Notes in Criminal Law II by Jose D.

Dula II
Article/Crime
Article 246 Parricide

Act Punishable/Elements/Definitions
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

Article 247
Death or
physical injuries
inflicted under
exceptional
circumstances

Requisites for application of Article 247:

1. That a legally married person or a
parent surprises his spouse or his
daughter, the latter under 18 years of
age and living with him, in the act of
committing sexual intercourse with
another person.
2. That he or 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
3. That he has not promoted or facilitated
the prostitution of his wife or daughter
or that he or she has not consented tot
the infidelity of the other spouse.

Fiscal Nelson Salva

Penalty
RP to Death

Notes
Relationship of the offender with the victim is the essential element
of this crime.
The other ascendant or descendant must be legitimate
He who kills an illegitimate grandfather or an illegitimate grandson
is not guilty of parricide, but of simple homicide or murder as the
case may be.
The father, mother or child may be legitimate or illegitimate
The child should not be less than three years old
The spouse must be legitimatewhen a Moro has three wives and
he killed his third wife, he cannot be held liable for parricide
Marriages among Muslims or among members of the ethnic cultural
communities performed in accordance with their customs or
rites or practices are valid
Relationship must be allegedwife of victim cannot be convicted of
parricide if charged only with murder
A stranger, who cooperates and takes part in the commission of the
crime of parricide, is not guilty of parricide but homicide or
murder, as the case may be.
The accused must be a legally married person
The wife is entitled to the benefits of Article 247
The word surprise means to come upon suddenly and unexpectedly
Surprising the spouse or young daughter in the act of sexual
intercourse, indispensable requisite.
Article 247 is not applicable when the accused did not see his spouse
in the act of sexual intercourse with another person.
But it is enough that the circumstances show reasonably that the
carnal act is being committed or has just been committed
The killing or inflicting of physical injuries must be in the act of
sexual intercourse or immediately thereafter.
The discovery, the escape, the pursuit and the killing must all form
part of one continuous act.
The killing must be the direct by-product of the accuseds rage
The law, when the circumstances provided by this article are
present, considers the spouse or parent as acting in a justified
burst of passion.
The accused cannot be held liable for injuries sustained by third
persons as a result thereof. (People v. Abarca)
Not applicable to person who consented to the infidelity of spouse
or who facilitated the prostitution of his wife or daughter.

Notes in Criminal Law II by Jose D. Dula II

Article/Crime
Article 248 Murder

Act Punishable/Elements/Definitions
Murder is the unlawful killing of any person
which is not parricide or infanticide, provided
that any of the following circumstances is
present:
1. With treachery, taking advantage of superior
strength, with the aid of armed men, or
employing means to weaken the defense or of
means or persons to insure or afford impunity.
2. In consideration of a price, reward, or
promise.
3. By means of 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
motor vehicles, or with the use of any other
means involving great waste and ruin.
4. On occasion of any of the calamities
enumerated in the preceding paragraph, or of
an earthquake, eruption of a volcano,
destructive cyclone, epidemic or other public
calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.
Elements:
1. That a person was killed
2. That the accused kill him
3. That the killing was attended by any of
the qualifying circumstances
mentioned in Article 248
4. The killing is not parricide or homicide
The word outraging means to commit an
extremely vicious or deeply insulting act.
The word scoffing means to jeer, and implies

Fiscal Nelson Salva

Penalty
RP to death

Notes
In murder, the victim must be killed to consummate the crime. If
the victim is not killed, it is either attempted or frustrated
murder.
The offender must have intent to kill to be liable for murder
committed by means of fire, or other means enumerated in par. 3
of Article 248.
Killing a person by means of fire is murder only when there is actual
design to kill on the part of the offender (US v. Burns)
But killing a person with treachery is murder even if there is no
intent to kill.
Rules for the application of the circumstances which qualify the
killing to murder:
a. That murder will exist with only one of the circumstances
described in Article 248. When more than one of said
circumstances are present, the others must be considered as
generic aggravating.
b. That when the other circumstances are absorbed or included
in one qualifying circumstance, they cannot be considered as
generic aggravating.
c. That any of the qualifying circumstances enumerated in
Article 248 must be alleged in the information.
The killing of the victims is qualified with treachery, when the
shooting was sudden and unexpected, and the victims were not
in a position to defend themselves. (People v. Aguilar)
Treachery is present when the shooting of the victim with a carbine
is sudden and unexpected to the point of incapacitating the
victim to repel or escape it. And where the hands of the victim
were raised as ordered by the accused who fired at him without
any risk to the accused is treachery is present.
An attack made by a man with a weapon upon a girl which resulted
in her death is murder because the offender had taken advantage
of superior strength. His sex and weapon gave him superiority of
strength.
If the accused had companions who were armed when he
committed the crime, this circumstance is considered present.
A person who suddenly throws a cloak over the head of his
opponent and while in this situation he kills him or one who
suddenly cast sand or dirt upon the eyes of the victim and then
kills him, evidently employs means which weaken the defense.

Notes in Criminal Law II by Jose D. Dula II

Article/Crime

Article 249
Homicide

Act Punishable/Elements/Definitions
a showing of irreverence.

Homicide - is the unlawful killing of any

person, which is neither parricide, murder, nor
infanticide.
Elements:
1. That a person was killed
2. That the accused killed him without
any justifying circumstance;
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

Fiscal Nelson Salva

Penalty

RT
RP if victim is
under 12 years of
age

Notes
It seems that one who covered his face with handkerchief before
killing his victim is liable for murder, because he employed
means to insure or afford impunity.
When the Code declares that homicide committed by means of fire
shall be deemed murder, it is intended that there should be an
actual design to kill and that the use of fire should be purposely
adopted as a means to that end.
Treachery and premeditation are inherent in murder by poison
Killing a person on the occasion of inundation, shipwreck, eruption
of a volcano, epidemic etc., or any other public calamity, when
taken advantage of by the offender, qualifies the crime to
murder.
The circumstance of evident premeditation is present and it
qualifies the killing of a person to murder, when the prosecution
proves 1) the time when the offender determined (conceived) to
kill his victim; 2) an act of the offender manifestly indicating that
he clung to his determination to kill his victim; and 3) a sufficient
lapse of time (at least three hours) between the determination
and the execution of the killing.
There is cruelty when other injuries or wound are inflicted
deliberately by the offender, which are not necessary for the
killing of the victim. The victim must be alive when the other
injuries or wounds are inflicted.
The mere decapitation of the victims head constitutes outraging at
the corpse of the victim(People v.Whisenhunt).
Intent to kill is conclusively presumed when death resulted.
Evidence of intent to kill is important only in an attempted or
frustrated homicide. If there is no intent to kill on the part of the
offender, he is liable for physical injuries.
Usually intent to kill is shown by the kind of weapon used by the
offender and the parts of the victims body at which the weapon
was aimed, as shown by the wounds inflicted.
Intent to kill must be proved beyond reasonable doubt. The
inference of intent to kill should not be drawn in the absence of
circumstances sufficient to prove such intent beyond reasonable
doubt.
The killing must not be justified
That the death of the deceased was due to his refusal to be operated
on, not a defense.

Notes in Criminal Law II by Jose D. Dula II

Article/Crime

Act Punishable/Elements/Definitions
Accidental homicide -- is the death of the
person brought about by a lawful act
performed with proper care and skill, and
without homicidal intent.
Corpus delicti means the actual
commission of the crime charged. Means
that the crime was actually perpetrated,
and does not refer to the body of the
murder person.

Fiscal Nelson Salva

Penalty

Article 250
Penalty for
frustrated
parricide,
murder or
homicide
Article 251
Death caused in
a tumultuous
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 is 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.

Article 252
Physical injuries
inflicted in a
tumultuous
affray

Elements:
1. That there is 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

Notes
In the absence of clear proof of any circumstance that would qualify
as murder the killing of the deceased, the guilty person should be
sentence only for homicide
The offender should not be the father, mother or child, or legitimate
other ascendant or legitimate other descendant or spouse of the
deceased for otherwise the crime would be parricide.
When the act of mortally wounding and the fact of suicide by the
victim concur
Use of unlicensed firearm is an aggravating circumstance.
Courts may impose a penalty two degrees lower for frustrated
parricide, murder or homicide.
Courts may impose a penalty three degrees lower for attempted
parricide, murder or homicide.
An attempt on, or a conspiracy against, the life of the Chief
Executive, etc. is punishable by death

Tumultuous affray exist when at least four persons took part.

Where there are two identified groups of men who assaulted each
other, then there is no tumultuous affray. In this case, the
accused were convicted of homicide.
When there was confusion in the fight and the person who inflicted
the wounds could not be identified, the crime is death caused in a
PC med to max-if it
tumultuous affray.
cannot be
The person killed in the course of affray need not be one of the
determined who
participants in the affray
inflicted serious
If the one who inflicted the fatal wound is known, the crime is not
physical injuries o
homicide in tumultuous affray but homicide under Article 249
the deceased upon
against the one who inflicted the wound.
all those who shall The serious physical injuries, if inflicted by one of the participants,
have used violence
should not be the cause of death of the accused.
upon the person of
the victim
All those who
When a person is killed in the affray, and the one who inflicted
appear to have used
serious physical injuries is known, Article 252 is not applicable.
violence upon the
The injured party in the crime of physical injuries inflicted in a
person of the
tumultuous affray must be one or some of the participants in the
offended party shall
affray.
suffer the penalty
Penalty is one degree lower than that for the physical injury
next lower in
inflicted.
PM-if the person
who inflicted
serious physical
injuries could be
identified.

Notes in Criminal Law II by Jose D. Dula II

Article/Crime

Article 253
Giving
assistance to
suicide

Act Punishable/Elements/Definitions
3. That the person responsible therefore
cannot be identified
4. That all those who appear to have used
violence upon the person of the
offended party are known.
Acts punishable:
1. By assisting another to commit suicide,
whether the suicide is consummated or
not.
2. By lending his assistance to another to
commit suicide to the extent of doing
the killing himself
Euthanasia is not lending assistance to
suicide. A doctor who resorts to killing his
patient may be liable for murder.

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

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 kill the said child.
Infanticide may be defined as the killing of any

Fiscal Nelson Salva

Penalty
Notes
degree than that
Only those who used violence are punished, because if the one who
provided for the
caused the physical injuries is known, he will be liable for the
physical injuries so
physical injuries actually committed.
inflicted
The legislature intended to exclude slight physical injuries.
PM any person
If the suicide is not consummated has reference to the first way of
who shall assist
giving assistance to suicide, that is, furnishing the person to
another to commit
commit suicide the means with which to kill himself.
suicide
If the offender who lends his assistance performs acts to do the
RT if such person
killing himself, and the suicide is not consummated, the penalty
lends his assistance
of one or two degrees lower than that provided for consummated
to another to the
suicide should be impose depending whether it is frustrated or it
extent of doing the
is attempted suicide.
killing himself
AM med to max if
the suicide is not
consummated
PC min to max
The act constituting the offense is shooting another with any
firearm, without intent to kill him. If the firearm is not
discharged at a person, there is no crime of discharge of firearm.
Discharge towards the house of victim is not illegal discharge of
firearm.
Firing a un against the house of the offended party at random, not
knowing in what part of the house the people inside were is only
Alarm under Article 155 para. 1.
There must be no intention to kill. The purpose of the offender is
only to intimidate or frighten the offended party.
The crime is discharge of firearm, even if the gun was not pointed at
the offended party when it fired, as long as it was initially aimed
by the accused at or against the offended party.
RP to Death
Father or mother or legitimate other ascendant who kills a
child less than three days old, to suffer penalty for parricide
If committed by the
Other person who kills a child less than three days old, to
mother of the child
suffer the penalty for murder
for the purpose of
Concealing of dishonor is not an element of infanticide
concealing her
Only the mother and maternal grandparents of the child are
dishonor, she shall
entitled to the mitigating circumstance of concealing the
suffer PM med to
dishonor

Notes in Criminal Law II by Jose D. Dula II

Article/Crime

Article 256
Intentional
abortion

Act Punishable/Elements/Definitions
child less than three days of age, whether the
killer is the parent or grandparent, any other
relative of the child, or a stranger.

Abortion the willful killing of the foetus in the

uterus, or the violent expulsion of the foetus
from the maternal womb which results in the
death of the foetus.

Fiscal Nelson Salva

Penalty
max
If committed for
the same purpose
by the maternal
grandparents or
either of them, the
penalty shall be RT.

RT First way
PM Second way
PC med to max
thirdway

Article 257
Unintentional
abortion

Ways of committing intentional abortion

1. By using any violence upon the person
of the pregnant woman.
2. By acting, but without using violence,
without consent of the woman.
3. By acting, with the consent of the
pregnant woman
Elements:
1. That there is a pregnant woman
2. That the abortion is intended
3. That violence is exerted, or drugs or
beverages administered, or that the
accused otherwise acts upon such
pregnant woman
4. That as a result of the use of violence or
drugs or beverages upon her, or any
other act of the accused, the foetus dies,
either in the womb or after having been
expelled therefrom
Elements:
1. That there is a pregnant woman
2. That violence is used upon such
pregnant woman without intending an

Pc min to med

Notes
Delinquent mother who claims concealing dishonor must
be of good reputation. Thus, if she is a prostitute, she is not
entitled to a lesser penalty because she has no honor to
conceal
Stranger cooperating with the mother in killing a child less
than three days old is guilty of infanticide also but the
penalty is that for murder
No crime of infanticide is committed where the child was
born dead, or although born alive, it could not sustain an
independent life when it was killeda foetus about six
months old cannot subsist by itself, outside the maternal
womb.
The person who intentionally caused the abortion is liable
under article 256. The woman is liable under Article 258, if
she consented to the abortion caused on her. If she did not
consent to the abortion caused on her, she is not liable.
If the foetus could sustain an independent life, after its
separation from the maternal womb, and it is killed the
crime is infanticide.

Unintentional abortion is committed only by violence

The violence must be intentionally exerted
The accused is liable for abortion even if he did not know

Notes in Criminal Law II by Jose D. Dula II

Article/Crime

Article 258
Abortion
practiced by the
woman herself
or by her
parents

Article 259
Abortion
practiced by a
physician or
midwife and
dispensing of
abortive

Article 260
Responsibility
of participants
in a Duel

Act Punishable/Elements/Definitions
abortion
3. That the violence is intentionally
exerted
4. That as a result of the violence of the
foetus dies, either in the womb or after
having been expelled therefrom
Elements:
1. That there is a pregnant woman who
has suffered abortion
2. That abortion was intended
3. That the abortion is caused by:
a. The pregnant woman herself;
b. Any other person, with her
consent; or
c. Any of her parents, with her
consent for the purpose of
concealing her dishonor

Elements:
1. That there is a pregnant woman who
has suffered abortion
2. The abortion was 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.
As to the pharmacist the elements are:
1. That the offender is a pharmacist
2. That there is no proper prescription
from a physician
3. That the offender dispenses any
abortive
Duel is a formal or regular combat previously
concerted between two parties in the presence
of two or more seconds of lawful age on each
side, who make the selection of arms and fix all

Fiscal Nelson Salva

Penalty

Notes
that the woman was pregnant.
No intention to cause, no violence Article 256 or 257 does
not apply no abortion of any kind.

The woman is liable if she shall consent that any other

person should do so.
Only the woman or any of her parents is liable under Article
258, if the purpose of the latter is to conceal dishonor.
Liability of pregnant woman is mitigated if purpose is to
conceal dishonor
The reason for the mitigated responsibility is that when a
woman becomes pregnant out of an illicit relationship,
excited and obfuscated by the fear of dishonor being made
public, she either practices abortion to upon herself or
consents that any other person does so, to erase the traces
of her mistake
There is no mitigation for parents of pregnant woman even
if the purpose is to conceal dishonor.
Penalty for intentional abortion is imposed in its maximum
period on physician or midwife
Republic Act No. 4729, regulates sale, dispensation, and/or
distribution of contraceptive drugs and devices

PC med to max
par. 1
PC min to med
par. 2
PC med to max
par. 3

The penalty
provided for in
Article 256 in the
maximum.
Arresto Mayor
any pharmacist
who shall dispense
any abortive

RT First Kind
1.
Penalty provided
for second kind

Who are liable for duel:

The person who killed or inflicted physical injuries upon his
adversary, or both combatants in any other case, as
principals.

Notes in Criminal Law II by Jose D. Dula II

Article/Crime

Article 261
Challenging to a
Duel

Article 262
Mutilation

Penalty
(physical injuries)

Acts punished:
1. By killing ones adversary in a duel
2. By inflicting upon such adversary
physical injuries
3. By making a combat although no
physical injuries have been inflicted
Acts punished:
1. By challenging another to a duel
2. By inciting another to give or accept a
challenge to a duel
3. By scoffing at or decrying another
publicly for having refused to accept a
challenge to fight a duel

Arresto Mayor
Third Kind

The term mutilation means the lopping or

clipping off of some part of the body.

RT to RP First
kind

Elements of mutilation of the first kind:

1. That there be a castration, that is,
mutilation of organs necessary for
generation, such as penis or ovarium.
2. That the mutilation is caused purposely
and deliberately, that is, to deprive the
offended party of some essential organ
for reproduction

Article 263
Serious Physical
Injuries

Fiscal Nelson Salva

Act Punishable/Elements/Definitions
the other conditions of the fight.

It is committed
1. By wounding
2. By beating
3. By assaulting
4. By administering injurious substance
(Art. 264)
What are serious physical injuries?
1. When the injured person becomes
insane, imbecile, impotent or blind in
consequence of the physical injuries

PC minimum

PM med to max
Second kind

Notes
2. The seconds, as accomplices
The penalty is reclusion temporal even if physical injuries were
inflicted.

Nurse ill-feelings and moved by hatred, the accused

challenged the offended party to a duel, inciting the latter to
accept said challenge. Later, when the accused saw the
offended party running toward a nearby house, the former
ran after the latter, but desisted upon seeing that the
offended party had a companion. This is not challenging to
a duel but only light threats under Article 285 par. 2.
Mutilation of the first kind is castration which must be
made purposely
Castration consists of the amputation of whatever organ
is necessary for generation.
Two kinds of mutilation
1.

By intentionally mutilating another by depriving him, either

totally or partially, of some essential organ for
reproduction.
2. By intentionally making other mutilation, that is, by lopping
or 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 his body.
Paragraph 1 PM
Paragraph 2 PC
med to max
Paragraph 3 PC
min to med
Paragraph 4 AM
max to PC min.
Qualified serious

There must not be intent to kill. If there was intent to kill

when the offender inflicted any of the serious physical
injuries described in this article, the crime would be
frustrated or attempted murder, parricide, or homicide as
the case may be.
Explanation for Paragraph 1:
Impotent means inability to copulate. Properly used of
the male; but it also has been used synonymously with
sterility.

Notes in Criminal Law II by Jose D. Dula II

Article/Crime

Act Punishable/Elements/Definitions
inflicted.
2. When the injured person a) loses the
use of speech or the power to hear or
smell or loses an eye, a hand, a foot, an
arm, or a leg, or b) loses the use of any
such member or c) becomes
incapacitated for the work in which he
is habitually engaged, in consequence
of the physical injuries inflicted.
3. When the person injured a) becomes
deformed or b) loses any other member
of his body or c) loses the use there of
or d) becomes ill or incapacitated for
the performance of the work in which
he is habitually engaged for more than
90 days, in consequence of the physical
injuries inflicted.
4. When the injured person becomes ill or
incapacitated for labor for more than
30 days but not more than 90 days, as a
result of the physical injuries inflicted
Qualified serious physical injuries if the
offense is committed against any of the persons
enumerated in the article defining the crime of
parricide or with the attendance of any of the
circumstances mention in the article defining
the crime of murder, the law provides for
higher penalties

Fiscal Nelson Salva

Penalty
physical injuries
Paragraph 1 RT
medium to max.
Paragraph 2 one
period higher than
that of subdivision
number 2.
Paragraph 3 one
period higher than
that of subdivision
number 3.
Paragraph 4 one
period higher than
that of subdivision
number one.

Article 264
Administering
injurious
substance or
beverages

Elements:
1. That the offender inflicted upon
another any serious physical injury.
2. That it was done by knowingly
administering to him any injurious

Same as that of
Article 263

Notes
The blindness must be of two eyes and must be complete.
Mere weakness of vision is not contemplated.
Explanation for Paragraph 2:
It must be loss of power to hear of both ears. If there is loss
of power to hear of one ear only, it is under paragraph 3.
Loss of use of hand or incapacity for usual work must be
permanent.
All those mentioned in paragraph 2 are principal members
of the body.
Explanation for Paragraph 3:
Paragraph 3 covers any member which is not principal
member of the body.
It is a serious physical injury when the offended party
becomes deformed.
By deformity it is meant physical ugliness, permanent and
definite abnormality and must be conspicuous and visible.
Loss of one tooth which impaired appearance is deformity.
Loss of both outer ears constitutes deformity and also loss
of the power to hear. If there is loss of power to hear of both
ears as a result both outer ears, the crime should be
punished under par. 2 of Article 263
There is illness for a certain period of time, when the wound
inflicted did not heal within that period.
Explanation for Paragraph 4:
Paragraph 4 speaks of incapacity for any kind of labor.
Hospitalization for more than 30 days may mean either
illness or incapacity for labor for more than 30 days.
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 is only slight physical injuries
Lessening of efficiency due to injury is not incapacity
Serious physical injuries by excessive chastisement by
parents are not qualified.
It is frustrated murder when there is intent to kill.
If the accused did not know of the injurious nature of the
substances he administered, he is not liable under this
article.
Administering injurious substance means introducing into

Notes in Criminal Law II by Jose D. Dula II

Article/Crime

Act Punishable/Elements/Definitions
substances or beverages or by taking
advantage of his weakness of mind or
credulity
3. That he had no intent to kill

Fiscal Nelson Salva

Penalty

Article 265
Less serious
physical injuries

Article 266
Slight Physical
Injuries

Article 266-A

Matters to be noted in the crime of less serious

physical injuries
1. That the offended party is incapacitated
for labor for ten 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.
Qualified less serious physical injuries
1. First kind
a. When there is intent to insult or offend
the injured person or
b. There are circumstances adding
ignominy to the offense.
2. Second kind if victim is either
a. the offenders parents, ascendants,
guardians, curators or teachers; or
b. Persons of rank or person in authority,
provided the crime is not direct assault
Three kinds of slight physical injuries
1. Physical injuries which incapacitate the
offended party from one to nine days,
or required medical attendance for the
same period.
2. Physical injuries which did not prevent
the offended party from engaging in his
habitual work or which did not require
medical attendance.
3. Ill-treatment of another by deed
without causing and injury
Classification of Rape

Less serious
physical injuries
Arresto Mayor

Qualified less
serious physical
injuries under
first kind an
additional P500

Notes
the body the substance.
Article 264 does not apply when the physical injuries that
result are less serious or slight. They will be treated under
Article 265 or Article 266, as the case may be.
By taking advantage of his weakness of mind or credulity
may takes place in the case of witchcraft, philters,
magnetism, etc.
Medical attendance or incapacity is require in less serious
physical injuries
The crime is less serious physical injuries even if there was
no incapacity, but the medical treatment was for 13 days
It is only slight physical injury when there is no medical
attendance or incapacity for labor.
Shall require refers to the actual medical attendance.
There must be proof as to the period required medical
attendance.

PC min to med if
under Second kind

First Kind - Arresto

menor
Second Kind
Arresto menor or a
fine not exceeding
200 pesos and
censure
Arresto menor in
its minimum
period or a fine not
exceeding 50 pesos
Rape committed

Some hours after nine days, not amounting to ten days

Example of para. 2: Contusion on the face or black eye
When there is no evidence of actual injury, it is only slight
physical injuries
Example of para. 3: any physical violence which does not
produce injury, such as slapping the face of the offended
party, without causing dishonor.

The contact of the male penis with the womans vagina is

Notes in Criminal Law II by Jose D. Dula II

Article/Crime
Rape

Act Punishable/Elements/Definitions
1. Rape through sexual intercourse
without the consent of the woman
(Traditional Rape) Par. 1
2. Rape through sexual assault. Par. 2
Elements of Traditional Rape
1. That the offender is a man;
2. That the offender had carnal knowledge
of a woman;
3. That such act is accomplished under
any of the following circumstances:
a. By using force or intimidation; or
b. When the woman is deprived of
reason or otherwise unconscious;
c. By means of fraudulent
machination or grave abuse of
authority; or
d. When the woman is under 12 years
of age or is demented.
Elements of Rape under paragraph 2:
1. That the offender commits an act of
sexual assault;
2. That the act of sexual assault is
committed by any of the following
means;
a. By inserting his penis in another
persons mouth or anal orifice; or
b. By inserting any instrument or
object into the genital or anal
orifice of another person;
3. That he act of sexual assault is
accomplished under any of the
following circumstances:
a. By using force or intimidation
b. When the woman is deprived of
reason or otherwise unconscious;
c. By means of fraudulent
machination or grave abuse of
authority;
d. When the woman is under 12 years
of age or demented

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Penalty
under any of the
four (4)
circumstances
Par. 1 RP
Par. 2 PM

Rape committed
with the use of
deadly weapon or
by two or more
persons
Par. 1 RP to death
Par. 2 PM to RT
Rape where victim
becomes insane
Par. 1 RP to death
Par. 2 RT
Attempted rape
and homicide is
committed
Par. 1 RP to death
Par. 2 RT to RP

Notes
referred to as rape by sexual intercourse
Penetration, even partial is necessary. The slightest
penetration is enough. Proof of emission is not necessary.
The touching of labia majora or the labia minora of the
pudendum constitutes consummated rape.
Jurisprudence dictates that labia majora must be entered
for rape to be consummated, and not merely for the penis to
stroke the surface of the female organ. Thus, a grazing of
the surface of the female organ or touching the mons pubis
of the pudendum is not sufficient to constitute
consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia
of the pudendum by the penis there can be no
consummated rape; at most, it can only be attempted rape
if not acts of lasciviousness (People v. Campuhan)
If there is no sexual intercourse and only acts of lewdness
are performed, the crime may be rape through sexual
assault under par. 2 or acts of lasciviousness under Article
336.
A broken hymen is not an essential element of rape
Exact date of sexual assault not an essential element of
rape.

Paragraph 2.

A violation of the body orifices by the fingers is within the expanded

definition of rape under RA 8353.
By using force and intimidation A verbal refusal alone will not do.
Par.1 Death
There must be physical struggle, taxing her powers to the utmost.
Par. 2 RP
Force employed against the victim of rape need not be of such
character as could be resisted
Rape with
The test is whether the threat or intimidation produces a reasonable
aggravating/qualify
fear in the mind of the victim that if she resists or does not yield
ing circumstance
to the desires of the accused, the threat would be carried out.
Where resistance would be futile, offering none at all does not
Par.1 - Death
amount to consent to the sexual assault.
Par. 2 RT
Intimidation must be viewed in the light of the victims perception
and judgment at the time of rape and not by any hard and fast
The subsequent
rule.
Rape with
homicide

Notes in Criminal Law II by Jose D. Dula II

Article/Crime

Act Punishable/Elements/Definitions
Consummated Rape it is not essential that
there be a complete penetration of the female
organ; neither is it essential that there be a
rupture of the hymen. It is enough that the
labia of the female organ was penetrated. The
slightest penetration of the labia consummates
the crime of rape (People v. Oscar)
There is no crime of frustrated rape
Attempted rape was committed by the accused
after raising the dress of the woman then asleep
and placing himself on top of her, and when the
woman was awakened the accused threatened
her with a knife, but because of her continued
shouting and offering of resistance, a neighbor
came to her rescue.
Statutory Rape: When the girl is under 12 years
of age

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Penalty
Notes
valid marriage
Moral ascendancy or influence, held to substitute for the element of
between the
physical force or intimidation.
offender and the
Rape may be proved by the uncorroborated testimony of the
offended party shall
offended woman.
extinguish the
In the rape of a woman deprived of reason or otherwise
criminal action or
unconscious, the victim has no will.
the penalty
imposed.
In case it is the
legal husband who
is the offender, the
subsequent
forgiveness by the
wife as the
offended party shall
extinguish the
criminal action or
the penalty:
Provided, that the
crime shall not be
extinguished or the
penalty shall not be
abated if the
marriage is void ab
initio.

Statutory Rape
Where the offended party is less than twelve years of age,
rape is committed although she consented to the sexual act.
Sexual intercourse with a nine-year-old girl is rape
Rape is committed even if the girl under 12 years is a
prostitute
Burden of Proof in Statutory Rape
The prosecution carries the burden of proving:
1. The age of the complainant
2. The identity of the accused
3. The sexual intercourse between the accused and the
complainant

The fact that the offended party may have been of an unchaste
character constitutes no defense in a charge of rape, provided
that the illicit relations were committed with force and violence
(People v. Blanco)
Rape with homicide and Robbery with Rape are special complex
crimes.
Rape with homicide Illustrations
1. Committed by the accused who, while raping a 6-year old
girl, strangled her to death in order to silence her
2. The rapist who was suffering from gonorrhea, infected the
victim who died as a result
When the homicide is committed NOT by reason or on the occasion
of the rape the accused murdered two sisters. As the elder sister
was dying, the accused had carnal intercourse with her. This is not
special complex crime of rape with homicide since the victim was
already at the threshold of death when she was ravished. That

Notes in Criminal Law II by Jose D. Dula II

Article/Crime

Act Punishable/Elements/Definitions

Fiscal Nelson Salva

Penalty

Notes
bestiality may be regarded either as a form of ignominy causing
disgrace or as a form of cruelty which aggravated the murder of the
elder sister.