any other
party wherein the public officer in his official capacity has to intervene under the law.

3.

Directly, or indirectly requesting or receiving any gift, present, or other pecuniary or material benefit, for
himself or for another, from any person for whom the public officer, in any manner of capacity, has secured
or obtained, or will secure or obtain, any Government permit or license, in consideration for the held given
or to be given.

4.

Accepting or having any member of his family accept employment in a private enterprise which has pending
official business with him during the pendency thereof or within one year after its termination.

5.

Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage, or preference in the discharge of his official, administrative or judicial
function through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or government corporations charged with the grant of licenses or
permits or other concessions.

6.

Neglecting or refusing, after due demand or request, without sufficient justification, to act within a
reasonable time on any matter pending before him for the purpose of obtaining directly or indirectly, from
any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of
favoring his own interest of giving undue advantage in favor of or discriminating against any other interested
party.

7.

Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.

8.

Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or take part in his official capacity, or in which he is prohibited by the
constitution or by any law from having any interest.

9.

Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction
or act requiring the approval of a board, panel, or group of which he is a member, and which exercises
discretion in such approval, even if he votes against the same or does not participate in the action of the
board, committee, panel or group.

10. Knowingly approving or granting any license, permit, privilege, or benefit in favor of any person not qualified
for or not legally entitled to such license, permit, privilege, or advantage, or of a mere representative or
dummy of one who is not so qualified or entitled.
11. Divulging valuable information of a confidential character, acquired by his office or by him on account of his
official position to unauthorized persons, or releasing such information in advance of its authorized release
date.
b.

Any person having family or close personal relation with any public official who shall capitalize or exploit or take
advantage of such family or close personal relation by directly or indirectly requesting or receiving any present,
gift, or material, or pecuniary advantage from any person having some business, transaction, application, request,
or contact with the government in which such public official has to intervene (Sec. 4)

c.

Any person who shall knowingly induce or cause any public official to commit any of the offenses under (A). (Sec.
4)

d.

Spouse or any relative, by consanguinity or affinity, within the 3 rd civil degree, of the president of the Philippines,
the vice-president, the president of the Senate, or speaker of the house of Representatives, who shall intervene,
directly or indirectly, in any business transaction, contract or application with the govt (Sec. 5).
This prohibition shall not apply to:
1. Any person who, prior to the assumption of office of any of the above officials to whom he is related,
has been already dealing with the govt along the same line of business;
2.

Any transaction, contract or application already existing or pending at the time of such assumption of
public office;

3.

Any application filed by him, the approval of which is not discretionary on the part of the official(s)
concerned but depends upon compliance with requisites provided by law, or rules or regulations issued
pursuant to law;

4.

Any act lawfully performed an official capacity or in the exercise of a profession.

e.

Any member of congress, during the term for which he has been elected, who shall acquire or receive
any personal pecuniary interest in any specific business enterprise which shall be directly and
particularly favored or benefited by any law or resolution authored by him previously approved or
adopted by Congress during his term.

f.

Any public officer who shall fail to file a true, detailed and sworn statement of assets and liabilities
within 30 days after assuming office and thereafter on or before the 15 th day of April following the close
of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or
separation from office (Sec. 7).

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III.

Prima Facie Evidence of and Dismissal due to unexplained Wealth (Sec. 8)

If a public official has been found to have acquired during his incumbency, whether in his name or in the name of
other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other
lawful income.

Properties in the name of the spouse and dependents of such public official may be taken into consideration,
when their acquisition through legitimate means cannot be satisfactorily shown.

Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or
any of their dependents including but not limited to activities in any club or association or any ostentatious
display of wealth including frequent travel abroad of a non-official character by any public official when such
activities entail expenses evidently out of proportion to legitimate income.

III. Competent court: All prosecutions under this Act shall be within the original jurisdiction of the
Sandiganbayan (Sec. 10).
In case none of the principal accused are occupying positions corresponding to salary grade 27 or higher; PNP officers
occupying the rank of superintendent or higher of their equivalent, exclusive jurisdiction over the case shall be vested
in the proper Regional Trial Court, Metropolitan Trial Court and Municipal Circuit Trial Court as the case may be. The
decision of the court in these cases shall be appealable to the Sandiganbayan which exercises exclusive appellate
jurisdiction over them.
IV. Prescription of offenses: all offenses punishable under this Act shall prescribe in 15 years (Sec. 11).
V. Exceptions: Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of
gratitude of friendship according to local customs or usage, shall be excepted from the provisions of this act (Sec. 14).
Once the case is filed with the Sandiganbayan, by express provision of the law, it becomes incumbent upon the court to
place under preventive suspension the public officer who stands accused before it. However, before the order of
suspension is issued, it is necessary that a pre-suspension hearing be held by the court wherein the accused is afforded
the opportunity to challenge the validity of the information filed against him. Such right of the accused to challenge
the validity of the information covers (a) the right to challenge the sufficiency of the recitals of the information vis-vis the essential elements of the offense as defined by substantive law; (b) the right to challenge the validity of the
criminal proceedings leading to the filing of the information, i.e., that he has not been afforded the right of due
preliminary investigation, or that the acts for which he stands charged do not constitute a violation of the provisions of
R.A. No. 3019, which would warrant his mandatory suspension from office under Section 13 of this Act; and (c) the
right to raise the issue that the information can be quashed under any of the grounds provided in Section 2, Rule 117 of
the Rules of Court (People vs. Albano, 163 SCRA 511).
Once the information is found to be sufficient in form and substance, the court must issue the suspension order as a
matter of course and there are no ifs and buts about it (Bayot vs. Sandiganbayan, et al., 128 SCRA 383).
Preventive suspension is resorted to in order to prevent the accused from using his office to intimidate witnesses or
frustrate his prosecution or continue committing malfeasance in office because the presumption is that unless the
accused is suspended, he may frustrate his prosecution to commit further acts of malfeasance or both (Bayot vs.
Sandiganbayan, et al., supra).
When the administrative case against the officer or employee under preventive suspension is not finally disposed of
by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is
not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the
delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay
shall not be counted in computing the period of suspension herein provided.(Segovia vs. Sandiganbayan)
ORTEGA NOTES:
The mere act of a public officer demanding an amount from a taxpayer to whom he is to render public service does not
amount to bribery, but will amount to a violation of the Anti-graft and Corrupt Practices Act.
Illustration:
A court secretary received P500 .00 from a litigant to set a motion for an early hearing. This is direct bribery even if
the act to be performed is within his official duty so long as he received a consideration therefor.
If the secretary persuaded the judge to make a favorable resolution, even if the judge did not do so, this constitutes a
violation of Anti-Graft and Corrupt Practices Act, Sub-Section A.
Under the Anti-Graft and Corrupt Practices Act, particularly Section 3, there are several acts defined as corrupt
practices. Some of them are mere repetitions of the act already penalized under the Revised Penal Code, like
prohibited transactions under Article 215 and 216. In such a case, the act or omission remains to be mala in se.
But there are acts penalized under the Anti-Graft and Corrupt Practices Act which are not penalized under the Revised
Penal Code. Those acts may be considered as mala prohibita. Therefore, good faith is not a defense.
Illustration:
CATCH ALL PROVISION
Section 3 (e) of the Anti-Graft and Corrupt Practices Act causing undue injury to the government or a private party by
giving unwarranted benefit to the party whom does not deserve the same.
In this case, good faith is not a defense because it is in the nature of a malum prohibitum. Criminal intent on the part
of the offender is not required. It is enough that he performed the prohibited act voluntarily. Even though the

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prohibited act may have benefited the government. The crime is still committed because the law is not after the
effect of the act as long as the act is prohibited.
Section 3 (g) of the Anti-Graft and Corrupt Practices Act where a public officer entered into a contract for the
government which is manifestly disadvantageous to the government even if he did not profit from the transaction, a
violation of the Anti-Graft and Corrupt Practices Act is committed.
If a public officer, with his office and a private enterprise had a transaction and he allows a relative or member of his
family to accept employment in that enterprise, good faith is not a defense because it is a malum prohibitum. It is
enough that that the act was performed.
Where the public officer is a member of the board, panel or group who is to act on an application of a contract and the
act involved one of discretion, any public officer who is a member of that board, panel or group, even though he voted
against the approval of the application, as long as he has an interest in that business enterprise whose application is
pending before that board, panel or group, the public officer concerned shall be liable for violation of the Anti-Graft
and Corrupt Practices Act. His only course of action to avoid prosecution under the Anti-graft and Corrupt Practices Act
is to sell his interest in the enterprise which has filed an application before that board, panel or group where he is a
member. Or otherwise, he should resign from his public position.
Illustration:
Sen. Dominador Aytono had an interest in the Iligan Steel Mills, which at that time was being subject of an investigation
by the Senate Committee of which he was a chairman. He was threatened with prosecution under Republic Act No.
3019 so he was compelled to sell all his interest in that steel mill; there is no defense. Because the law says so, even if
he voted against it, he commits a violation thereof.
These cases are filed with the Ombudsman and not with the regular prosecutors office. Jurisdiction is exclusively with
the Sandiganbayan. The accused public officer must be suspended when the case is already filed with the
Sandiganbayan.
Under the Anti-Graft and Corrupt Practices Act, the public officer who is accused should not be automatically
suspended upon the filing of the information in court. It is the court which will order the suspension of the public
officer and not the superior of that public officer. As long as the court has not ordered the suspension of the public
officer involved, the superior of that public officer is not authorized to order the suspension simply because of the
violation of the Anti-Graft and Corrupt Practices Act. The court will not order the suspension of the public officer
without first passing upon the validity of the information filed in court. Without a hearing, the suspension would be
null and void for being violative of due process.
Illustration:
A public officer was assigned to direct traffic in a very busy corner. While there, he caught a thief in the act of lifting
the wallet of a pedestrian. As he could not leave his post, he summoned a civilian to deliver the thief to the precinct.
The civilian agreed so he left with the thief. When they were beyond the view of the policeman, the civilian allowed
the thief to go home. What would be the liability of the public officer?
The liability of the traffic policeman would be merely administrative. The civilian has no liability at all.
Firstly, the offender is not yet a prisoner so there is no accountability yet. The term prisoner refers to one who is
already booked and incarcerated no matter how short the time may be.
The policeman could not be said as having assisted the escape of the offender because as the problem says, he is
assigned to direct traffic in a busy corner street. So he cannot be considered as falling under the third 3rd paragraph of
Article 19 that would constitute his as an accessory.
The same is true with the civilian because the crime committed by the offender, which is snatching or a kind of robbery
or theft as the case may be, is not one of those crimes mentioned under the third paragraph of Article 19 of the
Revised Penal Code.
Where the public officer is still incumbent, the prosecution shall be with the Ombudsman.
Where the respondent is separated from service and the period has not yet prescribed, the information shall be filed in
any prosecutions office in the city where the respondent resides. The prosecution shall file the case in the Regional
Trial Court unless the violation carries a penalty higher than prision correccional, in which case the Sandiganbayan has
jurisdiction.
The fact that the government benefited out of the prohibited act is no defense at all, the violation being mala
prohibita.
Section 3 (f) of the Anti-Graft and Corrupt Practices Act where the public officer neglects or refuses to act on a
matter pending before him for the purpose of obtaining any pecuniary or material benefit or advantage in favor of or
discriminating against another interested party.
The law itself additionally requires that the accuseds dereliction, besides being without justification, must be for the
purpose of obtaining from any person interested in the matter some pecuniary or material benefit or for the purpose of
favoring any interested party, or discriminating against another interested party. This element is indispensable.
In other words, the neglect or refusal to act must motivated by gain or benefit, or purposely to favor the other
interested party as held in Coronado v. SB, decided on August 18, 1993.
Republic Act No. 1379 (Forfeiture of Ill-gotten Wealth)
Correlate with RA 1379 -- properly under Remedial Law. This provides the procedure for forfeiture of the ill-gotten
wealth in violation of the Anti-Graft and Corrupt Practices Act. The proceedings are civil and not criminal in nature.

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Any taxpayer having knowledge that a public officer has amassed wealth out of proportion to this legitimate income
may file a complaint with the prosecutors office of the place where the public officer resides or holds office. The
prosecutor conducts a preliminary investigation just like in a criminal case and he will forward his findings to the office
of the Solicitor General. The Solicitor General will determine whether there is reasonable ground to believe that the
respondent has accumulated an unexplained wealth.
If the Solicitor General finds probable cause, he would file a petition requesting the court to issue a writ commanding
the respondent to show cause why the ill-gotten wealth described in the petition should not be forfeited in favor of the
government. This is covered by the Rules on Civil Procedure. The respondent is given 15 days to answer the petition.
Thereafter trial would proceed. Judgment is rendered and appeal is just like in a civil case. Remember that this is not
a criminal proceeding. The basic difference is that the preliminary investigation is conducted by the prosecutor.

FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS


Article 213
FRAUDS AGAINST PUBLIC TREASURY

ELEMENTS: (par. 1)
a. That the offender be a public officer.
b.

That he should have taken advantage of his office, that is, he intervened in the transaction in his
official capacity.

c.

That he entered into an agreement with any interested party or speculator or made use of any
other scheme with regard to (a) furnishing supplies (b) the making of contracts, or (c) the
adjustment or settlement of account relating to a public property or funds.

d.

That the accused had intent to defraud the government.

Notes:
a.
b.

The public officer must act in his official capacity


The felony is consummated by merely entering into an agreement with any interested party or
speculator or by merely making use of any scheme to defraud the Government

The essence of this crime is making the government pay for something not received or making it pay more than what
is due. It is also committed by refunding more than the amount which should properly be refunded . This occurs
usually in cases where a public officer whose official duty is to procure supplies for the government or enter into
contract for government transactions, connives with the said supplier with the intention to defraud the government.
Also when certain supplies for the government are purchased for the high price but its quantity or quality is low.
Not all frauds will constitute this crime. There must be no fixed allocation or amount on the matter acted upon by the
public officer.
The allocation or outlay was made the basis of fraudulent quotations made by the public officer involved.
For example, there was a need to put some additional lighting along a street and no one knows how much it will cost.
An officer was asked to canvass the cost but he connived with the seller of light bulbs, pricing each light bulb at
P550.00 instead of the actual price of P500.00. This is a case of fraud against public treasury.
If there is a fixed outlay of P20,000.00 for the lighting apparatus needed and the public officer connived with the seller
so that although allocation was made a lesser number was asked to be delivered, or of an inferior quality, or
secondhand. In this case there is no fraud against the public treasury because there is a fixed allocation. The fraud
is in the implementation of procurement. That would constitute the crime of other fraud in Article 214, which is in
the nature of swindling or estafa.
Be sure to determine whether fraud is against public treasury or one under Article 214.
ILLEGAL EXACTIONS (par 2)

ELEMENTS:
a. The offender is a public officer entrusted with the collection of taxes, licenses, fees and other
imposts.
b.

He is guilty of any of the following acts or omissions:


1.

demanding, directly or indirectly the payment of sums different from or larger than those
authorized by law, or

2.

failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by
him officially, or

3.

Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or


objects of a nature different from that provided by law.

Notes:

This can only be committed principally by a public officer whose official duty is to collect taxes, license fees, import
duties and other dues payable to the government.

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Not any public officer can commit this crime. Otherwise, it is estafa. Fixers cannot commit this crime unless he
conspires with the public officer authorized to make the collection.
The essence of the crime is not misappropriation of any of the amounts but the improper making of the collection
which would prejudice the accounting of collected amounts by the government.
a.

Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the
improper collection (damage to govt is not required)

On the first form of illegal exaction


In this form, mere demand will consummate the crime, even if the taxpayer shall refuse to come across with the
amount being demanded. That will not affect the consummation of the crime.
In the demand, it is not necessary that the amount being demanded is bigger than what is payable to the government.
The amount being demanded maybe less than the amount due the government.
b.

If sums are received without demanding the same, a felony under this article is not committed.
However, if the sum is given as a sort of gift or gratification, the crime is indirect bribery

c.

When there is deceit in demanding larger fees, the crime committed is estafa

d.

May be complexed with malversation

Note that this is often committed with malversation or estafa because when a public officer shall demand an amount
different from what the law provides, it can be expected that such public officer will not turn over his collection to the
government.
Illustrations:
(1)

A taxpayer goes to the local municipal treasurer to pay real estate taxes on his land. Actually, what is due
the government is P400.00 only but the municipal treasurer demanded P500.00. By that demand alone, the
crime of illegal exaction is already committed even though the taxpayer does not pay the P500.00.

(2)

Suppose the taxpayer came across with P500.00. But the municipal treasurer, thinking that he would
abstract the P100.00, issued a receipt for only P400.00. The taxpayer would naturally ask the municipal
treasurer why the receipt was only for P400.00. The treasurer answered that the P100.00 is supposed to be
for documentary stamps. The taxpayer left.
He has a receipt for P400.00. The municipal treasurer turned over to the government coffers P400.00
because that is due the government and pocketed the P100.00.
The mere fact that there was a demand for an amount different from what is due the government, the public
officer already committed the crime of illegal exaction.
On the P100.00 which the public officer pocketed, will it be malversation or estafa?
In the example given, the public officer did not include in the official receipt the P100.00 and, therefore, it
did not become part of the public funds. It remained to be private. It is the taxpayer who has been
defrauded of his P100.00 because he can never claim a refund from the government for excess payment since
the receipt issued to him was only P400.00 which is due the government. As far as the P100.00 is concerned,
the crime committed is estafa.

(3)

A taxpayer pays his taxes. What is due the government is P400.00 and the public officer issues a receipt for
P500.00 upon payment of the taxpayer of said amount demanded by the public officer involved. But he
altered the duplicate to reflect only P400.00 and he extracted the difference of P100.00.
In this case, the entire P500.00 was covered by an official receipt. That act of covering the whole amount
received from the taxpayer in an official receipt will have the characteristics of becoming a part of the
public funds. The crimes committed, therefore, are the following:
(a)

Illegal exaction for collecting more than he is authorized to collect. The mere act of demanding
is enough to constitute this crime.

(b)

Falsification because there was an alteration of official document which is the duplicate of the
official receipt to show an amount less than the actual amount collected.

(c)

Malversation because of his act of misappropriating the P100.00 excess which was covered by an
official receipt already, even though not payable to the government. The entire P500.00 was
covered by the receipt, therefore, the whole amount became public funds. So when he
appropriated the P100 for his own benefit, he was not extracting private funds anymore but public
funds.

Should the falsification be complexed with the malversation?


As far as the crime of illegal exaction is concerned, it will be the subject of separate accusation because
there, the mere demand regardless of whether the taxpayer will pay or not, will already consummate the
crime of illegal exaction. It is the breach of trust by a public officer entrusted to make the collection which
is penalized under such article. The falsification or alteration made on the duplicate can not be said as a
means to commit malversation. At most, the duplicate was altered in order to conceal the malversation. So
it cannot be complexed with the malversation.

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It cannot also be said that the falsification is a necessary means to commit the malversation because the
public officer can misappropriate the P100.00 without any falsification. All that he has to do is to get the
excess of P100.00 and misappropriate it. So the falsification is a separate accusation.
However, illegal exaction may be complexed with malversation because illegal exaction is a necessary means
to be able to collect the P100.00 excess which was malversed.
In this crime, pay attention to whether the offender is the one charged with the collection of the tax, license
or impost subject of the misappropriation. If he is not the one authorized by disposition to do the
collection, the crime of illegal exaction is not committed.
If it did not give rise to the crime of illegal exaction, the funds collected may not have become part of the
public funds. If it had not become part of the public funds, or had not become impressed with being part of
the public funds, it cannot be the subject of malversation. It will give rise to estafa or theft as the case
may be.
(3)

The Municipal Treasurer demanded P500.00 when only P400.00 was due. He issued the receipt at P400.00
and explained to taxpayer that the P100 was for documentary stamps. The Municipal Treasurer placed the
entire P500.00 in the vault of the office. When he needed money, he took the P100.00 and spent it.
The following crimes were committed:
(a)

Illegal exaction for demanding a different amount;

(b)

Estafa for deceiving the taxpayer; and

(c)

Malversation for getting the P100.00 from the vault.

Although the excess P100.00 was not covered by the Official Receipt, it was commingled with the other
public funds in the vault; hence, it became part of public funds and subsequent extraction thereof
constitutes malversation.
Note that numbers 1 and 2 are complexed as illegal exaction with estafa, while in number 3, malversation is a distinct
offense.
The issuance of the Official Receipt is the operative fact to convert the payment into public funds. The payor may
demand a refund by virtue of the Official Receipt.
In cases where the payor decides to let the official to keep the change, if the latter should pocket the excess, he
shall be liable for malversation. The official has no right but the government, under the principle of accretion, as the
owner of the bigger amount becomes the owner of the whole.
On the second form of illegal exaction
The act of receiving payment due the government without issuing a receipt will give rise to illegal exaction even
though a provisional receipt has been issued. What the law requires is a receipt in the form prescribed by law, which
means official receipt.
Illustration:
If a government cashier or officer to whom payment is made issued a receipt in his own private form, which he calls
provisional, even though he has no intention of misappropriating the amount received by him, the mere fact that he
issued a receipt not in the form prescribed by law, the crime of illegal exaction is committed. There must be voluntary
failure to issue the Official Receipt.
On the third form of illegal exaction
Under the rules and regulations of the government, payment of checks not belonging to the taxpayer, but that of
checks of other persons, should not be accepted to settle the obligation of that person.
Illustration:
A taxpayer pays his obligation with a check not his own but pertaining to another. Because of that, the check bounced
later on.
The crime committed is illegal exaction because the payment by check is not allowed if the check does not pertain to
the taxpayer himself, unless the check is a managers check or a certified check, amended already as of 1990. (See
the case of Roman Catholic.)
Under Article 213, if any of these acts penalized as illegal exaction is committed by those employed in the Bureau of
Customs or Bureau of Internal Revenue, the law that will apply to them will be the Revised Administrative Code or the
Tariff and Customs Code or National Revenue Code.
This crime does not require damage to the government.
Officers and employees of the BIR or Customs are not covered by the article.
The NIRC or Administrative Code is the applicable law
These officers are authorized to make impositions and to enter into compromises. Because of this discretion, their
demanding or collecting different from what is necessary is legal

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Article 214
OTHER FRAUDS

ELEMENTS:
a. That the offender is a public officer.
b.

That he takes advantage of his official position.

c.

That he commits any of the frauds or deceits enumerated in art. 315 to 318. (estafa; swindling)

Note: RTC has jurisdiction over the offense because the principal penalty is disqualification

Article 215
PROHIBITED TRANSACTIONS

ELEMENTS:
a. That the offender is an appointive public officer.
b.

That he becomes interested, directly or indirectly, in any transaction of exchange or speculation.

c.

That the transaction takes place within the territory subject to his jurisdiction.

d.

That he becomes interested in the transaction during his incumbency.

Notes:
a.
b.

Examples of transactions of exchange or speculation are: buying and selling stocks, commodities,
land etc wherein one hopes to take advantage of an expected rise or fall in price
Purchasing of stocks or shares in a company is simple investment and not a violation of the article.
However, regularly buying securities for resale is speculation

Article 216
POSSESSION OF PROHIBITED INTERESTS BY A PUBLIC OFFICER

Who are liable:


a. Public officer in any contract or business in which it is his official duty to intervene.
b.

c.
Notes:
a.
b.

Experts, arbitrators and private accountants in any contract or transaction connected with the
estate or property in the approval, distribution or adjudication of which they had acted.
Guardians and executors with respect to property belonging to their wards or the estate.
Actual fraud is not necessary.
Act is punished because of the possibility that fraud may be committed or that the officer may place his
own interest above that of the Government or party which he represents

The mere violation of the prohibition is already punished even if no actual fraud occurs because of the possibility that
fraud may be committed or that the officer may place his own interest above that of the government or party he
represents. (U. S. vs. Udarbe, 28 Phil. 383)

Section 14, Article VI of the Constitution


No Senator or Member of the House of Representatives may personally appear as counsel before any court of
justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or
indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the
government for his pecuniary benefit or where he may be called upon to act on account of his office.
Section 13, Article VII of the Constitution
The President, Vice-President, the Members of the Cabinet and their deputies or assistant shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not,
during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their office.
Section 2, Article IX-A of the Constitution
No member of a Constitutional Commission shall, during his tenure, hold any office or employment. Neither
shall he engage in the practice of any profession or in the active management or control of any business which in any
way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
contract with, or in any franchise or privilege granted by the government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations or their subsidiaries.
MALVERSATION OF PUBLIC FUNDS OR PROPERTY
Article 217
MALVERSATION OF PUBLIC FUNDS OR PROPERTY

ELEMENTS COMMON TO ALL ACTS MALVERSATION OF PUBLIC FUNDS OR PROPERTY :


a. That the offender be a public officer (or private person if entrusted with public funds or connived
with public officers)
b.

That he had the custody or control of funds or property (if not accountable for the funds, theft or
qualified theft)

c.

That those funds or property were public funds or property (even if private funds if attached,
seized, deposited or commingled with public funds)

d.

That he:
1. Appropriated the funds or property
2.

Took or misappropriated them

3.

Consented or, through abandonment or negligence, permitted any other person to take such
public funds or property. (it is not necessary that the offender profited thereby. His being remiss
in the duty of safekeeping public funds violates the trust reposed)

Concept of Malversation
It consists in the misappropriation or conversion of public funds or property to ones personal use or knowingly, or
through abandonment or negligence allowing other to use or appropriate the same. The offender is made liable
because of the nature of his duties to take care of the funds or property entrusted to him with the diligence of a good
father of a family. He is accountable by virtue of the nature of his office to account for funds or properties that come
to his possession. If he is not accountable for the funds or properties and he misappropriates the same, the crime will
not be malversation but estafa under Article 315.

Malversation is otherwise called embezzlement

This crime is predicated on the relationship of the offender to the property or funds involved. The offender must be
accountable for the property misappropriated. If the fund or property, though public in character is the responsibility
of another officer, malversation is not committed unless there is conspiracy.
In determining whether the offender is liable for malversation, it is the nature of the duties of the public officer that
controls. While the name of the office is important, what is controlling is whether in performing his duties as a public
officer, he has to account or is required by the nature of the performance of a duty, to render an account on the money
or property that came into his possession.
It is not necessary that the offender profited because somebody else may have misappropriated the funds in question
for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. He is liable for
malversation if such funds were lost or otherwise misappropriated by another.

It can be committed either with malice or through negligence or imprudence

There is no crime of malversation through negligence. The crime is malversation, plain and simple, whether
committed through dolo or culpa. There is no crime of malversation under Article 365 on criminal negligence
because in malversation under Article 217, the same penalty is imposed whether the malversation results from
negligence or was the product of deliberate act.

In determining whether the offender is a public officer, what is controlling is the nature of his office and not the
designation

The offender, to commit malversation, must be accountable for the funds or property misappropriated by him . If he
is not the one accountable but somebody else, the crime committed is theft. It will be qualified theft if there is abuse
of confidence.
Accountable officer does not refer only to cashier, disbursing officers or property custodian . Any public officer having
custody of public funds or property for which he is accountable can commit the crime of malversation if he would
misappropriate such fund or property or allow others to do so.

The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa

When private property is attached or seized by public authority and the public officer accountable therefor
misappropriates the same, malversation is committed also.
Illustration:
If a sheriff levied the property of the defendants and absconded with it, he is not liable of qualified theft but of
malversation even though the property belonged to a private person. The seizure of the property or fund impressed it
with the character of being part of the public funds it being in custodia legis. For as long as the public officer is the
one accountable for the fund or property that was misappropriated, he can be liable for the crime of malversation.
Absent such relation, the crime could be theft, simple or qualified.

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Estafa
It is usually committed by a private individual
Funds or property of misappropriation are privately
owned.
The offender appropriates personally the funds or
property.

Malversation
Committed by accountable public officers
The object is public fund or property.
Personal appropriation is not indispensable because
allowing others to commit the misappropriation is also
malversation.

When a public officer has official custody or the duty to collect or receive funds due the government, or the
obligation to account for them, his misappropriation of the same constitutes malversation

Note that the moment any money is commingled with the public fund even if not due the government, it becomes
impressed with the characteristic of being part of public funds. Once they are commingled, you do not know anymore
which belong to the government and which belong to the private persons. So that a public vault or safe should not be
used to hold any fund other that what is due to the government.

In malversation thru negligence, the negligence of the accountable public officer must be positively and clearly
shown to be inexcusable, approximating fraud or malice

Under jurisprudence, when the public officer leaves his post without locking his drawer, there is negligence. Thus, he
is liable for the loss.

The measure of negligence to be observed is the standard of care commensurate with the occasion

When malversation is not committed through negligence, lack of criminal intent or good faith is a defense

The failure of a public officer to have any duly forthcoming public funds or property upon demand, by any
authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use.
However, if at the very moment when the shortage is discovered, the accountable officer is notified, and he
immediately pays the amount from his pocket, the presumption does not arise

An accountable public officer may be convicted even if there is no direct evidence of misappropriation and the only
evidence is the shortage in his account which he has not been able to explain satisfactorily. (Palma Gil vs. People)
If a public officer reports the loss of money before a cash examination is conducted and the cause of the loss as
reported has a distinct ring of truth to it, the legal presumption of prima facie evidence of guilt will not apply. In order
to support conviction, the prosecution must prove the actual misappropriation of the missing funds .(Salvacion vs. The
Honorable Sandiganbayan, G. R. No. 68233, July 11, 1986)
To rebut the presumption of guilt prima facie under Article 217, the accused must raise the issue of accuracy,
correctness and regularity in the conduct of audit. If asked for a second audit before the filing of the information
against him and the same was denied, and during the trial, some disbursement vouchers were introduced which were
not considered in the first audit, the denial of the request for a second audit is fatal to the cause of the prosecution
because in the meantime, the evidence introduced does not establish a fact beyond reasonable doubt. Had the re-audit
requested by the accused been accorded due course, the remaining balance could have been satisfactorily accounted
for. (Mahinay vs. The Sandiganbayan. G. R. No. 61442, May 9, 1989)

Returning the embezzled funds is not exempting, it is only mitigating

Payment of the amount misappropriated or restitution of property misappropriated does not erase criminal
liability but only civil liability.

There is also no malversation when the accountable officer is obliged to go out of his office and borrow the
amount corresponding to the shortage and later, the missing amount is found in an unaccustomed place

A person whose negligence made possible the commission of malversation by another can be held liable as a
principal by indispensable cooperation

It is not necessary that the accountable public officer should actually misappropriate the fund or property involved. It
is enough that he has violated the trust reposed on him in connection with the property.

Demand as well as damage to the government are not necessary elements

Note that damage on the part of the government is not considered an essential element. It is enough that the
proprietary rights of the government over the funds have been disturbed through breach of trust.
The grant of loans through the vale system is a clear case of an accountable officer consenting to the improper or
unauthorized use of public funds by other persons, which is punishable by law. To tolerate such a practice is to give a
license to every disbursing officer to conduct a lending operation with the use of public funds. There is no law or
regulation allowing accountable officers to extend loans to anyone against the vales or chits given in exchange by
the borrowers. (Meneses vs. Sandiganbayan)
A private person may also commit malversation under the following situations:
(1)

Conspiracy with a public officer in committing malversation;

(2)

When he has become an accomplice or accessory to a public officer who commits malversation;

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(3)

When the private person is made the custodian in whatever capacity of public funds or property, whether
belonging to national or local government, and he misappropriates the same;

(4)

When he is constituted as the depositary or administrator of funds or property seized or attached by public
authority even though said funds or property belong to a private individual.

Technical malversation is not included in the crime of malversation. In malversation, the offender misappropriates
public funds or property for his own personal use, or allows any other person to take such funds or property for the
latters own personal use. In technical malversation, the public officer applies the public funds or property under his
administration to another public use different from that for which the public fund was appropriated by law or
ordinance. Recourse: File the proper information.
Article 218
FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS

ELEMENTS:
a. That the offender is a public officer, whether in the service or separated therefrom.
b.

That he must be an accountable officer for public funds property.

c.

That he is required by law or regulation to render accounts to the commission on audit, or to a


provincial auditor.

d. That he fails to do so for a period of two months after such accounts should be rendered.
The public officers who are bound to render accounts are the following:
1. cashiers
2. storekeepers
3. warehousemen and
4. those who by the nature of their position become custodian or public funds or property.

Note: Demand and misappropriation are not necessary

It is sufficient that there is a law or regulation requiring him to render an account. It is the failure to follow the
requirement of the law that is made punishable. It is not necessary that the offender prevent the situation of the crime
being committed because of the failure of the accountable officer to render an account.

Article 219
FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY

ELEMENTS:
a. That the offender is a public officer.
b.

That he must be an accountable officer for public funds or property.

c.

That he must have unlawfully left (or be on the point of leaving) the Philippines without securing
from the Commission on Audit a certificate showing that his accounts have been finally settled.

Who can commit this crime?


A responsible public officer, not necessarily an accountable one, who leaves the country without first securing
clearance from the Commission on Audit.

Note: The act of leaving the Philippines must be unauthorized or not permitted by law

Mere leaving without securing clearance constitutes violation of the Revised Penal Code. It is not necessary that they
really misappropriated public funds.
Article 220
ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY (technical malversation)

ELEMENTS:
a. That the offender is a public officer.
b.

That there is public fund or property under his administration.

c.

That such public fund or property has been appropriated by law or ordinance (without this, it is
simple malversation even if applied to other public purpose).

d.

That he applies the same to a public use other than for which such fund or property has been
appropriated by law or ordinance.

The term technical malversation is used because in this crime, the fund or property involved is already appropriated
or earmarked for a certain public purpose.
The offender is entrusted with such fund or property only to administer or apply the same to the public purpose for
which it was appropriated by law or ordinance. Instead of applying it to the public purpose to which the fund or
property was already appropriated by law, the public officer applied it to another purpose.

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To distinguish this article with Art 217, just remember that in illegal use of public funds or property, the offender
does not derive any personal gain, the funds are merely devoted to some other public use

Absence of damage is only a mitigating circumstance

Since damage is not an element of malversation, even though the application made proved to be more beneficial to
public interest than the original purpose for which the amount or property was appropriated by law, the public officer
involved is still liable for technical malversation.
If public funds were not yet appropriated by law or ordinance, and this was applied to a public purpose by the
custodian thereof, the crime is plain and simple malversation, not technical malversation. If the funds had been
appropriated for a particular public purpose, but the same was applied to private purpose, the crime committed is
simple malversation only.
Illustration:
The office lacked bond papers. What the government cashier did was to send the janitor, get some money from his
collection, told the janitor to buy bond paper so that the office will have something to use. The amount involved
maybe immaterial but the cashier commits malversation pure and simple.
This crime can also be committed by a private person.
Illustration:
A certain road is to be cemented. Bags of cement were already being unloaded at the side. But then, rain began to
fall so the supervisor of the road building went to a certain house with a garage, asked the owner if he could possibly
deposit the bags of cement in his garage to prevent the same from being wet. The owner of the house, Olive, agreed.
So the bags of cement were transferred to the garage of the private person. After the public officer had left, and the
workers had left because it is not possible to do the cementing, the owner of the garage started using some of the
cement in paving his own garage. The crime of technical malversation is also committed.
Note that when a private person is constituted as the custodian in whatever capacity, of public funds or property, and
he misappropriates the same, the crime of malversation is also committed. See Article 222.
Illustration:
The payroll money for a government infrastructure project on the way to the site of the project, the officers bringing
the money were ambushed. They were all wounded. One of them, however, was able to get away from the scene of
the ambush until he reached a certain house. He told the occupant of the house to safeguard the amount because it is
the payroll money of the government laborers of a particular project. The occupant of the house accepted the money
for his own use. The crime is not theft but malversation as long as he knew that what was entrusted in his custody is
public fund or property.
Article 221
FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY
ELEMENTS:
a.
b.

Offender has govt funds or property in his possession


He is under obligation to either:
1. make payment from such funds
2.

to deliver property in his custody or administration when ordered by competent authority

c. He maliciously fails or refuses to do so


Note: Penalty is based on value of funds/property to be delivered

Article 222
PERSONS WHO MAY BE HELD LIABLE UNDER ARTS 217 TO 221
a.

Private individual who, in any capacity, have charge of any national, provincial or municipal
funds, revenue, or property

b.

Administrator or depositary of funds or property that has been attached, seized or deposited by
public authority, even if owned by a private individual

Sheriffs and receivers fall under the term administrator

A judicial administrator in charge of settling the estate of the deceased is not covered by the article

Here, the funds or property belong to private individuals, but they are considered public funds or property if they come
to the possession of the public officer because of 1) a writ of attachment; or 2) if they are seized by virtue of a search
warrant. Or 3) if they are ordered deposited pending determination of ownership in the administrative or judicial
proceedings.
Private individuals may also be liable for malversation if they act as conspirators in the commission of the crime.

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INFIDELITY OF PUBLIC OFFICERS
Article 223
CONNIVING WITH OR CONSENTING TO EVASION

ELEMENTS:
a. That the offender is a public officer (on duty).
b.

That he is charged with the conveyance or custody of a prisoner, either detention prisoner or
prisoner by final judgment.

c.

That such prisoner escaped from his custody

d.

That he was in connivance with the prisoner in the latters escape

Detention prisoner: refers to a person in legal custody, arrested for and charged with some crime or public
offense

The release of a detention prisoner who could not be delivered to judicial authorities within the time fixed by law
is not infidelity in the custody of a prisoner. Neither is mere leniency or laxity in the performance of duty
constitutive of infidelity

There is real and actual evasion of service of sentence when the custodian permits the prisoner to obtain a
relaxation of his imprisonment

A municipal mayor who utilized the prisoners services for domestic chores in his house, including using him as a cook is
liable for faithlessness in the custody of prisoner (Art. 223) even though the convict may not have fled, in as much as
the prisoners leaving the prison was effected through him. (People vs. Evangelista, C.A. 38 O.G. 158).
Article 224
EVASION THROUGH NEGLIGENCE

ELEMENTS:
a. That the offender is a public officer.
b.

That he is charged with the conveyance or custody of a prisoner, either detention prisoner or
prisoner by final judgment.

c.

That such prisoner escapes through his negligence.

d.

Penalty based on nature of imprisonment

The article punishes a definite laxity which amounts to deliberate non-performance of a duty

Not every error is negligence under this article. To be liable, the negligence must be notorious and apparent. The
laxity must be definite and must seriously suggest a deliberate non-performance of a duty.
The negligence which is punishable however is not such definite laxity at all but that which amounts to deliberate nonperformance of the jailer or the guard. So that if a policemen on guard duty unlocked the door of the jail to let a
detention prisoner go out so he can clean the premises, but on the latters third trip to a nearby faucet, he walked
behind the police headquarters climbed over the wall and escape, the crime is not committed. (People vs. Solis, C.A.
43 O.G. 580).

The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford
complete exculpation

The liability of an escaping prisoner:


a. if he is a prisoner by final judgment, he is liable for evasion of service (art 157)
b. if he is a detention prisoner, he does not incur criminal liability (unless cooperating with the offender).

Article 225
ESCAPE OF PRISONERS UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER

ELEMENTS:
a. That the offender is a private person (note: must be on duty)
b.

That the conveyance or custody of a prisoner or person under arrest is confined to him.

c.

That the prisoner or person under arrest escapes.

d.

That the offender consents to the escape of the prisoner or person under arrest, or that the
escape takes place through his negligence

Note: This article is not applicable if a private person made the arrest and he consented to the escape of the
person he arrested

The offender under this article is not the one who arrested the escaping prisoner but one who agreed to have
the custody or charge of the prisoner or person under arrest.

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ORTEGA NOTES:
The crime is infidelity in the custody of prisoners if the offender involved is the custodian of the prisoner.
If the offender who aided or consented to the prisoners escaping from confinement, whether the prisoner is a convict
or a detention prisoner, is not the custodian, the crime is delivering prisoners from jail under Article156.
The crime of infidelity in the custody of prisoners can be committed only by the custodian of the prisoner.
If the jail guard who allowed the prisoner to escape is already off-duty at that time and he is no longer the custodian
of the prisoner, the crime committed by him is delivering prisoners from jail.
Note that you do not apply here the principle of conspiracy that the act of one is the act of all. The party who is not
the custodian who conspired with the custodian in allowing the prisoner to escape does not commit infidelity in the
custody of the prisoner. He commits the crime of delivering prisoners from jail.

Question & Answer


If a private person approached the custodian of the prisoner and for a certain consideration, told the
custodian to leave the door of the cell unlocked for the prisoner to escape. What crime had been committed?
It is not infidelity in the custody of prisoners because as far as the private person is concerned, this crime is
delivering prisoners from jail. The infidelity is only committed by the custodian.
This crime can be committed also by a private person if the custody of the prisoner has been confided to a private
person.
Illustration:
A policeman escorted a prisoner to court. After the court hearing, this policeman was shot at with a view to liberate
the prisoner from his custody. The policeman fought the attacker but he was fatally wounded. When he could no
longer control the prisoner, he went to a nearby house, talked to the head of the family of that house and asked him
if he could give the custody of the prisoner to him. He said yes. After the prisoner was handcuffed in his hands, the
policeman expired. Thereafter, the head of the family of that private house asked the prisoner if he could afford to
give something so that he would allow him to go. The prisoner said, Yes, if you would allow me to leave, you can
come with me and I will give the money to you. This private persons went with the prisoner and when the money
was given, he allowed him to go. What crime/s had been committed?
Under Article 225, the crime can be committed by a private person to whom the custody of a prisoner has been
confided.
Where such private person, while performing a private function by virtue of a provision of law, shall accept any
consideration or gift for the non-performance of a duty confided to him, Bribery is also committed. So the crime
committed by him is infidelity in the custody of prisoners and bribery.
If the crime is delivering prisoners from jail, bribery is just a means, under Article 156, that would call for the
imposition of a heavier penalty, but not a separate charge of bribery under Article 156.
But under Article 225 in infidelity, what is basically punished is the breach of trust because the offender is the
custodian. For that, the crime is infidelity. If he violates the trust because of some consideration, bribery is also
committed.
A higher degree of vigilance is required. Failure to do so will render the custodian liable. The prevailing ruling is
against laxity in the handling of prisoners.
Illustration:
A prison guard accompanied the prisoner in the toilet. While answering the call of nature, police officer waiting
there, until the prisoner escaped. Police officer was accused of infidelity.
There is no criminal liability because it does not constitute negligence. Negligence contemplated here refers to
deliberate abandonment of duty.
Note, however, that according to a recent Supreme Court ruling, failure to accompany lady prisoner in the comfort
room is a case of negligence and therefore the custodian is liable for infidelity in the custody of prisoner.
Prison guard should not go to any other place not officially called for. This is a case of infidelity in the custody of
prisoner through negligence under Article 224.
INFIDELITY IN CUSTODY OF DOCUMENTS
Article 226
REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS

ELEMENTS:
a. That the offender be a public officer.
b.

That he abstracts, destroys or conceals a document or papers.

c.

That the said document or paper should have been entrusted to such public officer by reason of
his office.

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d.

That damage, whether serious or not, to a third party or to the public interest should have been
caused.

The act of obstruction, destruction or concealment must cause damage to a third party or to the public interest.
Damage to a third party is usually pecuniary; but damage to public interest may consist in mere alarm to the public or
the alienation of its confidence on any branch of the government service.

The document must be complete and one by which a right could be established or an obligation could be
extinguished

Books, periodicals, pamphlets etc are not documents

Papers would include checks, promissory notes and paper money

Removal of a document presupposes unlawful appropriation of the official document. Destruction means to render
the document useless. Its nature to prove the existence of a fact is lost such that it cannot anymore prove the
probability or improbability of a fact in issue. Concealment on the other hand means to make it appear that the
document is not available.

A post office official who retained the mail without forwarding the letters to their destination is guilty of infidelity
in the custody of papers

Removal of a document or paper must be for an illicit purpose.

If the removal of the document is for a lawful purpose and that is, to secure the same from imminent danger or loss,
there is no crime committed under the law, (Kataniag vs. People, 74 Phil. 45).

There is
a.
b.
c.

illicit purpose when the intention of the offender is to:


tamper with it
to profit by it
to commit any act constituting a breech of trust in the official thereof

The act of removal, destruction or concealment should be coupled with criminal intent or malice (Manzanaris vs.
Sandiganbayan, et al., G.R. No. 64750, Jan. 30, 1984).

Removal is consummated upon removal or secreting away of the document from its usual place. It is immaterial
whether or not the illicit purpose of the offender has been accomplished

Removal of public records by the custodian does not require that the record be brought out of the premises where it
is kept. It is enough that the record be removed from the place where it should be and transferred to another place
where it is not supposed to be kept. If damage is caused to the public service, the public officer is criminally liable for
infidelity in the custody of official documents.

Infidelity in the custody of documents through destruction or concealment does not require proof of an illicit
purpose

Where in case for bribery or corruption, the monetary considerations was marked as exhibits, such considerations
acquires the nature of a document such that if the same would be spent by the custodian the crime is not malversation
but Infidelity in the custody of public records, because the money adduced as exhibits partake the nature of a
document and not as money. Although such monetary consideration acquires the nature of a document, the best
evidence rule does not apply here. Example, photocopies may be presented in evidence.

Delivering the document to the wrong party is infidelity in the custody thereof

The damage may either be great or small

Damage to public interest is necessary. However, material damage is not necessary.


Although there is no material damage caused, mere delay in rendering public service is considered damage.

The offender must be in custody of such documents

Distinction between infidelity in the custody of public document, estafa and malicious mischief
In infidelity in the custody of public document, the offender is the custodian of the official document removed or
concealed.
In estafa, the offender is not the custodian of the document removed or concealed.
In malicious mischief, the offender purposely destroyed and damaged the property/document.

Article 227
OFFICER BREAKING SEAL

ELEMENTS :
a. That the offender is a public officer.
b.

That he is charged with the custody of papers or property.

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c.

That these papers or property are sealed by proper authority.

d.

That he breaks the seals or permits them to be broken.

It is the breaking of the seals and not the opening of a closed envelope which is punished

Damage or intent to cause damage is not necessary; damage is presumed

If the official document is sealed or otherwise placed in an official envelope, the element of damage is not required.
The mere breaking of the seal or the mere opening of the document would already bring about infidelity even though
no damage has been suffered by anyone or by the public at large. The offender does not have to misappropriate the
same. Just trying to discover or look what is inside is infidelity already.
A crime is already committed regardless of whether the contents of the document are secret or private . It is enough
that it is entrusted to him in a sealed form or in a closed envelope and he broke the seal or opened the envelop.
Public trust is already violated if he managed to look into the contents of the document.
Distinction between infidelity and theft
There is infidelity if the offender opened the letter but did not take the same.
There is theft if there is intent to gain when the offender took the money.
Note that the document must be complete in legal sense. If the writings are mere form, there is no crime.
Illustration:
As regard the payroll, which has not been signed by the Mayor, no infidelity is committed because the document is not
yet a payroll in the legal sense since the document has not been signed yet.
In "breaking of seal", the word "breaking" should not be given a literal meaning. Even if actually, the seal was not
broken, because the custodian managed to open the parcel without breaking the seal.
Article 228
OPENING OF CLOSED DOCUMENTS

ELEMENTS:
a. That the offender is a public officer.
b.

That any closed papers, documents, or objects are entrusted to his custody.

c.

That he opens or permits to be opened said closed papers, documents or objects.

d.

That he does not have proper authority.

Note: Damage also not necessary

In Article 227, the mere breaking of the seal is what is made punishable while in Article 228, the mere opening of
closed documents is enough to hold the offender criminally liable. The breaking of the seal or the opening of the
closed document must be done without lawful authority or order from competent authority. In both offenses, damage
to the public interest is not required.
REVELATION OF SECRETS
Article 229
REVELATION OF SECRET BY AN OFFICER

ELEMENTS OF PAR.1: BY REASON OF HIS OFFICIAL CAPACITY


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

That he knows of a secret by reason of his official capacity.

c.

That he reveals such secret without authority or justifiable reasons.

d.

Notes:
a.

That damage, great or small, be caused to the public interest.


(damage is essential)
Secret must affect public interest

The secrets referred to in this article are those which have an official or public character. It does not include secret
information regarding private individuals. Nor does it include military or State secrets in as much as the revelation of
the same is classified as espionage, a crime in violation of the national security of the State.
b.

Secrets of a private individual is not included

c.

Espionage for the benefit of another State is not contemplated by the article. If regarding military
secrets or secrets affecting state security, the crime may be espionage.

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ELEMENTS OF PAR 2 DELIVERING WRONGFULLY PAPERS OR COPIES OF PAPERS OF WHICH HE MAY HAVE
CHARGE AND WHICH SHOULD NOT BE PUBLISHED:
a. That the offender is a public officer.
b.

That he has charge of papers.

c.

That those papers should not be published.

d.

That he delivers those papers or copies thereof to a third person.

e.

That the delivery is wrongful.

f.

That damage be caused to public interest.

Notes:
a.

Charge: means custody or control. If he is merely entrusted with the papers and not with the custody
thereof, he is not liable under this article

b.

If the papers contain secrets which should not be published, and the public officer having charge
thereof removes and delivers them wrongfully to a third person, the crime is revelation of secrets. On
the other hand, if the papers do not contain secrets, their removal for an illicit purpose is infidelity in
the custody of documents

c.

Damage is essential to the act committed

Article 230
PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL

ELEMENTS:
a. That the offender is a public officer
b.

That he knows of the secret of a private individual by reason of his office.

c.

That he reveals such secrets without authority or justification reason.

Revelation to one person is sufficient

If the offender is an attorney, he is properly liable under Art 209 (betrayal of trust by an attorney)

Damage to private individual is not necessary


OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS

Article 231
OPEN DISOBEDIENCE

ELEMENTS:
a. That the offender is a judicial or executive officer.
b.

That there is a judgment, decision or order of superior authority.

c.

That such judgment, decision or order was made within the scope of the jurisdiction of the
superior authority and issued with all the legal formalities.

d.

that the offender without any legal justification openly refuses to execute the said judgment,
decision or order which he is duty bound to obey.

The gravamen of the offense is the open refusal of the offender to execute the order without justifiable reason.

Note: Judgment should have been rendered in a hearing and issued within proper jurisdiction with all legal
solemnities required

The term execute as found in the law does not only means performance of an act since the judgment, decision or
order may also direct the non-performance of an act.
The article does not apply to the members of Congress.

Article 232
DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER

ELEMENTS:
a. That the offender is a public officer.
b.

That an order is issued by his superior for execution.

c.

That he has for any reason suspended the execution of such order.

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d.

That his superior disapproves the suspension of the execution of the order.

e.

That the offender disobeys his superior despite the disapproval of the suspension.

Note: A public officer is not liable if the order of the superior is illegal

What is contemplated here is a situation where the subordinate has some doubts regarding the legality of the order.
Hence, he is afforded an opportunity to suspend the execution of the order, so as to give him time to further study the
same. He commits no crime for doing this act. However, if he continues to suspend the execution of the order
notwithstanding the disapproval by his superior of the stay of the execution, such refusal on his part already
constitutes a crime punishable under this article.

Article 233
REFUSAL OF ASSISTANCE

ELEMENTS:
a. That the offender is a public officer.
b.

That a competent authority demands from the offender that he lend his cooperation towards the
administration of justice or other public service.

c.

That the offender fails to do so maliciously.

Involves a request from one public officer to another

Damage to the public interest or third party is essential

Damage is essential whether great or small. But the penalty is affected by the seriousness of the damage. Note that
the refusal must be done with malice.

Demand is necessary

The situation contemplated herein may refer to the administration of justice before the case is filed in court.
Competent authority may refer to persons in authority who are charged by the law to help in the administration of
justice. The term may refer to police authorities. However, when a case under investigation reaches the court, the
remedy may not be limited to incurring criminal liability under this article because the refusal may already be
punished as direct or indirect contempt of court.
This is a crime, which a policeman may commit when, being subpoenaed to appear in court in connection with a crime
investigated by him but because of some arrangement with the offenders, the policeman does not appear in court
anymore to testify against the offenders. He tried to assail the subpoena so that ultimately the case would be
dismissed. It was already held that the policeman could be prosecuted under this crime of refusal of assistance and
not that of dereliction of duty.
Article 234
REFUSAL TO DISCHARGE ELECTIVE OFFICE

ELEMENTS:
a. That the offender is elected by popular election to a public office.
b.

That he refuses to be sworn in or discharge the duties of said office.

c.

That there is no legal motive for such refusal to be sworn in or to discharge the duties of said
office.

After proclamation of a candidate to a public office, it becomes his duty to render public service. Since it is his duty,
then his refusal to perform such duty is punishable under the law.

Note: Even if the person did not run for the office on his own will as the Constitution provides that every citizen
may be required to render service

Article 235
MALTREATMENT OF PRISONERS

ELEMENTS:
a. That the offender is a public officer or employee.

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b.

That he has under charge a prisoner or detention prisoner (otherwise the crime is physical injuries)

c.

That he maltreats such prisoner in either of the following manners:


1.

By overdoing himself in the correction or handling of a prisoner or detention prisoner under


his charge either

2.

by the imposition of punishments not authorized by the regulations, or


by inflicting such punishments (those authorized) in a cruel and humiliating manner, or

by maltreating such prisoner to extort a confession or to obtain some information from the
prisoner.

The maltreatment does not really require physical injuries.


authorized if executed in excess of the prescribed degree.

Any kind of punishment not authorized or though

But if as a result of the maltreatment, physical injuries were caused to the prisoner , a separate crime for the physical
injuries shall be filed. You do not complex the crime of physical injuries with the maltreatment because the way
Article 235 is worded, it prohibits the complexing of the crime.
If the maltreatment was done in order to extort confession, therefore, the constitutional right of the prisoner is
further violated. The penalty is qualified to the next higher degree.

The public officer must have actual charge of the prisoner in order to be held liable

If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is physical injuries.
If a Barangay Captain maltreats a person after the latters arrest but before confinement, the offense is not
maltreatment but physical injuries. The victim must actually be confined either as a convict or a detention prisoner
for Art. 235 to apply. (People vs. Baring, et al., 37 O.G. 1366).

To be considered a detention prisoner, the person arrested must be placed in jail even for just a short while

The offended party here must be a prisoner in the legal sense. The mere fact that a private citizen had been
apprehended or arrested by a law enforcer does not constitute him a prisoner. To be a prisoner, he must have been
booked and incarcerated no matter how short it is.
Illustration:
A certain snatcher was arrested by a law enforcer, brought to the police precinct, turned over to the custodian of that
police precinct. Every time a policeman entered the police precinct, he would ask, What is this fellow doing here?
What crime has he committed?. The other policeman would then tell, This fellow is a snatcher. So every time a
policeman would come in, he would inflict injury to him. This is not maltreatment of prisoner because the offender is
not the custodian. The crime is only physical injuries.
But if the custodian is present there and he allowed it, then he will be liable also for the physical injuries inflicted,
but not for maltreatment because it was not the custodian who inflicted the injury.
But if it is the custodian who effected the maltreatment, the crime will be maltreatment of prisoners plus a separate
charge for physical injuries.

Offender may also be held liable for physical injuries or damage caused
Article 236
ANTICIPATION OF DUTIES OF A PUBLIC OFFICE

ELEMENTS:
a. That the offender is entitled to hold a public office or employment, either by election or
appointment.
b.

That the law requires that he should first be sworn in and/or should first give a bond.

c.

That he assumes the performance of the duties and powers of such office.

d.

That he has not taken his oath of office and /or given the bond required by law.

Article 237
PROLONGING PERFORMANCE OF DUTIES AND POWERS

ELEMENTS:
a. That the offender is holding a public office.
b.

That the period provided by law, regulations or special provisions for holding such office has
already expired.

c.

That he continues to exercise the duties and powers of such office.

Note: The article contemplates officers who have been suspended, separated or declared over-aged or dismissed

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The crime is committed only if the public officer has lost every right to the office because there are offices which
require the officer to continue serving as such properly relieved. The law is intended to put an end to the principle of
hold over.
Article 238
ABANDONMENT OF OFFICE OR POSITION
ELEMENTS:
a.

That the offender is a public officer.

b.

That he formally resigns from his position.

c.

That his resignation has not yet been accepted.

d.

That he abandons his office to the detriment of the public service.

There must be formal or written resignation

Oral resignation is not allowed. The resignation must be in writing and directed to the appointing power who has the
authority to accept or disapprove the same. This requirement is indispensable because the letter of resignation goes
into a process.

The offense is qualified if the purpose behind the abandonment is to evade the discharge of duties consisting of
preventing, prosecuting or punishing any of the crimes against national security. The penalty is higher ( one
degree ). This involves the following crimes:
a. treason
b. conspiracy and proposal to commit conspiracy
c. misprision of treason
d. espionage
e. inciting to war or giving motives to reprisals
f.
violation of neutrality
g. correspondence with hostile country
h. flight to enemy country
i.
piracy and mutiny on the high seas
j.
rebellion
k. conspiracy and proposal to commit rebellion
l.
disloyalty to public officers
m. inciting to rebellion
n. sedition
o. conspiracy to commit sedition
p. inciting to sedition

Abandonment of Office or Position (238)


There is actual abandonment through resignation to
evade the discharge of duties.

Dereliction of Duty (208)


Public officer does not abandon his office but merely fails
to prosecute a violation of the law.

Article 239
USURPATION OF LEGISLATIVE POWERS
ELEMENTS:
a. That the offender is an executive or judicial officer.
b.

That he (a.) makes general rules or regulations beyond the scope of his authority or (b.) attempts to
repeal a law or (c.) suspends the execution thereof.

Article 240
USURPATION OF EXECUTIVE FUNCTIONS
ELEMENTS:
a.
That the offender is a judge.
b.

That he (a.) assumes a power pertaining to the executive authorities, or (b.) obstructs executive
authorities in the lawful exercise of their powers.

Note: Legislative officers are not liable for usurpation of executive functions

Article 241
USURPATION OF JUDICIAL FUNCTIONS
ELEMENTS:
a.
That the offender is an officer of the executive branch of the government.
b.

That he (a.) assumes judicial powers, or (b.) obstruct the execution of any order decision rendered
by any judge within his jurisdiction.

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Note: A mayor is guilty under this article when he investigates a case while a justice of the peace is in the
municipality

Article 242
DISOBEYING REQUEST FOR DISQUALIFICATION
ELEMENTS:
a.
That the offender is a public officer.
b.

That a proceeding is pending before such public officer.

c.

That there is a question brought before the proper authority regarding his jurisdiction, which is not
yet decided.

d.

That he has been lawfully required to refrain from continuing the proceeding.

e.

That he continues the proceeding.

Even if the jurisdiction of the offender is later upheld or sustained, he is still liable because what is in issue is not the
legality of his jurisdiction, but whether he obeyed or disobeyed the temporary restraining order issued by the higher
authority.

Article 243
ORDERS OR REQUESTS BY EXECUTIVE OFFICER TO ANY JUDICIAL AUTHORITY
ELEMENTS:
a.
That the offender is an executive officer.

b.

That he addresses any order or suggestion to any judicial authority.

c.

That the order or suggestion relates to any case or business coming within the exclusive jurisdiction
of the courts of justice.

Note: Legislative or judicial officers are not liable under this article

Article 244
UNLAWFUL APPOINTMENTS
ELEMENTS:
a.
That the offender is a public officer.

b.

That he nominates or appoints a person to a public office.

c.

That such person lacks the legal qualification therefor.

d.

That the offender knows that his nominee or appointee lacks the qualification at the time he made
the nomination or appointment.

Recommending, knowing that the person recommended is not qualified is not a crime

The word nominate is not the same as recommend. To nominate is to guarantee to the appointing power that the
person nominated has all the qualifications to the office. Recommendation on the other hand does not make any
guarantee as to the legal fitness of the candidate to public office.

There must be a law providing for the qualifications of a person to be nominated or appointed to a public office

Article 245
ABUSES AGAINST CHASTITY
ELEMENTS:
a.
That the offender is a public officer.
b.

That he solicits or makes immoral or indecent advances to a woman.

c.

That such woman must be


1.

interested in matters pending before the offender for decision, or with respect to which he is
required to submit a report to or consult with a superior officer, or

2.

under the custody of the offender who is a warden or other public officer directly charged with
care and custody of prisoners or person under arrest, or

3.

the wife, daughter, sister or relative within the same degree by affinity of the person in the
custody of the offender

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Only a lady can be a complainant here so that a gay guard or warden who makes immoral proposals or indecent
advances to a male prisoner is not liable under this law.
Mere indecent solicitation or advances of a woman over whom the public officer exercises a certain influence because
the woman is involved in a case where the offender is to make a report of result with superiors or otherwise a case
which the offender was investigating.
This crime is also committed if the woman is a prisoner and the offender is her jail warden or custodian, or even if the
prisoner may be a man if the jail warden would make the immoral solicitations upon the wife, sister, daughter, or
relative by affinity within the same degree of the prisoner involved.

The mother of the person in the custody of the public officer is not included

This crime cannot be committed if the warden is a woman and the prisoner is a man. Men have no chastity.
If the warden is also a woman but is a lesbian, it is submitted that this crime could be committed, as the law does not
require that the custodian be a man but requires that the offended be a woman.

Solicit: means to propose earnestly and persistently something unchaste and immoral to a woman

The word solicit means to demand earnestly. In this case, the demand is for sexual favor. It must be immoral or
indecent and done by the public officer taking advantage of his position as one who can help by rendering a favorable
decision or unwarranted benefits, advantage or preference to a person under his custody.

The crime is consummated by mere proposal

It is not necessarily for the offended party to surrender her virtue to consummate the crime. Mere proposal is sufficient
to consummate the crime.
Even if the woman may have lied with the hearing officer or to the public officer and acceded to him, that does not
change the crime because the crime seeks to penalize the taking advantage of official duties.
It is immaterial whether the woman did not agree or agreed to the solicitation. If the woman did not agree and the
public officer involved pushed through with the advances, attempted rape may have been committed.
Legally, a prisoner is an accountability of the government. So the custodian is not supposed to interfere. Even if the
prisoner may like it, he is not supposed to do that. Otherwise, abuse against chastity is committed.
If he forced himself against the will of the woman, another crime is committed, that is, rape aside from abuse
against chastity.
You cannot consider the abuse against chastity as absorbed in the rape because the basis of penalizing the acts is
different from each other.

Proof of solicitation is not necessary when there is sexual intercourse

Republic Act No. 7877 (Anti-Sexual Harassment Act)


Committed by any person having authority, influence or moral ascendancy over another in a work, training or education
environment when he or she demands, requests, or otherwise requires any sexual favor from the other regardless of
whether the demand, request or requirement for submission is accepted by the object of the said act (for a passing
grade, or granting of scholarship or honors, or payment of a stipend, allowances, benefits, considerations; favorable
compensation terms, conditions, promotions or when the refusal to do so results in a detrimental consequence for the
victim).
Also holds liable any person who directs or induces another to commit any act of sexual harassment, or who cooperates
in the commission, the head of the office, educational or training institution solidarily.
Complaints to be handled by a committee on decorum, which shall be determined by rules and regulations on such.
Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment.

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TITLE EIGHT
CRIMES AGAINST PERSONS
Crimes against persons
1.

Parricide (Art. 246);

2.

Murder (Art. 248);

3.

Homicide (Art. 249);

4.

Death caused in a tumultuous affray (Art. 251);

5.

Physical injuries inflicted in a tumultuous affray (Art. 252);

6.

Giving assistance to suicide (Art. 253);

7.

Discharge of firearms (Art. 254);

8.

Infanticide (Art. 255);

9.

Intentional abortion (Art. 256);

10.

Unintentional abortion (Art. 257);

11.

Abortion practiced by the woman herself or by her parents (Art. 258);

12.

Abortion practiced by a physician or midwife and dispensing of abortives (Art. 259);

13.

Duel (Art. 260);

14.

Challenging to a duel (Art. 261);

15.

Mutilation (Art. 262);

16.

Serious physical injuries (Art. 263);

17.

Administering injurious substances or beverages (Art. 264);

18.

Less serious physical injuries (Art. 265);

19.

Slight physical injuries and maltreatment (Art. 266); and

20.

Rape (Art. 266-A).


DESTRUCTION OF LIFE

Article 246
PARRICIDE
ELEMENTS:
1. That a person is killed.
2.

That the deceased is killed by the accused.

3.

That the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other
ascendant or other descendant, or the legitimate spouse of the accused.

Notes:
1.

The relationship of the offender with the victim is the essential element of the felony

The relationship must be in the direct line and not in the collateral line.
The relationship between the offender and the offended party must be legitimate, except when the offender and the
offended party are related as parent and child.

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Except between husband and wife, the offender must be related to the offended party by blood.
2.

Parents and children are not included in the term ascendants or descendants

3.

The other ascendant or descendant must be legitimate. On the other hand, the father, mother or child may
be legitimate or illegitimate

If the offender and the offended party, although related by blood and in the direct line, are separated by an
intervening illegitimate relationship, parricide can no longer be committed. The illegitimate relationship between the
child and the parent renders all relatives after the child in the direct line to be illegitimate too.
The only illegitimate relationship that can bring about parricide is that between parents and illegitimate children as
the offender and the offended parties.
Illustration:
A is the parent of B, the illegitimate daughter. B married C and they begot a legitimate child D. If D, daughter of B
and C, would kill A, the grandmother, the crime cannot be parricide anymore because of the intervening illegitimacy.
The relationship between A and D is no longer legitimate. Hence, the crime committed is homicide or murder.
A, an illegitimate son of B, who killed the legitimate father of the latter, is not guilty of Parricide because in case of
other ascendants (grandparents, great grandparents, etc.), the relationship with the killer must be legitimate. The
same is true with other descendants that is, grandchildren, great grandchildren, etc.
4.

The child should not be less than 3 days old. Otherwise, the offense is infanticide

That the mother killed her child in order to conceal her dishonor is not mitigating . This is immaterial to the crime of
parricide, unlike in the case of infanticide. If the child is less than three days old when killed, the crime is infanticide
and intent to conceal her dishonor is considered mitigating.
5.

Relationship must be alleged

In killing a spouse, there must be a valid subsisting marriage at the time of the killing. Also, the information should
allege the fact of such valid marriage between the accused and the victim.
In a ruling by the Supreme Court, it was held that if the information did not allege that the accused was legally
married to the victim, he could not be convicted of parricide even if the marriage was established during the trial. In
such cases, relationship shall be appreciated as generic aggravating circumstance.
The Supreme Court has also ruled that Muslim husbands with several wives can be convicted of parricide only in case
the first wife is killed. There is no parricide if the other wives are killed although their marriage is recognized as
valid. This is so because a Catholic man can commit the crime only once. If a Muslim husband could commit this
crime more than once, in effect, he is being punished for the marriage which the law itself authorized him to contract.
6.

A stranger who cooperates in committing parricide is liable for murder or homicide

Since parricide is a crime of relationship, if a stranger conspired in the commission of the crime, he cannot be held
liable for parricide. His participation would make him liable for murder or for homicide, as the case may be. The rule
of conspiracy that the act of one is the act of all does not apply here because of the personal relationship of the
offender to the offended party.
Illustration:
A spouse of B conspires with C to kill B. C is the stranger in the relationship. C killed B with treachery. The means
employed is made known to A and A agreed that the killing will be done by poisoning.
As far as A is concerned, the crime is based on his relationship with B. It is therefore parricide. The treachery that was
employed in killing Bong will only be generic aggravating circumstance in the crime of parricide because this is not one
crime that requires a qualifying circumstance.
But that same treachery, insofar as C is concerned, as a stranger who cooperated in the killing, makes the crime
murder; treachery becomes a qualifying circumstance.
7.

Even if the offender did not know that the person he had killed is his son, he is still liable for parricide
because the law does not require knowledge of the relationship

Article 365 expressly provides that parricide can be committed through reckless imprudence. The penalty will not be
under Article 246 but under Article 365.
Similarly, parricide can be committed by mistake. This is demonstrated in a situation where a person wanting to kill a
stranger, kills his own father by mistake. Although the crime committed is parricide, the offender will not be punished
under Article 246 but under Article 49, which prescribes a penalty much lower than that provided under Article 246.
Article 247
DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL CIRCUMSTANCES
Requisites:
1. A legally married person or parent surprises his spouse or daughter (the latter must be under 18 and living
with them) in the act of committing sexual intercourse with another person
2.

He/she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act
or immediately thereafter

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3.

He has not promoted or facilitated the prostitution of his wife or daughter, or that he has not consented to
the infidelity of the other spouse.

Notes:
1.

Article does not define or penalize a felony

Article 247, far from defining a felony merely grants a privilege or benefit, more of an exempting circumstance as the
penalty is intended more for the protection of the accused than a punishment. Death under exceptional character can
not be qualified by either aggravating or mitigating circumstances.
If the accused fails to establish the circumstances called for in Article 247, he/she will be guilty of Parricide and
Murder or Homicide if the victims were killed.
2.

Not necessary that the parent be legitimate

3.

Article applies only when the daughter is single

4.

Surprise: means to come upon suddenly or unexpectedly

5.

Art 247 is applicable when the accused did not see his spouse in the act sexual intercourse with another
person. However, it is enough that circumstances reasonably show that the carnal act is being committed or
has been committed

It is not necessary that the spouse actually saw the sexual intercourse being committed. It is enough that he/she
surprised them under such circumstances that no other reasonable conclusion can be inferred but that a carnal act was
being performed or has just been committed.
The article does not apply where the wife was not surprised in flagrant adultery but was being abused by a man as in
this case there will be defense of relation.
If the offender surprised a couple in sexual intercourse, and believing the woman to be his wife, killed them, this
article may be applied if the mistake of facts is proved.
The benefits of this article do not apply to the person who consented to the infidelity of his spouse or who facilitated
the prostitution of his wife.
6.

Sexual intercourse does not include preparatory acts

So if the surprising took place before any actual sexual intercourse could be done because the parties are only in their
preliminaries, the article cannot be invoked anymore.
7.

Immediately thereafter: means that the discovery, escape, pursuit and the killing must all form parts of one
continuous act

The phrase immediately thereafter has been interpreted to mean that between the surprising and the killing of the
inflicting of the physical injury, there should be no break of time. In other words, it must be a continuous process.
If there was already a break of time between the sexual act and the killing or inflicting of the injury, the law
presupposes that the offender regained his reason and therefore, the article will not apply anymore.
8.

The killing must be the direct by-product of the rage of the accused

Article 247 does not provide that the victim is to be killed instantly by the accused after surprising his spouse in the act
of intercourse. What is required is that the killing is the proximate result of the outrage overwhelming the accused
upon the discovery of the infidelity of his spouse. The killing should have been actually motivated by the same blind
impulse.
9.

No criminal liability is incurred when less serious or slight physical injuries are inflicted. Moreover, in case
third persons caught in the crossfire suffer physical injuries, the accused is not liable. The principle that one
is liable for the consequences of his felonious act is not applicable because he is not committing a felony

In the case of People v. Abarca, 153 SCRA 735, two persons suffered physical injuries as they were caught in the
crossfire when the accused shot the victim. A complex crime of double frustrated murder was not committed as the
accused did not have the intent to kill the two victims. Here, the accused did not commit murder when he fired at the
paramour of his wife. Inflicting death under exceptional circumstances is not murder. The accused was held liable for
negligence under the first part, second paragraph of Article 365, that is, less serious physical injuries through simple
negligence. No aberratio ictus because he was acting lawfully.
A person who acts under Article 247 is not committing a crime. Since this is merely an exempting circumstance, the
accused must first be charged with:
(1)

Parricide if the spouse is killed;

(2)

Murder or homicide depending on how the killing was done insofar as the paramour or the mistress is
concerned;

(3)

Homicide through simple negligence, if a third party is killed;

(4)
Physical injuries through reckless imprudence, if a third party is injured.
If death results or the physical injuries are serious, there is criminal liability although the penalty is only destierro.
The banishment is intended more for the protection of the offender rather than a penalty.

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If the crime committed is less serious physical injuries or slight physical injuries, there is no criminal liability.
Article 248
MURDER
ELEMENTS :
1. That a person was killed.
2.

That the accused killed him.

3.

That the killing was attended by any of the following qualifying circumstances

4.

a.

with treachery, taking advantage of superior strength, with the aid or armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity

b.

in consideration of price, reward or promise

c.

by means of inundation, fire, poison, explosion, shipwreck, stranding of vessel, derailment or


assault upon a street car or locomotive, fall of airship, by means of motor vehicles or with the use
of any other means involving great waste or ruin

d.

on occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake,


eruption of a volcano, destructive cyclone, epidemic or any other public calamity

e.

with evident premeditation

f.

with cruelty, by deliberately and inhumanely augmenting the suffering of the victim or outraging
or scoffing at his person or corpse

The killing is not parricide or infanticide.

Notes:
While the circumstance of by a band is not among those enumerated that could qualify killing to murder, it would
seem that if the killers constituted a band, the crime is murder because the circumstance of with the aid of armed
men is included in the qualifying circumstances.
1.

The victim must be killed in order to consummate the offense. Otherwise, it would be attempted or
frustrated murder

Killing a person with treachery is murder even if there is no intent to kill. (People vs. Cagoco, 58 Phil. 530)
2.

Any of the qualifying circumstances must be alleged in the information. Otherwise, they will only be
considered as generic aggravating circumstances

When the other circumstances are absorbed or included in one qualifying circumstance, they cannot be treated or
separated as generic aggravating circumstances. (People vs. Remalante, 92 Phil. 48)
3.

Treachery and premeditation are inherent in murder with the use of poison

Ortega Notes:
In murder, any of the following qualifying circumstances is present:
(1)

Treachery, taking advantage of superior strength, aid or armed men, or employing means to waken the
defense, or of means or persons to insure or afford impunity;
There is treachery when the offender commits any of the crimes against the person employing means,
methods or forms in the execution thereof that tend directly and especially to insure its execution without
risk to himself arising from the defense which the offended party might make.
This circumstance involves means, methods, form in the execution of the killing which may actually be an
aggravating circumstance also, in which case, the treachery absorbs the same.
Illustration:
A person who is determined to kill resorted to the cover of darkness at nighttime to insure the killing.
Nocturnity becomes a means that constitutes treachery and the killing would be murder. But if the
aggravating circumstance of nocturnity is considered by itself, it is not one of those which qualify a homicide
to murder. One might think the killing is homicide unless nocturnity is considered as constituting treachery,
in which case the crime is murder.
The essence of treachery is that the offended party was denied the chance to defend himself because of the
means, methods, form in executing the crime deliberately adopted by the offender. It is a matter of
whether or not the offended party was denied the chance of defending himself.
If the offended was denied the chance to defend himself, treachery qualifies the killing to murder. If despite
the means resorted to by the offender, the offended was able to put up a defense, although unsuccessful,

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treachery is not available. Instead, some other circumstance may be present. Consider now whether such
other circumstance qualifies the killing or not.
Illustration:
If the offender used superior strength and the victim was denied the chance to defend himself, there is
treachery. The treachery must be alleged in the information. But if the victim was able to put up an
unsuccessful resistance, there is no more treachery but the use of superior strength can be alleged and it
also qualifies the killing to murder.
One attendant qualifying circumstance is enough. If there are more than one qualifying circumstance
alleged in the information for murder, only one circumstance will qualify the killing to murder and the other
circumstances will be taken as generic.
To be considered qualifying, the particular circumstance must be alleged in the information. If what was
alleged was not proven and instead another circumstance, not alleged, was established during the trial, even
if the latter constitutes a qualifying circumstance under Article 248, the same can not qualify the killing to
murder. The accused can only be convicted of homicide.
Generally, murder cannot be committed if at the beginning, the offended had no intent to kill because the
qualifying circumstances must be resorted to with a view of killing the offended party. So if the killing were
at the spur of the moment, even though the victim was denied the chance to defend himself because of
the suddenness of the attack, the crime would only be homicide. Treachery contemplates that the means,
methods and form in the execution were consciously adopted and deliberately resorted to by the offender,
and were not merely incidental to the killing.
If the offender may have not intended to kill the victim but he only wanted to commit a crime against him
in the beginning, he will still be liable for murder if in the manner of committing the felony there was
treachery and as a consequence thereof the victim died. This is based on the rule that a person committing
a felony shall be liable for the consequences thereof although different from that which he intended.
Illustration:
The accused, three young men, resented the fact that the victim continued to visit a girl in their
neighborhood despite the warning they gave him. So one evening, after the victim had visited the girl, they
seized and tied him to a tree, with both arms and legs around the tree. They thought they would give him
a lesson by whipping him with branches of gumamela until the victim fell unconscious. The accused left not
knowing that the victim died.
The crime committed was murder. The accused deprived the victim of the chance to defend himself when
the latter was tied to a tree. Treachery is a circumstance referring to the manner of committing the crime.
There was no risk to the accused arising from the defense by the victim.
Although what was initially intended was physical injury, the manner adopted by the accused was
treacherous and since the victim died as a consequence thereof, the crime is murder -- although originally,
there was no intent to kill.
When the victim is already dead, intent to kill becomes irrelevant. It is important only if the victim did not
die to determine if the felony is physical injury or attempted or frustrated homicide.
So long as the means, methods and form in the execution is deliberately adopted, even if there was no intent
to kill, there is treachery.
(2)

In consideration of price, reward or promises;

(3)

Inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car
or locomotive, fall of an airship, by means of a motor vehicle, or with the use of other means involving
great waste and ruin;
The only problem insofar as the killing by fire is concerned is whether it would be arson with homicide, or
murder.
When a person is killed by fire, the primordial criminal intent of the offender is considered. If the
primordial criminal intent of the offender is to kill and fire was only used as a means to do so, the crime is
only murder. If the primordial criminal intent of the offender is to destroy property with the use of
pyrotechnics and incidentally, somebody within the premises is killed, the crime is arson with homicide . But
this is not a complex crime under Article 48. This is single indivisible crime penalized under Article 326,
which is death as a consequence of arson. That somebody died during such fire would not bring about
murder because there is no intent to kill in the mind of the offender. He intended only to destroy property.
However, a higher penalty will be applied.

When killing was accomplished by means of fire alleged in the information, it does not qualify killing to Murder
unless the use of fire was employed to kill the victim.
In People v. Pugay and Samson, 167 SCRA 439, there was a town fiesta and the two accused were at the
town plaza with their companions. All were uproariously happy, apparently drenched with drink. Then, the
group saw the victim, a 25 year old retard walking nearby and they made him dance by tickling his sides with
a piece of wood. The victim and the accused Pugay were friends and, at times, slept in the same place
together. Having gotten bored with their form of entertainment, accused Pugay went and got a can of
gasoline and poured it all over the retard. Then, the accused Samson lit him up, making him a frenzied,
shrieking human torch. The retard died.

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It was held that Pugay was guilty of homicide through reckless imprudence. Samson only guilty of homicide,
with the mitigating circumstance of no intention to commit so grave a wrong. There was no animosity
between the two accused and the victim such that it cannot be said that they resort to fire to kill him. It
was merely a part of their fun making but because their acts were felonious, they are criminally liable.
(4)

On occasion of any of the calamities enumerated in the preceding paragraph c, or an earthquake, eruption
of volcano, destructive cyclone, epidemic or any other public calamity;

(5)

Evident premeditation; and

When the actual victim turns out to be different from the intended victim, premeditation is not aggravating. (People
vs. Guillen, 85 Phil. 307)
(6)

Cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at
his person or corpse.
Cruelty includes the situation where the victim is already dead and yet, acts were committed which would
decry or scoff the corpse of the victim. The crime becomes murder.
Hence, this is not actually limited to cruelty. It goes beyond that because even if the victim is already a
corpse when the acts deliberately augmenting the wrong done to him were committed, the killing is still
qualified to murder although the acts done no longer amount to cruelty.
Under Article 14, the generic aggravating circumstance of cruelty requires that the victim be alive, when
the cruel wounds were inflicted and, therefore, must be evidence to that effect. Yet, in murder, aside from
cruelty, any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to
murder.
Illustration:
Two people engaged in a quarrel and they hacked each other, one killing the other. Up to that point, the
crime is homicide. However, if the killer tried to dismember the different parts of the body of the victim,
indicative of an intention to scoff at or decry or humiliate the corpse of the victim, then what would have
murder because this circumstance is recognized under Article 248, even though it was inflicted or was
committed when the victim was already dead.

The following are holdings of the Supreme Court with respect to the crime of murder:
(1)

Killing of a child of tender age is murder qualified by treachery because the weakness of the child due to his
tender age results in the absence of any danger to the aggressor.

(2)

Evident premeditation is absorbed in price, reward or promise, if without the premeditation the inductor
would not have induced the other to commit the act but not as regards the one induced.

(3

Abuse of superior strength is inherent in and comprehended by the circumstance of treachery or forms part
of treachery.

(4)

Treachery is inherent in poison.

(5)

Where one of the accused, who were charged with murder, was the wife of the deceased but here
relationship to the deceased was not alleged in the information, she also should be convicted of murder but
the relationship should be appreciated as aggravating.

(6)

Killing of the victims hit by hand grenade thrown at them is murder qualified by explosion not by treachery.

(7)

Where the accused housemaid gagged a three year old boy, son of her master, with stockings, placed him in a
box with head down and legs upward and covered the box with some sacks and other boxes, and the child
instantly died because of suffocation, and then the accused demanded ransom from the parents, such did not
convert the offense into kidnapping with murder. The accused was well aware that the child could be
suffocated to death in a few minutes after she left. Ransom was only a part of the diabolical scheme to
murder the child, to conceal his body and then demand money before discovery of the body.

The essence of kidnapping or serious illegal detention is the actual confinement or restraint of the victim or
deprivation of his liberty. If there is no showing that the accused intended to deprive their victims of their liberty for
some time and there being no appreciable interval between their being taken and their being shot, murder and not
kidnapping with murder is committed.

Article 249
HOMICIDE
ELEMENTS:
1. That a person was killed.
2.

That the accused killed him without any justifying circumstances.

3.

That the accused had the intention to kill, which is presumed.

4.

That the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide
or infanticide.

Notes:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Homicide is the unlawful killing of a person not constituting murder, parricide or infanticide.
1.

Intent to kill is conclusively presumed when death resulted. Hence, evidence of intent to kill is required only
in attempted or frustrated homicide

2.

In all crimes against persons in which the death of the victim is an element, there must be satisfactory
evidence of (1) the fact of death and (2) the identity of the victim

Distinction between homicide and physical injuries:


In attempted or frustrated homicide, there is intent to kill.
In physical injuries, there is none. However, if as a result of the physical injuries inflicted, the victim died, the crime
will be homicide because the law punishes the result, and not the intent of the act.
The following are holdings of the Supreme Court with respect to the crime of homicide:
(1)

Physical injuries are included as one of the essential elements of frustrated homicide.

(2)

If the deceased received two wounds from two persons acting independently of each other and the wound
inflicted by either could have caused death, both of them are liable for the death of the victim and each of
them is guilty of homicide.

(3)

If the injuries were mortal but were only due to negligence, the crime committed will be serious physical
injuries through reckless imprudence as the element of intent to kill in frustrated homicide is incompatible
with negligence or imprudence.

(4)

Where the intent to kill is not manifest, the crime committed has been generally considered as physical
injuries and not attempted or frustrated murder or homicide.

(5)

When several assailants not acting in conspiracy inflicted wounds on a victim but it cannot be determined
who inflicted which would which caused the death of the victim, all are liable for the victims death.

Note that while it is possible to have a crime of homicide through reckless imprudence, it is not possible to have a
crime of frustrated homicide through reckless imprudence.
If a boxer killed his opponent in a boxing bout duly licensed by the Government without any violation of the governing
rules and regulations, there is no Homicide to speak of. If he hit his opponent below the belt without any intention to
do so, it is Homicide Through Reckless Imprudence if the latter died as a result. If he intentionally hit his opponent on
that part of his body causing the death, the crime is Homicide.
The shooting of a peace officer who was fully aware of the risks in pursuing the malefactors when done in a spur of the
moment is only Homicide. (People vs. Porras, 255 SCRA 514).

Common misconception on the meaning of corpus delicti.


Corpus delicti means body of the crime. It does not refer to the body of the murdered person. In all crimes against
persons in which the death of the victim is an element of the crime, there must be proof of the fact of death and
identity of the victim. (Cortez vs. Court of Appeals, 162 SCRA 139)
Article 250
PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE
Article 251
DEATH IN A TUMULTOUS AFFRAY
ELEMENTS:
1. That there be several persons.
2.

That they did not compose groups organized for the common purpose of assaulting and attacking each
other reciprocally.

3.

That these several persons quarreled and assaulted one another in a confused and tumultuous manner.

4.

That someone was killed in the course of the affray.

5.

That it cannot be ascertained who actually killed the deceased.

6.

That the person or persons who inflicted serious physical injuries or who used violence can be identified.

Notes:
1.

Tumultuous affray exists when at least 4 persons take part in it

2.

When there are 2 identified groups of men who assaulted each other, there is no tumultuous affray

3.

Persons liable are:


a. person/s who inflicted serious physical injuries

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b.

if it is not known who inflicted serious physical injuries on the deceased, all persons who used violence
upon the person of the victim

If those who actually killed the victim can be determined, they will be the ones to be held liable, and those who
inflicted serious or less serious or slight physical injuries shall be punished for said corresponding offenses provided no
conspiracy is established with the killers.
Tumultuous affray simply means a commotion in a tumultuous and confused manner, to such an extent that it would
not be possible to identify who the killer is if death results, or who inflicted the serious physical injury, but the person
or persons who used violence are known.
It is not a tumultuous affray which brings about the crime; it is the inability to ascertain actual perpetrator. It is
necessary that the very person who caused the death can not be known, not that he can not be identified. Because if
he is known but only his identity is not known, then he will be charged for the crime of homicide or murder under a
fictitious name and not death in a tumultuous affray. If there is a conspiracy, this crime is not committed.
To be considered death in a tumultuous affray, there must be:
(1)

a quarrel, a free-for-all, which should not involve organized group; and

(2)

someone who is injured or killed because of the fight.

The person killed in the affray need not be one of the participants.
As long as it cannot be determined who killed the victim, all of those persons who inflicted serious physical injuries will
be collectively answerable for the death of that fellow.
The Revised Penal Code sets priorities as to who may be liable for the death or physical injury in tumultuous
affray:
(1)

The persons who inflicted serious physical injury upon the victim;

(2)

If they could not be known, then anyone who may have employed violence on that person will answer for his
death.

(3)

If nobody could still be traced to have employed violence upon the victim, nobody will answer. The crimes
committed might be disturbance of public order, or if participants are armed, it could be tumultuous
disturbance, or if property was destroyed, it could be malicious mischief.

Article 252
PHYSICAL INJURIES INFLICTED IN A TUMULTOUS AFFRAY
ELEMENTS:
1. that there is a tumultuous affray as referred to in the preceding article.
2.

That a participant or some participants thereof suffer serious physical injuries or physical injuries of a less
serious nature only.

3.

that the person responsible therefor cannot be identified.

4.

That all those who appear to have used violence upon the person of the offended party are known.

Unlike in Article 251, where the victim need not be one of the participants , the injured party in the crime of physical
injuries inflicted in tumultuous affray must be one or some of those involved in the quarrel.
In physical injuries caused in a tumultuous affray, the conditions are also the same. But you do not have a crime of
physical injuries resulting from a tumultuous affray if the physical injury is only slight. The physical injury should be
serious or less serious and resulting from a tumultuous affray. So anyone who may have employed violence will answer
for such serious or less serious physical injury.
If the physical injury sustained is only slight, this is considered as inherent in a tumultuous affray. The offended party
cannot complain if he cannot identify who inflicted the slight physical injuries on him.
Note that in slight physical injuries is inflicted in the tumultuous affray and the identity of the offender is established,
the provisions of this article will not be observed. Instead, the offender shall be prosecuted in the ordinary course of
law.

Article 253
GIVING ASSISTANCE TO SUICIDE

1.

Acts punishable:
Assisting another to commit suicide, whether the suicide is consummated or not

2.

Lending his assistance to another to commit suicide to the extent of doing the killing himself

Notes:
Giving assistance to suicide means giving means (arms, poison, etc.) or whatever manner of positive and direct
cooperation (intellectual aid, suggestions regarding the mode of committing suicide, etc.).

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
1.

A person who attempts to commit suicide is not criminally liable

In this crime, the intention must be for the person who is asking the assistance of another to commit suicide.
If the intention is not to commit suicide, as when he just wanted to have a picture taken of him to impress upon the
world that he is committing suicide because he is not satisfied with the government, the crime is held to be inciting to
sedition.
He becomes a co-conspirator in the crime of inciting to sedition, but not of giving assistance to suicide because the
assistance must be given to one who is really determined to commit suicide.
2.

A pregnant woman who tried to commit suicide by means of poison but instead of dying, the fetus in her
womb was expelled, is not liable for abortion

3.

Assistance to suicide is different from mercy-killing. Euthanasia/mercy-killing is the practice of painlessly


putting to death a person suffering from some incurable disease. In this case, the person does not want to
die. A doctor who resorts to euthanasia may be held liable for murder

If the person does the killing himself, the penalty is similar to that of homicide, which is reclusion temporal. There can
be no qualifying circumstance because the determination to die must come from the victim. This does not
contemplate euthanasia or mercy killing where the crime is murder, if without consent; if with consent, covered by
Article 253.
In mercy killing, the victim is not in a position to commit suicide. Whoever would heed his advice is not really giving
assistance to suicide but doing the killing himself. In giving assistance to suicide, the principal actor is the person
committing the suicide.
Both in euthanasia and suicide, the intention to the end life comes from the victim himself; otherwise the article does
not apply. The victim must persistently induce the offender to end his life.
4.

Penalty is mitigated if suicide is not successful

Even if the suicide did not materialize, the person giving assistance to suicide is also liable but the penalty shall be one
or two degrees lower depending on whether it is frustrated or attempted suicide.
The following are holdings of the Supreme Court with respect to this crime:
(1)

The crime is frustrated if the offender gives the assistance by doing the killing himself as firing upon the
head of the victim but who did not die due to medical assistance.

(2)

The person attempting to commit suicide is not liable if he survives. The accused is liable if he kills the
victim, his sweetheart, because of a suicide pact.

Article 254
DISCHARGE OF FIREARMS
ELEMENTS:
1. that the offender discharges a firearm against or at another person.
2.

That the offender has no intention to kill that person.

Notes:

This crime cannot be committed through imprudence because it requires that the discharge must be directed at
another.
1. The offender must shoot at another with any firearm without intention of killing him. If the firearm is not
discharged at a person, the act is not punished under this article
If the firearm is directed at a person and the trigger was pressed but did not fire, the crime is frustrated discharge of
firearm.
If the discharge is not directed at a person, the crime may constitute alarm and scandal.
2.

A discharge towards the house of the victim is not discharge of firearm. On the other hand, firing a gun
against the house of the offended party at random, not knowing in what part of the house the people were,
it is only alarm under art 155.

3.

Usually, the purpose of the offender is only to intimidate or frighten the offended party

4.

Intent to kill is negated by the fact that the distance between the victim and the offender is 200 yards

5.

A person can be held liable for discharge even if the gun was not pointed at the offended party when it fired
for as long as it was initially aimed at or against the offended party

The following are holdings of the Supreme Court with respect to this crime:
(1)

If serious physical injuries resulted from discharge, the crime committed is the complex crime of serious
physical injury with illegal discharge of firearm, or if less serious physical injury, the complex crime of less
serious physical injury with illegal discharge of firearm will apply.

(2)

Firing a gun at a person even if merely to frighten him constitutes illegal discharge of firearm.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
The gun used in the crime must be licensed, or the person using the firearm must be authorized to carry the same,
otherwise, in addition to the crime punished under this article, accused may also be held liable for illegal possession of
firearm under Republic Act No. 1866 as amended by Republic Act No. 8294.

Article 255
INFANTICIDE
ELEMENTS:
1. That a child was killed.
2.

That the deceased child was less than three days (72 hours) of age.

3.

That the accused killed the said child.

Notes:
1.

When the offender is the father, mother or legitimate ascendant, he shall suffer the penalty prescribed for
parricide. If the offender is any other person, the penalty is that for murder. In either case, the proper
qualification for the offense is infanticide

Even if the killer is the mother or the father or the legitimate grandparents, the crime is still Infanticide and not
Parricide. The penalty however, is that for Parricide.
Illustration:
An unmarried woman, A, gave birth to a child, B. To conceal her dishonor, A conspired with C to dispose of the child.
C agreed and killed the child B by burying the child somewhere.
If the child was killed when the age of the child was three days old and above already, the crime of A is parricide. The
fact that the killing was done to conceal her dishonor will not mitigate the criminal liability anymore because
concealment of dishonor in killing the child is not mitigating in parricide.
If the crime committed by A is parricide because the age of the child is three days old or above, the crime of the coconspirator C is murder. It is not parricide because he is not related to the victim.
If the child is less than three days old when killed, both the mother and the stranger commits infanticide because
infanticide is not predicated on the relation of the offender to the offended party but on the age of the child. In such
a case, concealment of dishonor as a motive for the mother to have the child killed is mitigating.
2.

When infanticide is committed by the mother or maternal grandmother in order to conceal the dishonor, such
fact is only mitigating

3.

The delinquent mother who claims that she committed the offense to conceal the dishonor must be of good
reputation. Hence, if she is a prostitute, she is not entitled to a lesser penalty because she has no honor to
conceal

Concealment of dishonor is not an element of infanticide. It merely lowers the penalty. If the child is abandoned
without any intent to kill and death results as a consequence, the crime committed is not infanticide but abandonment
under Article 276.
If the purpose of the mother is to conceal her dishonor, infanticide through imprudence is not committed because the
purpose of concealing the dishonor is incompatible with the absence of malice in culpable felonies.
4.

There is no infanticide when the child was born dead, or although born alive it could not sustain an
independent life when it was killed

In our study of persons and family relations, we have learned that birth determines personality. So fetus becomes a
person by the legal fact of birth. The Civil Code provides that, if the fetus had an intra-uterine life of less than seven
(7) months, it will be considered born only if it survives 24 hours after the umbilical cord is cut. If such fetus is killed
within the 24-hour period, we have to determine if it would have survived or it would have died nonetheless, had it not
been killed.
A legal problem occurs when a fetus having an intra-uterine life of less than 7 months, born alive, is killed within 24
hours from the time the umbilical cord is cut. This is so because there is difficulty of determining whether the crime
committed is infanticide or abortion. In such a situation, the court may avail of expert testimony in order to help it
arrive at a conclusion. So, if it is shown that the infant cannot survive within 24 hours, the crime committed is
abortion; otherwise if it can survive, the crime would be infanticide.
Article 256
INTENTIONAL ABORTION
ELEMENTS:
1. That there is a pregnant woman.
2.

That violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such
pregnant woman.

3.

That as a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the
fetus dies, either in the womb or after having been expelled therefrom.

4.

That the abortion is intended.

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Ortega Notes:
Acts punished
1.

Using any violence upon the person of the pregnant woman;

2.

Acting, but without using violence, without the consent of the woman. (By administering drugs or beverages
upon such pregnant woman without her consent.)

3.

Acting (by administering drugs or beverages), with the consent of the pregnant woman.

Abortion is the violent expulsion of a fetus from the maternal womb. If the fetus has been delivered but it could not
subsist by itself, it is still a fetus and not a person. Thus, if it is killed, the crime committed is abortion not infanticide.
Distinction between infanticide and abortion
It is infanticide if the victim is already a person less that three days old or 72 hours and is viable or capable of living
separately from the mothers womb.
It is abortion if the victim is not viable but remains to be a fetus.
Abortion is not a crime against the woman but against the fetus. If mother as a consequence of abortion suffers death
or physical injuries, you have a complex crime of murder or physical injuries and abortion.
In intentional abortion, the offender must know of the pregnancy because the particular criminal intention is to cause
an abortion. Therefore, the offender must have known of the pregnancy for otherwise, he would not try an abortion.
If the woman turns out not to be pregnant and someone performs an abortion upon her, he is liable for an impossible
crime if the woman suffers no physical injury. If she does, the crime will be homicide, serious physical injuries, etc.
Under the Article 40 of the Civil Code, birth determines personality. A person is considered born at the time when the
umbilical cord is cut. He then acquires a personality separate from the mother.
But even though the umbilical cord has been cut, Article 41 of the Civil Code provides that if the fetus had an intrauterine life of less than seven months, it must survive at least 24 hours after the umbilical cord is cut for it to be
considered born.
Illustration:
A mother delivered an offspring which had an intra-uterine life of seven months. Before the umbilical cord is cut, the
child was killed.
If it could be shown that had the umbilical cord been cut, that child, if not killed, would have survived beyond 24
hours, the crime is infanticide because that conceived child is already considered born.
If it could be shown that the child, if not killed, would not have survived beyond 24 hours, the crime is abortion
because what was killed was a fetus only.
In abortion, the concealment of dishonor as a motive of the mother to commit the abortion upon herself is mitigating.
It will also mitigate the liability of the maternal grandparent of the victim the mother of the pregnant woman if the
abortion was done with the consent of the pregnant woman.
If the abortion was done by the mother of the pregnant woman without the consent of the woman herself, even if it
was done to conceal dishonor, that circumstance will not mitigate her criminal liability.
But if those who performed the abortion are the parents of the pregnant woman, or either of them, and the pregnant
woman consented for the purpose of concealing her dishonor, the penalty is the same as that imposed upon the
woman who practiced the abortion upon herself .
Frustrated abortion is committed if the fetus that is expelled is viable and, therefore, not dead as abortion did not
result despite the employment of adequate and sufficient means to make the pregnant woman abort. If the means are
not sufficient or adequate, the crime would be an impossible crime of abortion. In consummated abortion, the fetus
must be dead.
One who persuades her sister to abort is a co-principal, and one who looks for a physician to make his sweetheart abort
is an accomplice. The physician will be punished under Article 259 of the Revised Penal Code.
Article 257
UNINTENTIONAL ABORTION
ELEMENTS:
1. That there is a pregnant woman.
2.

That violence is used upon such pregnant woman without intending an abortion.

3.

That the violence is intentionally exerted.

4.

That as a result of the violence that fetus dies, either in the womb or after having been expelled
therefrom.

Notes:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third person upon the
person of the pregnant woman. Mere intimidation is not enough unless the degree of intimidation already
approximates violence.
If the pregnant woman aborted because of intimidation, the crime committed is not unintentional abortion because
there is no violence; the crime committed is light threats.
If the pregnant woman was killed by violence by her husband, the crime committed is the complex crime of parricide
with unlawful abortion.
While there is no intention on the part of the accused to cause an abortion, nonetheless, the violence that he employs
on the pregnant woman must be intentional. In other words, only the abortion is unintended.
1.

Unintentional abortion can also be committed through negligence

Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary.
Illustration:
A quarrel ensued between A, husband, and B, wife. A became so angry that he struck B, who was then pregnant, with a
soft drink bottle on the hip. Abortion resulted and B died.
Take note that while unintentional abortion appears to be a crime that should be committed with deliberate intent
because of the requirement that the violence employed on the victim must be intentional, nevertheless, if the
circumstances of the case justifies the application of the other means of committing a felony (like culpa), then the
same should be applied but the penalty will not be the penalty provided under Article 257. Instead, the offender shall
be subject to the penalty prescribed for simple or reckless imprudence under Article 365.
2. The accused can only be held liable if he knew that the woman was pregnant
- DEBATABLE
In US v. Jeffry, 15 Phil. 391, the Supreme Court said that knowledge of pregnancy of the offended party is not
necessary. In People v. Carnaso, decided on April 7, 1964, however, the Supreme Court held that knowledge of
pregnancy is required in unintentional abortion.
Criticism:
Under Article 4, paragraph 1 of the Revised Penal Code, any person committing a felony is criminally liable for all the
direct, natural, and logical consequences of his felonious acts although it may be different from that which is
intended. The act of employing violence or physical force upon the woman is already a felony. It is not material if
offender knew about the woman being pregnant or not.
If the act of violence is not felonious, that is, act of self-defense, and there is no knowledge of the womans pregnancy,
there is no liability. If the act of violence is not felonious, but there is knowledge of the womans pregnancy, the
offender is liable for unintentional abortion.
Illustration:
The act of pushing another causing her to fall is a felonious act and could result in physical injuries. Correspondingly, if
not only physical injuries were sustained but abortion also resulted, the felonious act of pushing is the proximate cause
of the unintentional abortion.
3.

If there is no intention to cause abortion and neither was violence exerted, arts 256 and 257 does not apply
Questions & Answers

1.
A pregnant woman decided to commit suicide. She jumped out of a window of a building but she
landed on a passerby. She did not die but an abortion followed. Is she liable for unintentional abortion?
No. What is contemplated in unintentional abortion is that the force or violence must come from another. If it
was the woman doing the violence upon herself, it must be to bring about an abortion, and therefore, the crime
will be intentional abortion. In this case, where the woman tried to commit suicide, the act of trying to commit
suicide is not a felony under the Revised Penal Code. The one penalized in suicide is the one giving assistance and
not the person trying to commit suicide.
2.
If the abortive drug used in abortion is a prohibited drug or regulated drug under Presidential
Decree No. 6425 (The Dangerous Drugs Act of 1972), as amended, what are the crimes committed?
The crimes committed are (1) intentional abortion; and (2) violation of the Dangerous Drugs Act of 1972.
Article 258
ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS
ELEMENTS :
1. That there is a pregnant woman who has suffered an abortion.
2.

That the abortion is intended.

3.

That the abortion is caused by


a.

the pregnant woman herself

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

Notes:
1.

2.

b.

any other person, with her consent, or

c.

any of her parents, with her consent for the purpose of concealing her dishonor.

Liability of the pregnant woman is mitigated if the purpose is to conceal her dishonor. However, there is no
Mitigation for the parents of the pregnant women even if their purpose is to conceal their daughters
dishonor
In infanticide, parents can avail of the mitigating circumstance of concealing the dishonor of their daughter.
This is not so for art 258

Article 259
ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES
ELEMENTS:
1. That there is a pregnant woman who has suffered an abortion.
2.

That the abortion is intended.

3.

That the offender, who must be a physician or midwife, causes or assists in causing the abortion.

4.

That said physician or midwife takes advantage of his or her scientific knowledge or skill.

Notes:
1.

2.

It is not necessary that the pharmacist knew that the abortive would be used to cause abortion. What is
punished is the act of dispensing an abortive without the proper prescription . It is not necessary that the
abortive be actually used
If the pharmacist knew that the abortive would be used to cause abortion and abortion results, he is liable as
an accomplice

If the abortion is produced by a physician to save the life of the mother, there is no liability. This is known as a
therapeutic abortion. But abortion without medical necessity to warrant it is punishable even with the consent of the
woman or her husband.
Illustration:
A woman who is pregnant got sick. The doctor administered a medicine which resulted in Abortion.
committed was unintentional abortion through negligence or imprudence.

The crime

Question & Answer


What is the liability of a physician who aborts the fetus to save the life of the mother?
None. This is a case of therapeutic abortion which is done out of a state of necessity. Therefore, the
requisites under Article 11, paragraph 4, of the Revised Penal Code must be present. There must be no other practical
or less harmful means of saving the life of the mother to make the killing justified.
Article 260
RESPONSIBILITY OF PARTICIPANTS IN A DUEL
Acts punished:
1. Killing ones adversary in a duel
2.

Inflicting upon the adversary serious physical injuries

3.

Making a combat although no physical injuries have been inflicted

Persons liable:
1. Principals person who killed or inflicted physical injuries upon his adversary, or both combatants in any other
cases
2.

Accomplices as seconds

The person who killed or injured his adversary. If both survive, both will be liable for the crime of duel as principals by
direct participation. The seconds will be held liable as accomplices.
Notes:
1. Duel: a formal or regular combat previously concerted between 2 parties in the presence of 2 or more seconds of
lawful age on each side, who make the selection of arms and fix all the other conditions of the fight
2.

If death results, the penalty is the same as that for homicide

While the agreement is to fight to the death, the law will disregard the intent to kill, if only physical injuries is
inflicted. The crime will not be classified as attempted or frustrated homicide.
If the accused and the deceased, after a verbal heated argument in a bar, left the place at the same time and pursuant
to their agreement, went to the plaza to fight each other to death with knives which they bought on the way, the facts

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Elements and Notes in Criminal Law Book II by RENE CALLANTA
do not constitute the crime of dueling since there were no seconds who fixed the conditions of the fight in a more or
less formal manner. If one was killed, the crime committed would be Homicide.
There is no such crime nowadays because people hit each other even without entering into any pre-conceived
agreement. This is an obsolete provision.
Article 261
CHALLENGING TO A DUEL
Acts punishable:
1. Challenging another to a duel
2.

Inciting another to give or accept a challenge to a duel

3.

Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel

Persons liable:
1. Challenger
2.

Instigators

If the challenge is only to fight, without the challenger having in mind a formal combat to be agreed upon with the
assistance of seconds as contemplated under the law, the crime committed will only be grave or light threat as the
case may be.
Illustration:
If one challenges another to a duel by shouting Come down, Olympia, let us measure your prowess. We will see
whose intestines will come out. You are a coward if you do not come down, the crime of challenging to a duel is not
committed. What is committed is the crime of light threats under Article 285, paragraph 1 of the Revised Penal Code.

PHYSICAL INJURIES
Article 262
MUTILATION
Kinds of Mutilation
1.

Intentionally mutilating another by depriving him, totally or partially, of some essential organ for
reproduction

2.

Intentionally making another mutilation, i.e. lopping, clipping off any part of the body of the offended party,
other than the essential organ for reproduction, to deprive him of that part of the body

Elements:
1. There be a castration i.e. mutilation of organs necessary for generation
2.

Mutilation is caused purposely and deliberately

Notes:
Mutilation is the lopping or clipping off of some part of the body.
The intent to deliberately cut off the particular part of the body that was removed from the offended party must be
established. If there is no intent to deprive victim of particular part of body, the crime is only serious physical injury.
The common mistake is to associate this with the reproductive organs only. Mutilation includes any part of the human
body that is not susceptible to grow again.
If what was cut off was a reproductive organ, the penalty is much higher than that for homicide.
This cannot be committed through criminal negligence.
1.

In the first kind of mutilation, the castration must be made purposely. Otherwise, it will be considered as
mutilation of the second kind

2.

Mayhem: refers to any other intentional mutilation

Article 263
SERIOUS PHYSICAL INJURIES
How Committed
1. Wounding
2.

Beating

3.

Assaulting

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4.

Administering injurious substances

In one case, the accused, while conversing with the offended party, drew the latters bolo from its scabbard. The
offended party caught hold of the edge of the blade of his bolo and wounded himself. It was held that since the
accused did not wound, beat or assault the offended party, he can not be guilty of serious physical injuries.
What are serious physical injuries:
1.

Injured person becomes insane, imbecile, impotent or blind

2.

Injured person

3.

a.

loses the use of speech or the power to hear or to smell, loses an eye, a hand, foot, arm or leg

b.

loses the use of any such member

c.

becomes incapacitated for the work in which he had been habitually engaged

Injured person

4.

a.

becomes deformed

b.

loses any other member of his body

c.

loses the use thereof

d.

becomes ill or incapacitated for the performance of the work in which he had been habitually
engaged in for more than 90 days

Injured person becomes ill or incapacitated for labor for more than 30 days (but not more than 90 days)

Notes:
The crime of physical injuries is a crime of result because under our laws the crime of physical injuries is based on the
gravity of the injury sustained. So this crime is always consummated.
The reason why there is no attempted or frustrated physical injuries is because the crime of physical injuries is
determined on the gravity of the injury. As long as the injury is not there, there can be no attempted or frustrated
stage thereof.
1.

Serious physical injuries may be committed through reckless imprudence or simple imprudence

2.

There must be no intent to kill

3.

Impotent should include inability to copulate and sterility

4.

Blindness requires lost of vision in both eyes. Mere weakness in vision is not contemplated

5.

Loss of power to hear must involve both ears. Otherwise, it will be considered as serious physical injuries
under par 3

6.

Loss of use of hand or incapacity of usual work in par 2 must be permanent

7.

Par 2 refers to principal members of the body. Par 3 on the other hand, covers any other member which is not
a principal part of the body. In this respect, a front tooth is considered as a member of the body, other than
a principal member

8.

Deformity: means physical ugliness, permanent and definite abnormality. Not curable by natural means or by
nature. It must be conspicuous and visible. Thus, if the scar is usually covered by a dress, it would not be
conspicuous and visible

9.

The loss of 3 incisors is a visible deformity. Loss of one incisor is not. However, loss of one tooth which
impaired appearance is a deformity

10. Deformity by loss of teeth refers to injury which cannot be impaired by the action of the nature
11. Loss of both outer ears constitutes deformity and also loss of the power to hear. Meanwhile, loss of the lobule
of the ear is only a deformity
12. Loss of the index and middle fingers is either a deformity or loss of a member, not a principal one of his body
or use of the same
13. Loss of the power to hear in the right ear is considered as merely loss of use of some other part of the body
14. If the injury would require medical attendance for more than 30 days, the illness of the offended party may
be considered as lasting more than 30 days. The fact that there was medical attendance for that period of
time shows that the injuries were not cured for that length of time
15. Under par 4, all that is required is illness or incapacity, not medical attendance
16. In determining incapacity, the injured party must have an avocation at the time of the injury. Work:
includes studies or preparation for a profession

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17. When the category of the offense of serious physical injuries depends on the period of the illness or
incapacity for labor, there must be evidence of the length of that period. Otherwise, the offense will only be
considered as slight physical injuries
18. There is no incapacity if the injured party could still engage in his work although less effectively than before
19. Serious physical injuries is qualified when the crime is committed against the same persons enumerated in
the article on parricide or when it is attended by any of the circumstances defining the crime of murder.
However, serious physical injuries resulting from excessive chastisement by parents is not qualified serious
physical injuries
Ortega Notes:
Classification of physical injuries:
(1)

Between slight physical injuries and less serious physical injuries, you have a duration of one to nine days if
slight physical injuries; or 10 days to 20 days if less serious physical injuries. Consider the duration of healing
and treatment.
The significant part here is between slight physical injuries and less serious physical injuries. You will
consider not only the healing duration of the injury but also the medical attendance required to treat the
injury. So the healing duration may be one to nine days, but if the medical treatment continues beyond nine
days, the physical injuries would already qualify as less serious physical injuries. The medical treatment may
have lasted for nine days, but if the offended party is still incapacitated for labor beyond nine days, the
physical injuries are already considered less serious physical injuries.

(2)

Between less serious physical injuries and serious physical injuries, you do not consider the period of
medical treatment. You only consider the period when the offended party is rendered incapacitated for
labor.
If the offended party is incapacitated to work for less than 30 days, even though the treatment continued
beyond 30 days, the physical injuries are only considered less serious because for purposes of classifying the
physical injuries as serious, you do not consider the period of medical treatment. You only consider the
period of incapacity from work.

(3)

When the injury created a deformity upon the offended party, you disregard the healing duration or the
period of medical treatment involved. At once, it is considered serious physical injuries.
So even though the deformity may not have incapacitated the offended party from work, or even though the
medical treatment did not go beyond nine days, that deformity will bring about the crime of serious physical
injuries.
Deformity requires the concurrence of the following conditions:
(1)

The injury must produce ugliness;

(2)

It must be visible;

(3)

The ugliness will not disappear through natural healing process.

Illustration:
Loss of molar tooth This is not deformity as it is not visible.
Loss of permanent front tooth This is deformity as it is visible and permanent.
Loss of milk front tooth This is not deformity as it is visible but will be naturally replaced.
Question & Answer
The offender threw acid on the face of the offended party. Were it not for timely medical attention, a
deformity would have been produced on the face of the victim. After the plastic surgery, the offended party was
more handsome than before the injury. What crime was committed? In what stage was it committed?
The crime is serious physical injuries because the problem itself states that the injury would have produced a
deformity. The fact that the plastic surgery removed the deformity is immaterial because in law what is
considered is not the artificial treatment but the natural healing process.
In a case decided by the Supreme Court, accused was charged with serious physical injuries because the injuries
produced a scar. He was convicted under Article 263 (4). He appealed because, in the course of the trial, the scar
disappeared. It was held that accused can not be convicted of serious physical injuries. He is liable only for
slight physical injuries because the victim was not incapacitated, and there was no evidence that the medical
treatment lasted for more than nine days.
Serious physical injuries is punished with higher penalties in the following cases:
(1)

If it is committed against any of the persons referred to in the crime of parricide under Article 246;

(2)

If any of the circumstances qualifying murder attended its commission.

Thus, a father who inflicts serious physical injuries upon his son will be liable for qualified serious physical injuries.

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Republic Act No. 8049 (The Anti-Hazing Law)
Hazing -- This is any initiation rite or practice which is a prerequisite for admission into membership in a fraternity or
sorority or any organization which places the neophyte or applicant in some embarrassing or humiliating situations or
otherwise subjecting him to physical or psychological suffering of injury. These do not include any physical, mental,
psychological testing and training procedure and practice to determine and enhance the physical and psychological
fitness of the prospective regular members of the below.
Organizations include any club or AFP, PNP, PMA or officer or cadet corps of the CMT or CAT.
Section 2 requires a written notice to school authorities from the head of the organization seven days prior to the
rites and should not exceed three days in duration.
Section 3 requires supervision by head of the school or the organization of the rites.
Section 4 qualifies the crime if rape, sodomy or mutilation results therefrom, if the person becomes insane, an
imbecile, or impotent or blind because of such, if the person loses the use of speech or the power to hear or smell or
an eye, a foot, an arm or a leg, or the use of any such member or any of the serious physical injuries or the less serious
physical injuries. Also if the victim is below 12, or becomes incapacitated for the work he habitually engages in for 30,
10, 1-9 days.
It holds the parents, school authorities who consented or who had actual knowledge if they did nothing to prevent it,
officers and members who planned, knowingly cooperated or were present, present alumni of the organization, owner
of the place where such occurred liable.
Makes presence a prima facie presumption of guilt for such.

Article 264
ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES
ELEMENTS:
1.

That the offender inflicted upon another person any serious physical injury

2.

That it was done knowingly administering to him any injurious substances or beverages or by taking
advantage of his weakness of mind of credulity

3.

He had no intent to kill

Notes:
The article under consideration does not deal with a crime. It refers to means of committing serious physical injuries.
1.

It is frustrated murder when there is intent to kill

2.

Administering means introducing into the body the substance, thus throwing of the acid in the face is not
contemplated

Article 265
LESS SERIOUS PHYSICAL INJURIES
ELEMENTS:
1.

That the offended party is incapacitated for labor for 10 days or more (but not more than 30 days),
or needs medical attendance for the same period of time

2.

That the physical injuries must not be those described in the preceding articles

Notes:
1. Circumstances qualifying the offense:

2.

a.

when there is manifest intent to insult or offend the injured person

b.

when there are circumstances adding ignominy to the offense

c.

when the victim is either the offenders parents, ascendants, guardians, curators or teachers

d.

when the victim is a person of rank or person in authority, provided the crime is not direct assault

It falls under this article even if there was no incapacity but the medical treatment was for 13 days

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In this article, the offended party is incapacitated from work for ten (10) days or more but not more than thirty (30)
days. If the injury causes the illness of the victim, the healing duration must be more than nine (9) days but not more
than thirty (30) days.
Article 265 is an exception to Article 48 in relation to complex crimes as the latter only takes place in cases where the
Revised Penal Code has no specific provision penalizing the same with a definite, specific penalty. Hence, there is no
complex crime of slander by deed with less serious physical injuries but only less serious physical injuries if the act
which was committed produced the less serious physical injuries with the manifest intent to insult or offend the
offended party, or under circumstances adding ignominy to the offense.
Article 266
SLIGHT PHYSICAL INJURIES
3 Kinds:
1.

That which incapacitated the offended party for labor from 1-9 days or required medical attendance
during the same period

2.

That which did not prevent the offended party from engaging in his habitual work or which did not
require medical attendance (ex. Black-eye)

3.

Ill-treatment of another by deed without causing any injury (ex. slapping but without causing dishonor)

This involves even ill-treatment where there is no sign of injury requiring medical treatment.
Slapping the offended party is a form of ill-treatment which is a form of slight physical injuries.
But if the slapping is done to cast dishonor upon the person slapped, the crime is slander by deed. If the slapping was
done without the intention of casting dishonor, or to humiliate or embarrass the offended party out of a quarrel or
anger, the crime is still ill-treatment or slight physical injuries.
The crime is slight physical injury if there is no proof as to the period of the offended partys incapacity for labor or of
the required medical attendance.
Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act), in
relation to murder, mutilation or injuries to a child
The last paragraph of Article VI of Republic Act No. 7610, provides:
For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262 (2) and 263
(1) of Act No 3815, as amended of the Revised Penal Code for the crimes of murder, homicide, other intentional
mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve
years of age.
The provisions of Republic Act No. 7160 modified the provisions of the Revised Penal Code in so far as the victim of the
felonies referred to is under 12 years of age. The clear intention is to punish the said crimes with a higher penalty
when the victim is a child of tender age. Incidentally, the reference to Article 249 of the Code which defines and
penalizes the crime of homicide were the victim is under 12 years old is an error. Killing a child under 12 is murder, not
homicide, because the victim is under no position to defend himself as held in the case of People v. Ganohon, 196
SCRA 431.
For murder, the penalty provided by the Code, as amended by Republic Act No. 7659, is reclusion perpetua to death
higher than what Republic Act no. 7610 provides. Accordingly, insofar as the crime is murder, Article 248 of the Code,
as amended, shall govern even if the victim was under 12 years of age. It is only in respect of the crimes of intentional
mutilation in paragraph 2 of Article 262 and of serious physical injuries in paragraph 1 of Article 263 of the Code that
the quoted provision of Republic Act No. 7160 may be applied for the higher penalty when the victim is under 12 years
old.

RAPE
ART 266-A
RAPE
The Anti-Rape Law of 1997 (RA 8353) now classified the crime of rape as Crime Against Persons incorporated
into Title 8 of the RPC to be known as Chapter 3
ELEMENTS:
Rape is committed
1. By a man who have carnal knowledge of a woman under any of the following circumstances:

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Elements and Notes in Criminal Law Book II by RENE CALLANTA

2.

a.

through force, threat or intimidation

b.

when the offended party is deprived of reason or otherwise unconscious

c.

by means of fraudulent machination or grave abuse of authority

d.

when the offended party is under 12 years of age or is demented, even though none of the
circumstances mentioned above be present

By any person who, under any of the circumstances mentioned in par 1 hereof, shall commit an act of
sexual assault by inserting
a.

his penis into another persons mouth or anal orifice, or

b.

any instrument or object, into the genital or anal orifice of another person

Rape committed under par 1 is punishable by:


1. reclusion perpetua
2.

reclusion perpetua to DEATH when


a. victim became insane by reason or on the occasion of rape
b.

3.

the rape is attempted and a homicide is committed by reason or on the occasion thereof

DEATH when
a. homicide is committed
b.

victim under 18 years and offender is:


i.
parent
ii.
ascendant
iii.
step-parent
iv.
guardian
v.
relative by consanguinity or affinity with the 3rd civil degree or
vi.
common law spouse of parent of victim

c.

under the custody of the police or military authorities or any law enforcement or penal institution

d.

committed in full view of the spouse, parent or any of the children or other relatives within the 3 rd degree of
consanguinity

e.

victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by
the offender before or at the time of the commission of the crime

f.

a child below 7 years old

g.
h.

offender knows he is afflicted with HIV or AIDS or any other sexually transmissible disease and the virus is
transmitted to the victim
offender; member of the AFP, or para-military units thereof, or the PNP, or any law enforcement agency or
penal institution, when the offender took advantage of his position to facilitate the commission of the
crime

i.

victim suffered permanent physical mutilation or disability

j.

the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and

k.

when the offender knew of the mental disability, emotional disorder and/or physical handicap or the
offended party at the time of the commission of the crime

Rape committed under par 2 is punishable by:


1. prision mayor
2.

prision mayor to reclusion temporal


a. use of deadly weapon or
b.

by two or more persons

3.

reclusion temporal when the victim has become insane

4.

reclusion temporal to reclusion pepetua rape is attempted and homicide is committed

5.

reclusion perpetua homicide is committed by reason or on occasion of rape

6.

reclusion temporal committed with any of the 10 aggravating circumstances mentioned above

Notes:
1. Dividing age in rape:
a. less than 7 yrs old, mandatory death
b.

less than 12 yrs old, statutory rape

c.

less than 18 yrs old and there is relationship (e.g. parent etc); mandatory death

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Because of this amendment which reclassified rape as a crime against persons, an impossible crime may now be
committed in case of rape; that is, if there is inherent impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.
The case of People vs. Orita (G.R. No. 88724, April 3, 1990), laid a new doctrine in Philippine penal law insofar as the
crime of rape is concerned, as it finally did away with frustrated rape and allowed only attempted rape and
consummated rape to remain in our statute books.
The act of touching should be understood as inherently part of the entry of the penis into the labia of the female
organ and not the mere touching alone of the mons pubis or the pudendum. Jurisprudence dictates that the labia
majora (or he outer lips of the female organ) must be entered for rape to be consummated, and not merely for the
penis to stroke the surface of the female organ. Thus, grazing of the surface of the female organ or touching the mons
pubis of the pudendum is not sufficient to constitute rape. ( Pp vs. Campuhan)
Classification of rape
(1)
(2)

Traditional concept under Article 335 carnal knowledge with a woman against her will. The offended
party is always a woman and the offender is always a man.
Sexual assault - committed with an instrument or an object or use of the penis with penetration of mouth or
anal orifice. The offended party or the offender can either be man or woman, that is, if a woman or a man
uses an instrument on anal orifice of male, she or he can be liable for rape.

Since rape is not a private crime anymore, it can be prosecuted even if the woman does not file a complaint.
If carnal knowledge was made possible because of fraudulent machinations and grave abuse of authority, the crime is
rape. This absorbs the crime of qualified and simple seduction when no force or violence was used, but the offender
abused his authority to rape the victim.
Under Article 266-C, the offended woman may pardon the offender through a subsequent valid marriage, the effect of
which would be the extinction of the offenders liability. Similarly, the legal husband may be pardoned by forgiveness
of the wife provided that the marriage is not void ab initio. Obviously, under the new law, the husband may be liable
for rape if his wife does not want to have sex with him. It is enough that there is indication of any amount of
resistance as to make it rape.
Incestuous rape was coined in Supreme Court decisions. It refers to rape committed by an ascendant of the offended
woman. In such cases, the force and intimidation need not be of such nature as would be required in rape cases had
the accused been a stranger. Conversely, the Supreme Court expected that if the offender is not known to the woman,
it is necessary that there be evidence of affirmative resistance put up by the offended woman. Mere no, no is not
enough if the offender is a stranger, although if the rape is incestuous, this is enough.
The new rape law also requires that there be a physical overt act manifesting resistance , if the offended party was in
a situation where he or she is incapable of giving valid consent, this is admissible in evidence to show that carnal
knowledge was against his or her will.
When the victim is below 12 years old, mere sexual intercourse with her is already rape. Even if it was she who
wanted the sexual intercourse, the crime will be rape. This is referred to as statutory rape.
If the victim however is exactly twelve (12) years old (she was raped on her birthday) or more, and there is consent,
there is no rape. However, Republic Act No. 7610, Sec. 5 (b) provides that: Even if the victim is over twelve (12) year
old and the carnal act was with her consent as long as she falls under the classification of a child exploited in
prostitution and other sexual abuse, the crime is rape.
In other cases, there must be force, intimidation, or violence proven to have been exerted to bring about carnal
knowledge or the woman must have been deprived of reason or otherwise unconscious.
It is not necessary that the force or intimidation employed be so great or of such character as could not be resisted it
is only necessary that it be sufficient to consummate the purpose which the accused had in mind. (People vs.
Canada, 253 SCRA 277).
Carnal knowledge with a woman who is asleep constitutes Rape since she was either deprived of reason or otherwise
unconscious at that time. (People vs. Caballero, 61 Phil. 900).
Sexual intercourse with an insane, deranged or mentally deficient, feeble-minded or idiotic woman is Rape pure and
simple. The deprivation of reason contemplated by law need not be complete; mental abnormality or deficiency is
sufficient.
Where the victim is over 12 years old, it must be shown that the carnal knowledge with her was obtained against her
will. It is necessary that there be evidence of some resistance put up by the offended woman. It is not, however,
necessary that the offended party should exert all her efforts to prevent the carnal intercourse. It is enough that from
her resistance, it would appear that the carnal intercourse is against her will.
Mere initial resistance, which does not indicate refusal on the part of the offended party to the sexual intercourse, will
not be enough to bring about the crime of rape.
Note that it has been held that in the crime of rape, conviction does not require medico-legal finding of any
penetration on the part of the woman. A medico-legal certificate is not necessary or indispensable to convict the
accused of the crime of rape.
It has also been held that although the offended woman who is the victim of the rape failed to adduce evidence
regarding the damages to her by reason of the rape, the court may take judicial notice that there is such damage in
crimes against chastity. The standard amount given now is P 50,000.00, with or without evidence of any moral
damage.

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An accused may be convicted of rape on the sole testimony of the offended woman. It does not require that testimony
be corroborated before a conviction may stand. This is particularly true if the commission of the rape is such that the
narration of the offended woman would lead to no other conclusion except that the rape was committed.
Illustration:
Daughter accuses her own father of having raped her.
Allegation of several accused that the woman consented to their sexual intercourse with her is a proposition which is
revolting to reason that a woman would allow more than one man to have sexual intercourse with her in the presence
of the others.
It has also been ruled that rape can be committed in a standing position because complete penetration is not
necessary. The slightest penetration contact with the labia will consummate the rape.
On the other hand, as long as there is an intent to effect sexual cohesion, although unsuccessful, the crime becomes
attempted rape. However, if that intention is not proven, the offender can only be convicted of acts of
lasciviousness.
The main distinction between the crime of attempted rape and acts of lasciviousness is the intent to lie with the
offended woman.
In a case where the accused jumped upon a woman and threw her to the ground, although the accused raised her
skirts, the accused did not make any effort to remove her underwear. Instead, he removed his own underwear and
placed himself on top of the woman and started performing sexual movements. Thereafter, when he was finished, he
stood up and left. The crime committed is only acts of lasciviousness and not attempted rape. The fact that he did
not remove the underwear of the victim indicates that he does not have a real intention to effect a penetration. It
was only to satisfy a lewd design.
The new law, R.A. 8353, added new circumstance that is, when carnal knowledge was had by means of fraudulent
machinations or grave abuse of authority. It would seem that if a woman of majority age had sexual intercourse with a
man through the latters scheme of pretending to marry her which is the condition upon which the woman agreed to
have sex with him, manipulating a sham marriage, the man would be guilty of Rape under this Section. So also, a
prostitute who willingly had sexual congress with a man upon the latters assurance that she would be paid
handsomely, may be guilty of Rape if later on he refuses to pay the said amount.
A person in authority who maneuvered a scheme where a woman landed in jail, and who upon promise of
being released after having sex with the officer, willingly consented to the sexual act, may also be found guilty of Rape
under this new section.
In Rape cases, court must always be guided by the following principles:
1. An accusation of rape can be made with facility; it is difficult to prove, but more difficult for the person accused,
though innocent, to disprove;
2. In view of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the
complainant must be scrutinized with extreme caution; and
3. The evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from
the weakness of the evidence for the defense. (People vs. Ricafort)